G.R. No.
L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the
CFI of Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K.
KALAW, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition before the Court of First
Instance of Batangas, Branch VI, Lipa City, for the probate of her
holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a
resident of Lipa City, being of sound and disposing mind and
memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic
church of Lipa City. In accordance with the rights of said Church,
and that my executrix hereinafter named provide and erect at the
expose of my state a suitable monument to perpetuate my
memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a
sister of the testatrix as her sole heir. Hence, on November 10,
1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by
the full signature of the testatrix as required by Article 814 of the
Civil Code reading:
Art. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will the
testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written,
should be given effect and probated so that she could be the sole
heir thereunder.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:
1
The document Exhibit "C" was submitted to the National testamento, segun la regla de jurisprudencia establecida en la sentencia
Bureau of Investigation for examination. The NBI
reported that the handwriting, the signature, the
insertions and/or additions and the initial were made by
one and the same person. Consequently, Exhibit "C" was
the handwriting of the decedent, Natividad K. Kalaw.
The only question is whether the win, Exhibit 'C', should
be admitted to probate although the alterations and/or
insertions or additions above-mentioned were not
authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner
contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves
agreed thru their counsel to submit the Document to the
NBI FOR EXAMINATIONS. This is untenable. The
parties did not agree, nor was it impliedly understood,
that the oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article
814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by the full signature
of the testatrix Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing
that since the alterations and/or insertions were the testatrix, the
denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in an
Order, dated November 2, 1973, on the ground that "Article 814 of
the Civil Code being , clear and explicit, (it) requires no necessity
for interpretation."
From that Order, dated September 3, 1973, denying probate, and
the Order dated November 2, 1973 denying reconsideration,
ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not the original unaltered text after
subsequent alterations and insertions were voided by the Trial
Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will litem not
been noted under his signature, ... the Will is not thereby
invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined.1 Manresa gave an Identical
commentary when he said "la omision de la salvedad no anula el
de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only
one substantial provision, which was altered by substituting the original
heir with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that
the entire Will is voided or revoked for the simple reason that nothing
remains in the Will after that which could remain valid. To state that the
Will as first written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can neither be
given effect because she failed to authenticate it in the manner required
by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect
only the efficacy of the altered words themselves but not the essence
and validity of the Will itself. As it is, with the erasures, cancellations
and alterations made by the testatrix herein, her real intention cannot be
determined with certitude. As Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code, whence Article 814 of the new
Civil Code was derived:
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto.
No costs.
SO ORDERED.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp.
Proc. No. 8432, was opposed by the appellees Amparo Aranza
 Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias
and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will within
twenty days of the death of the testator as required by
Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did
not contain a disposition of property after death and was
not intended to take effect after death, and therefore it
was not a will
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise it
would produce no effect, as held in Gam v. Yap, 104
Phil. 509; and
(4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of
the case with another case Sp. Proc. No, 8275). Their
motion was granted by the court in an order dated April
4, 1977.
On November 13, 1978, following the consolidation of
the cases, the appellees moved again to dismiss the
petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss
was denied by the court in its order of February 23,
1979.
The appellees then filed a motion for reconsideration on
the ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to
which the appellant in turn filed an opposition. On July
23, 1979, the court set aside its order of February 23,
1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original
copy of the holographic will is lost, a copy thereof
cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic
wills the law, it is reasonable to suppose, regards the
2
document itself as the material proof of authenticity of "Perhaps it may be proved by a photographic or photostatic copy. Even
said wills. a mimeographed or carbon copy; or by other similar means, if any,
MOREOVER, this Court notes that the alleged whereby the authenticity of the handwriting of the deceased may be
holographic will was executed on January 25, 1962 while exhibited and tested before the probate court," Evidently, the photostatic
Ricardo B. Bonilla died on May 13, 1976. In view of the or xerox copy of the lost or destroyed holographic will may be admitted
lapse of more than 14 years from the time of the because then the authenticity of the handwriting of the deceased can be
execution of the will to the death of the decedent, the fact determined by the probate court.
that the original of the will could not be located shows to WHEREFORE, the order of the lower court dated October 3, 1979,
our mind that the decedent had discarded before his denying appellant's motion for reconsideration dated August 9, 1979, of
death his allegedly missing Holographic Will. the Order dated July 23, 1979, dismissing her petition to approve the
Appellant's motion for reconsideration was denied. Hence, an will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
appeal to the Court of Appeals in which it is contended that the SO ORDERED.
dismissal of appellant's petition is contrary to law and well-settled G.R. No. 103554 May 28, 1993
jurisprudence.
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
On July 7, 1980, appellees moved to forward the case to this Court JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
on the ground that the appeal does not involve question of fact and HELEN CABALLERO, SANTOS CABALLERO, PABLO
alleged that the trial court committed the following assigned errors: CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
I. THE LOWER COURT ERRED IN HOLDING THAT RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-
A LOST HOLOGRAPHIC WILL MAY NOT BE Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
PROVED BY A COPY THEREOF; CANEDA, represented herein by his heirs, JESUS CANEDA,
II. THE LOWER COURT ERRED IN HOLDING NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
THAT THE DECEDENT HAS DISCARDED BEFORE vs.
HIS DEATH THE MISSING HOLOGRAPHIC WILL; HON. COURT OF APPEALS and WILLIAM CABRERA, as
Special Administrator of the Estate of Mateo Caballero, respondents.
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL. Palma, Palma & Associates for petitioners.
The only question here is whether a holographic will which was Emilio Lumontad, Jr. for private respondents.
lost or cannot be found can be proved by means of a photostatic
copy. Pursuant to Article 811 of the Civil Code, probate of REGALADO, J.:
holographic wills is the allowance of the will by the court after its
due execution has been proved. The probate may be uncontested or Presented for resolution by this Court in the present petition for review
not. If uncontested, at least one Identifying witness is required and, on certiorari is the issue of whether or not the attestation clause
if no witness is available, experts may be resorted to. If contested, contained in the last will and testament of the late Mateo Caballero
at least three Identifying witnesses are required. However, if the complies with the requirements of Article 805, in relation to Article 809,
holographic will has been lost or destroyed and no other copy is of the Civil Code.
available, the will can not be probated because the best and only The records show that on December 5, 1978, Mateo Caballero, a
evidence is the handwriting of the testator in said will. It is widower without any children and already in the twilight years of his
necessary that there be a comparison between sample handwritten life, executed a last will and testament at his residence in Talisay, Cebu
statements of the testator and the handwritten will. But, a before three attesting witnesses, namely, Cipriano Labuca, Gregorio
photostatic copy or xerox copy of the holographic will may be Cabando and Flaviano Toregosa. The said testator was duly assisted by
allowed because comparison can be made with the standard his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo
writings of the testator. In the case of Gam vs. Yap, 104 PHIL. Manigos, in the preparation of that last will.1 It was declared therein,
509, the Court ruled that "the execution and the contents of a lost among other things, that the testator was leaving by way of legacies and
or destroyed holographic will may not be proved by the bare devises his real and personal properties to Presentacion Gaviola, Angel
testimony of witnesses who have seen and/or read such will. The Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
will itself must be presented; otherwise, it shall produce no effect. Marcosa Alcantara, all of whom do not appear to be related to the
The law regards the document itself as material proof of testator.2
authenticity." But, in Footnote 8 of said decision, it says that
Four months later, or on April 4, 1979, Mateo Caballero himself
filed a petition docketed as Special Proceeding No. 3899-R before
Branch II of the then Court of First Instance of Cebu seeking the
probate of his last will and testament. The probate court set the
petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason to
another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court.3 On February
25, 1981, Benoni Cabrera, on of the legatees named in the will,
sough his appointment as special administrator of the testator's
estate, the estimated value of which was P24,000.00, and he was
so appointed by the probate court in its order of March 6, 1981.4
Thereafter, herein petitioners, claiming to be nephews and nieces
of the testator, instituted a second petition, entitled "In the Matter
of the Intestate Estate of Mateo Caballero" and docketed as
Special Proceeding No. 3965-R, before Branch IX of the aforesaid
Court of First Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in Branch II of
the Court of First Instance of Cebu and opposed thereat the
probate of the Testator's will and the appointment of a special
administrator for his estate.5
Benoni Cabrera died on February 8, 1982 hence the probate court,
now known as Branch XV of the Regional Trial Court of Cebu,
appointed William Cabrera as special administrator on June 21,
1983. Thereafter, on July 20, 1983, it issued an order for the
return of the records of Special Proceeding No. 3965-R to the
archives since the testate proceeding for the probate of the will
had to be heard and resolved first. On March 26, 1984 the case
was reraffled and eventually assigned to Branch XII of the
Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.6
In the course of the hearing in Special Proceeding No. 3899-R,
herein petitioners appeared as oppositors and objected to the
allowance of the testator's will on the ground that on the alleged
date of its execution, the testator was already in the poor state of
health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of
the signature of the testator therein.7
On the other hand, one of the attesting witnesses, Cipriano
Labuca, and the notary public Atty. Filoteo Manigos, testified that
the testator executed the will in question in their presence while
he was of sound and disposing mind and that, contrary to the
assertions of the oppositors, Mateo Caballero was in good health
and was not unduly influenced in any way in the execution of his
will. Labuca also testified that he and the other witnesses attested
and signed the will in the presence of the testator and of each
3
other. The other two attesting witnesses were not presented in the
probate hearing as the had died by then.8
On April 5, 1988, the probate court rendered a decision declaring
the will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of
the oppositors cannot overcome the positive testimonies
of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked
Exhibit "C" on December 5, 1978. Moreover, the fact
that it was Mateo Caballero who initiated the probate of
his Will during his lifetime when he caused the filing of
the original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will.
At the start, counsel for the oppositors manifested that he
would want the signature of Mateo Caballero in Exhibit
"C" examined by a handwriting expert of the NBI but it
would seem that despite their avowal and intention for
the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they
abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for
the oppositors.
All told, it is the finding of this Court that Exhibit "C" is
the Last Will and Testament of Mateo Caballero and that
it was executed in accordance with all the requisites of
the law.9
Undaunted by the said judgment of the probate court, petitioners
elevated the case in the Court of Appeals in CA-G.R. CV No.
19669. They asserted therein that the will in question is null and
void for the reason that its attestation clause is fatally defective
since it fails to specifically state that the instrumental witnesses to
the will witnessed the testator signing the will in their presence and
that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy
complied with the requirements of Art. 805 of the Civil
Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the
testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters of the upper part
of each page, as his Last Will and Testament, and he has
signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and
all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence
need be presented to indicate the meaning that the said will
was signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language
of the law would have it that the testator signed the will "in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely
or ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial compliance
with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of
respondent court, but the same was denied in the latter's resolution of
January 14, 1992, 12 hence this appeal now before us. Petitioners assert
that respondent court has ruled upon said issue in a manner not in
accord with the law and settled jurisprudence on the matter and are now
questioning once more, on the same ground as that raised before
respondent court, the validity of the attestation clause in the last will of
Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly
hereafter, after some prefatory observations which we feel should be
made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person
is permitted, with the formalities prescribed by law, to control to a
certain degree the disposition of his estate after his death. 13 Under the
Civil Code, there are two kinds of wills which a testator may
execute.14 the first kind is the ordinary or attested will, the execution of
which is governed by Articles 804 to 809 of the Code. Article 805
requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
 The attestation should state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a
notary public by a testator and the attesting witness. 15hence it is
likewise known as notarial will. Where the attestator is deaf or
deaf-mute, Article 807 requires that he must personally read the
will, if able to do so. Otherwise, he should designate two persons
who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the
will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is
acknowledged. 16
The other kind of will is the holographic will, which Article 810
defines as one that is entirely written, dated, and signed by the
testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in
both kinds of will is that they should be in writing and must have
been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation
clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise
need not even be known to the attesting witnesses. 18 The last
paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will
whereby the attesting witnesses certify that the instrument has
been executed before them and to the manner of the execution the
same. 19 It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the
essential formalities required by law has been observed. 20 It is
made for the purpose of preserving in a permanent form a record
of the facts that attended the execution of a particular will, so that
in case of failure of the memory of the attesting witnesses, or
other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the
complete lack of which would result in the invalidity of the
will, 22 should state (1) the number of the pages used upon which
4
the will is written; (2) that the testator signed, or expressly caused three attesting witnesses hereto.30 Since it is the proverbial bone of
another to sign, the will and every page thereof in the presence of contention, we reproduce it again for facility of reference:
the attesting witnesses; and (3) that the attesting witnesses We, the undersigned attesting Witnesses, whose Residences
witnessed the signing by the testator of the will and all its and postal addresses appear on the Opposite of our respective
pages, and that saidwitnesses also signed the will and every page names, we do hereby certify that the Testament was read by
thereof in the presence of the testator and of one another. him and the testator, MATEO CABALLERO; has published
The purpose of the law in requiring the clause to state the number unto us the foregoing Will consisting of THREE PAGES,
of pages on which the will is written is to safeguard against including the Acknowledgment, each page numbered
possible interpolation or omission of one or some of its pages and correlatively in the letters on the upper part of each page, as
to prevent any increase or decrease in the pages;23 whereas the his Last Will and Testament and he has the same and every
subscription of the signature of the testator and the attesting page thereof, on the spaces provided for his signature and on
witnesses is made for the purpose of authentication and the left hand margin, in the presence of the said testator and in
identification, and thus indicates that the will is the very same the presence of each and all of us.
instrument executed by the testator and attested to by the It will be noted that Article 805 requires that the witness should both
witnesses.24 attest and subscribe to the will in the presence of the testator and of one
Further, by attesting and subscribing to the will, the witnesses another. "Attestation" and "subscription" differ in meaning. Attestation
thereby declare the due execution of the will as embodied in the is the act of senses, while subscription is the act of the hand. The former
attestation clause.25 The attestation clause, therefore, provide is mental, the latter mechanical, and to attest a will is to know that it was
strong legal guaranties for the due execution of a will and to insure published as such, and to certify the facts required to constitute an actual
the authenticity thereof.26 As it appertains only to the witnesses and legal publication; but to subscribe a paper published as a will is only
and not to the testator, it need be signed only by them.27 Where it to write on the same paper the names of the witnesses, for the sole
is left unsigned, it would result in the invalidation of the will as it purpose of identification.31
would be possible and easy to add the clause on a subsequent In Taboada vs. Rizal,32 we clarified that attestation consists in
occasion in the absence of the testator and its witnesses.28 witnessing the testator's execution of the will in order to see and take
In its report, the Code Commission commented on the reasons of note mentally that those things are done which the statute requires for
the law for requiring the formalities to be followed in the execution the execution of a will and that the signature of the testator exists as a
of wills, in the following manner: fact. On the other hand, subscription is the signing of the witnesses'
The underlying and fundamental objectives permeating names upon the same paper for the purpose of identification of such
the provisions on the law on wills in this Project consists paper as the will which was executed by the testator. As it involves a
in the liberalization of the manner of their execution with mental act, there would be no means, therefore, of ascertaining by a
the end in view of giving the testator more freedom in physical examination of the will whether the witnesses had indeed
expressing his last wishes, but with sufficient safeguards signed in the presence of the testator and of each other unless this is
and restrictions to prevent the commission of fraud and substantially expressed in the attestation.
the exercise of undue and improper pressure and It is contended by petitioners that the aforequoted attestation clause, in
influence upon the testator. contravention of the express requirements of the third paragraph of
This objective is in accord with the modern tendency Article 805 of the Civil Code for attestation clauses, fails to specifically
with respect to the formalities in the execution of state the fact that the attesting witnesses the testator sign the will and all
wills. . . .29 its pages in their presence and that they, the witnesses, likewise signed
the will and every page thereof in the presence of the testator and of
2. An examination of the last will and testament of Mateo each other. We agree.
Caballero shows that it is comprised of three sheets all of which
have been numbered correlatively, with the left margin of each What is fairly apparent upon a careful reading of the attestation clause
page thereof bearing the respective signatures of the testator and herein assailed is the fact that while it recites that the testator indeed
the three attesting witnesses. The part of the will containing the signed the will and all its pages in the presence of the three attesting
testamentary dispositions is expressed in the Cebuano-Visayan witnesses and states as well the number of pages that were used, the
dialect and is signed at the foot thereof by the testator. The same does not expressly state therein the circumstance that said
attestation clause in question, on the other hand, is recited in the witnesses subscribed their respective signatures to the will in the
English language and is likewise signed at the end thereof by the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof,
on the spaces provided for his signature and on the left hand
margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last
Will and Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each and all of
us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the
testator signing in the presence of the witnesses since said phrase
immediately follows the words "he has signed the same and every
page thereof, on the spaces provided for his signature and on the
left hand margin." What is then clearly lacking, in the final logical
analysis , is the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that statement
required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in
pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of
the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in
the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if
it is not proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each page
by the three attesting witnesses, it certainly cannot be conclusively
inferred therefrom that the said witness affixed their respective
signatures in the presence of the testator and of each other since,
as petitioners correctly observed, the presence of said signatures
only establishes the fact that it was indeed signed, but it does not
prove that the attesting witnesses did subscribe to the will in the
presence of the testator and of each other. The execution of a will
is supposed to be one act so that where the testator and the
witnesses sign on various days or occasions and in various
combinations, the will cannot be stamped with the imprimatur of
effectivity.33
We believe that the further comment of former Justice J.B.L.
Reyes34 regarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is correct
5
and should be applied in the case under consideration, as well as to
future cases with similar questions:
. . . The rule must be limited to disregarding those defects evidence thereof, since an overall appreciation of the contents of the will
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered;
whether the signatures appear in each and every page;
whether the subscribing witnesses are three or the will
was notarized. All theses are facts that the will itself can resorting to extrinsic evidence to prove the same and would accordingly
reveal, and defects or even omissions concerning them in be doing by the indirection what in law he cannot do directly.
the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons required divergence of views as to which manner of interpretation should be
to sign did so in the presence of each other must
substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the
attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved
that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to
evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed each
and every page of the will in the presence of the testator and of
each other.35 In such a situation, the defect is not only in the form
or language of the attestation clause but the total absence of a
specific element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect
complained of in the present case since there is no plausible way
by which we can read into the questioned attestation clause
statement, or an implication thereof, that the attesting witness did
actually bear witness to the signing by the testator of the will and
all of its pages and that said instrumental witnesses also signed the
will and every page thereof in the presence of the testator and of
one another.
Furthermore, the rule on substantial compliance in Article 809
cannot be revoked or relied on by respondents since it presupposes
that the defects in the attestation clause can be cured or supplied by
the text of the will or a consideration of matters apparent therefrom
which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual requirements
were actually complied within the execution of the will. In other
words, defects must be remedied by intrinsic evidence supplied by
the will itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied by only extrinsic
yields no basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements
by the instrumental witnesses, oblivious of the fact that he is thereby
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements
were at that time embodied primarily in Section 618 of Act No. 190, the
Code of Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in Act. No.
190 and the amendment thereto were practically reproduced and
adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was
first laid down in the case of Abangan vs. Abangan,36 where it was held
that the object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guarantee their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain
these primordial ends. Nonetheless, it was also emphasized that one
must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will, hence when
an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will,
must be disregarded. The subsequent cases of Avera vs.
Garcia,37 Aldaba vs. Roque,38 Unson vs. Abella,39 Pecson vs.
Coronel,40 Fernandez vs. Vergel de Dios, et al.,41and Nayve vs. Mojal,
et al.42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe
the formalities that should be observed in the execution of wills are
mandatory in nature and are to be strictly construed was followed in the
subsequent cases of In the Matter of the Estate of Saguinsin,43 In re
Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of
Neumark, 46and Sano vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to
clarify the seemingly conflicting decisions in the aforementioned cases.
In said case of Gumban, the attestation clause had failed to state that the
witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was
disallowed, with these reasons therefor:
 In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of
this court beginning with (I)n the Matter of the (E)state
of Saguinsin ([1920], 41 Phil., 875), continuing with In
re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs.
Navas L. Sioca [1922], 43 Phil., 405), and In re Estate
of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee
counters with the citation of a series of cases beginning
with Abangan vs. Abangan ([1919], 40 Phil., 476),
continuing through Aldaba vs. Roque ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios ([1924], 46
Phil., 922), and culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last analysis, our
task is to contrast and, if possible, conciliate the last two
decisions cited by opposing counsel, namely, those
of Sano vs. Quintana, supra, and Nayve vs. Mojal and
Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided
that an attestation clause which does not recite that the
witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator
is defective, and such a defect annuls the will. The case
of Uy Coque vs. Sioca, supra, was cited, but the case
of Nayve vs. Mojal and Aguilar, supra, was not
mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator
and the witnesses reciprocally saw the signing of the
will, for such an act cannot be proved by the mere
exhibition of the will, if it is not stated therein. It was
also held that the fact that the testator and the witnesses
signed each and every page of the will can be proved
also by the mere examination of the signatures
appearing on the document itself, and the omission to
state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in doctrine.
Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the
other, we reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place,
the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two
strong dissenting opinions; the Quintana decision was
concurred in by seven members of the court, a clear
6
majority, with one formal dissent. In the second place,
the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in
December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the
Quintana decision is believed more nearly to conform to
the applicable provisions of the law.
The right to dispose of property by will is governed
entirely by statute. The law of the case is here found in
section 61 of the Code of Civil Procedure as amended by
Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as
amended that "No will . . . shall be valid . . . unless . . .."
It is further provided in the same section that "The
attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all pages thereof
in the presence of the testator and of each other." Codal
section 634 provides that "The will shall be disallowed in
either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously
goes further and makes use of the negative, to enforce
legislative intention. It is not within the province of the
courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano
vs. Quintana, supra, and, to the extent necessary, modify
the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the
seeming diversity of views that was earlier threshed out therein.
The cases of Quinto vs. Morata,49Rodriguez vs.
Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of
Toray52 went the way of the ruling as restated in Gumban. But De
Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs.
De Gorostiza,55Sebastian vs. Panganiban,56 Rodriguez vs.
Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs.
Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs.
Liboro,64 veered away from the strict interpretation rule and
established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of
views and of the undeniable inclination towards a liberal
construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern
tendency to give a liberal approach to the interpretation of wills. Said
rule thus became what is now Article 809 of the Civil Code, with this
explanation of the Code Commission:
The present law provides for only one form of executing a
will, and that is, in accordance with the formalities prescribed
by Section 618 of the Code of Civil Procedure as amended by
Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section
618 of the Code of Civil Procedure, as amended regarding the
contents of the attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy Coque vs.
Sioca, 43 Phil. 405). These decisions necessarily restrained the
freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of
the formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October
18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618
of the Code of Civil Procedure before its amendment by Act
No. 2645 in the year 1916. To turn this attitude into a
legislative declaration and to attain the main objective of the
proposed Code in the liberalization of the manner of executing
wills, article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial
compliance with all the requirements of article 829."65
The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does
not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop;
they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit a
probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that
omissions which can be supplied by an examination of the will
itself, without the need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions
which cannot be supplied except by evidence aliunde would result
in the invalidation of the attestation clause and ultimately, of the
will itself.67
WHEREFORE, the petition is hereby GRANTED and the
impugned decision of respondent court is hereby REVERSED and
SET ASIDE. The court a quo is accordingly directed to forthwith
DISMISS its Special Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of Mateo Caballero) and
to REVIVE Special Proceeding No. 3965-R (In the matter of the
Intestate Estate of Mateo Caballero) as an active case and
thereafter duly proceed with the settlement of the estate of the said
decedent.
SO ORDERED.
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO
substituted by ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent), who died
on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules
in the execution of notarial wills, all self-evident in view of
Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of
pages on which the will is written is fatally defective. A will
whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a
will which does not contain an acknowledgment, but a
mere jurat, is fatally defective. Any one of these defects is
sufficient to deny probate. A notarial will with all three
defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code
provides a comprehensive catalog of imperatives for the proper
execution of a notarial will. Full and faithful compliance with all
the detailed requisites under Article 805 of the Code leave little
room for doubt as to the validity in the due execution of the
notarial will. Article 806 likewise imposes another safeguard to
7
the validity of notarial wills — that they be acknowledged before a
notary public by the testator and the witnesses. A notarial will
executed with indifference to these two codal provisions opens
itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984
with the Regional Trial Court (RTC) of Manila. The petition filed
by petitioner Felix Azuela sought to admit to probate the notarial
will of Eugenia E. Igsolo, which was notarized on 10 June 1981.
Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular
Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong
pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang
aking huling habilin at testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La
Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko
at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at
kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-
alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik
sa lote numero 28, Block 24 at nakapangalan sa Pechaten
Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa
bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24
na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong
buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego
St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubali’t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi
na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10
ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa
harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa
amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the
left-hand margin of both pages of the will, but not at the bottom of the
attestation clause.
The probate petition adverted to only two (2) heirs, legatees and
devisees of the decedent, namely: petitioner himself, and one Irene Lynn
Igsolo, who was alleged to have resided abroad. Petitioner prayed that
the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo),
who represented herself as the attorney-in-fact of "the 12 legitimate
heirs" of the decedent.2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was so it could be
utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real property,
all centering on petitioner’s right to occupy the properties of the
decedent.3 It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate
heirs, namely her grandchildren, who were then residing abroad.
Per records, it was subsequently alleged that decedent was the
widow of Bonifacio Igsolo, who died in 1965,4 and the mother of
a legitimate child, Asuncion E. Igsolo, who predeceased her
mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not
executed and attested to in accordance with law. She pointed out
that decedent’s signature did not appear on the second page of the
will, and the will was not properly acknowledged. These twin
arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order
dated 10 August 1992.6 The RTC favorably took into account the
testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore
"the modern tendency in respect to the formalities in the execution
of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;"7 and from this
perspective, rebutted oppositor’s arguments that the will was not
properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having
in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of
the law on the formal requirements of a will with the end in view
of giving the testator more freedom in expressing his last wishes,
this Court is persuaded to rule that the will in question is authentic
and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted
that at the end of the will after the signature of the testatrix, the
following statement is made under the sub-title, "Patunay Ng Mga
Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t
dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and
the acknowledgement and is considered by this Court as a
substantial compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not
signed by the subscribing witnesses at the bottom thereof, this
Court is of the view that the signing by the subscribing witnesses
8
on the left margin of the second page of the will containing the
attestation clause and acknowledgment, instead of at the bottom
thereof, substantially satisfies the purpose of identification and
attestation of the will.
With regard to the oppositor’s argument that the will was not
numbered correlatively in letters placed on upper part of each page
and that the attestation did not state the number of pages thereof, it
is worthy to note that the will is composed of only two pages. The
first page contains the entire text of the testamentary dispositions,
and the second page contains the last portion of the attestation
clause and acknowledgement. Such being so, the defects are not of
a serious nature as to invalidate the will. For the same reason, the
failure of the testatrix to affix her signature on the left margin of
the second page, which contains only the last portion of the
attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the
testatrix on the will is a forgery, the testimonies of the three
subscribing witnesses to the will are convincing enough to
establish the genuineness of the signature of the testatrix and the
due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto
Castillo, who had substituted his since deceased mother-in-law,
Geralda Castillo. In a Decision dated 17 August 1995, the Court of
Appeals reversed the trial court and ordered the dismissal of the
petition for probate.9 The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the
will, thus rendering the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the
Civil Code that "the number of pages used in a notarial will be
stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the application of Articles 805
and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required to
retain a copy of the will, or file another with the office of the Clerk of
Court.
The appellate court, in its Decision, considered only one defect, the
failure of the attestation clause to state the number of pages of the will.
But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the
number of pages of the will.12 There was an incomplete attempt to
comply with this requisite, a space having been allotted for the insertion
of the number of pages in the attestation clause. Yet the blank was never
filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court,
citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of
Andrada.14 In Uy Coque, the Court noted that among the defects of the
will in question was the failure of the attestation clause to state the
number of pages contained in the will.15 In ruling that the will could not
be admitted to probate, the Court made the following consideration
which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet
would completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other
hand, the total number of sheets is stated in the attestation clause the
falsification of the document will involve the inserting of new pages and
the forging of the signatures of the testator and witnesses in the margin,
a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause
of which failed to state the number of sheets or pages used. This
consideration alone was sufficient for the Court to declare "unanim[ity]
upon the point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied that the x x x
requirement affords additional security against the danger that the will
may be tampered with; and as the Legislature has seen fit to prescribe
this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will.
Yet the appellate court itself considered the import of these two
cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily
show that the attestation does not state the number of pages used
upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in
"Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the
attestation does not contain the number of pages used upon which
the Will is written. However, the Decisions of the Supreme Court
are not applicable in the aforementioned appeal at bench. This is
so because, in the case of "Manuel Singson versus Emilia
Florentino, et al., supra," although the attestation in the subject
Will did not state the number of pages used in the will, however,
the same was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure,
as amended by Act No. 2645, which requires that the attestation
clause shall state the number of pages or sheets upon which the
will is written, which requirement has been held to be mandatory
as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re
Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43
Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause
must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different.
While the attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last part of the
body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the realm of
similar cases where a broad and more liberal view has been
adopted to prevent the will of the testator from being defeated by
purely technical considerations." (page 165-165, supra)
(Underscoring supplied)
9
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the paragraph he cites from their report, that such liberalization be "but with
notarial acknowledgement in the Will states the number of pages sufficient safeguards and restrictions to prevent the commission of fraud
used in the: and the exercise of undue and improper pressure and influence upon the
"x x x testator."25
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for
the fact that, in this case, it is discernible from the entire will that it
is really and actually composed of only two pages duly signed by
the testatrix and her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The acknowledgment
itself states that "this Last Will and Testament consists of two
pages including this page" (pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the number of pages used in the
will is not stated in any part of the Will. The will does not even
contain any notarial acknowledgment wherein the number of pages
of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment
of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases
remains apropos, considering that the requirement that the
attestation state the number of pages of the will is extant from
Section 618.23 However, the enactment of the Civil Code in 1950
did put in force a rule of interpretation of the requirements of wills,
at least insofar as the attestation clause is concerned, that may vary
from the philosophy that governed these two cases. Article 809 of
the Civil Code states: "In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will
was in fact executed and attested in substantial compliance with all
the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their
execution with the end in view of giving the testator more
[freedom] in [expressing] his last wishes. This objective is in
accord with the [modern tendency] in respect to the formalities in
the execution of wills."24 However, petitioner conveniently omits
the qualification offered by the Code Commission in the very same
Caneda v. Court of Appeals26 features an extensive discussion made by
Justice Regalado, speaking for the Court on the conflicting views on the
manner of interpretation of the legal formalities required in the
execution of the attestation clause in wills.27 Uy
Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict
construction.28 However, the Code Commission opted to recommend a
more liberal construction through the "substantial compliance rule"
under Article 809. A cautionary note was struck though by Justice
J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects
or even omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes
in its assailed decision, considering that the failure to state the number
of pages of the will in the attestation clause is one of the defects which
cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that
the witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other,30 the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an examination of the
will itself, without the need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will
itself."31 Thus, a failure by the attestation clause to state that the testator
signed every page can be liberally construed, since that fact can be
checked by a visual examination; while a failure by the attestation
clause to state that the witnesses signed in one another’s presence
should be considered a fatal flaw since the attestation is the only textual
guarantee of compliance.32
The failure of the attestation clause to state the number of pages
on which the will was written remains a fatal flaw, despite Article
809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard
against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the pages.33 The
failure to state the number of pages equates with the absence of an
averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda,
there is substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised of, as was
the situation in Singson and Taboada. However, in this case, there
could have been no substantial compliance with the requirements
under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages
which comprise the will.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article
805. Whatever the inclinations of the members of the Code
Commission in incorporating Article 805, the fact remains that
they saw fit to prescribe substantially the same formal requisites
as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the
forgery or intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords the public
a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner established
in the will.35 The transcendent legislative intent, even as
expressed in the cited comments of the Code Commission, is
for the fruition of the testator’s incontestable desires, and not
for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of
even more critical defects that should necessarily lead to its
rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the instrumental
witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all
consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin."37 While
three (3) Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking
10
through Chief Justice Paras, ruled that the attestation clause had pages used upon which the will is written; the fact that the testator had
not been duly signed, rendering the will fatally defective. signed the will and every page thereof; and that they witnessed and
There is no question that the signatures of the three witnesses to signed the will and all the pages thereof in the presence of the testator
the will do not appear at the bottom of the attestation clause, and of one another. The only proof in the will that the witnesses have
although the page containing the same is signed by the witnesses stated these elemental facts would be their signatures on the attestation
on the left-hand margin. clause.
Thus, the subject will cannot be considered to have been validly attested
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts to by the instrumental witnesses, as they failed to sign the attestation
clause.
attending the execution of the will" required by law to be made by
the attesting witnesses, and it must necessarily bear their Yet, there is another fatal defect to the will on which the denial of this
signatures. An unsigned attestation clause cannot be considered as petition should also hinge. The requirement under Article 806 that
an act of the witnesses, since the omission of their signatures at the "every will must be acknowledged before a notary public by the testator
bottom thereof negatives their participation. and the witnesses" has also not been complied with. The importance of
The petitioner and appellee contends that signatures of the three this requirement is highlighted by the fact that it had been segregated
witnesses on the left-hand margin conform substantially to the law from the other requirements under Article 805 and entrusted into a
and may be deemed as their signatures to the attestation clause. separate provision, Article 806. The non-observance of Article 806 in
This is untenable, because said signatures are in compliance with this case is equally as critical as the other cited flaws in compliance with
Article 805, and should be treated as of equivalent import.
the legal mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the three In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
witnesses at the bottom thereof, be admitted as sufficient, it would wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic),
be easy to add such clause to a will on a subsequent occasion and 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation
in the absence of the testator and any or all of the witnesses.39 can those words be construed as an acknowledgment. An
The Court today reiterates the continued efficacy of Cagro. Article acknowledgment is the act of one who has executed a deed in going
805 particularly segregates the requirement that the instrumental before some competent officer or court and declaring it to be his act or
witnesses sign each page of the will, from the requisite that the will deed.41 It involves an extra step undertaken whereby the signor actually
be "attested and subscribed by [the instrumental witnesses]." The declares to the notary that the executor of a document has attested to the
respective intents behind these two classes of signature are distinct notary that the same is his/her own free act and deed.
from each other. The signatures on the left-hand corner of every It might be possible to construe the averment as a jurat, even though it
page signify, among others, that the witnesses are aware that the does not hew to the usual language thereof. A jurat is that part of an
page they are signing forms part of the will. On the other hand, the affidavit where the notary certifies that before him/her, the document
signatures to the attestation clause establish that the witnesses are was subscribed and sworn to by the executor.42 Ordinarily, the
referring to the statements contained in the attestation clause itself. language of the jurat should avow that the document was subscribed
Indeed, the attestation clause is separate and apart from the and sworn before the notary public, while in this case, the notary public
disposition of the will. An unsigned attestation clause results in an averred that he himself "signed and notarized" the document. Possibly
unattested will. Even if the instrumental witnesses signed the left- though, the word "ninotario" or "notarized" encompasses the signing of
hand margin of the page containing the unsigned attestation clause, and swearing in of the executors of the document, which in this case
such signatures cannot demonstrate these witnesses’ undertakings would involve the decedent and the instrumental witnesses.
in the clause, since the signatures that do appear on the page were
Yet even if we consider what was affixed by the notary public as a jurat,
directed towards a wholly different avowal. the will would nonetheless remain invalid, as the express requirement of
The Court may be more charitably disposed had the witnesses in Article 806 is that the will be "acknowledged", and not merely
this case signed the attestation clause itself, but not the left-hand subscribed and sworn to. The will does not present any textual proof,
margin of the page containing such clause. Without diminishing much less one under oath, that the decedent and the instrumental
the value of the instrumental witnesses’ signatures on each and witnesses executed or signed the will as their own free act or deed. The
every page, the fact must be noted that it is the attestation clause acknowledgment made in a will provides for another all-important legal
which contains the utterances reduced into writing of the safeguard against spurious wills or those made beyond the free consent
testamentary witnesses themselves. It is the witnesses, and not the of the testator. An acknowledgement is not an empty meaningless
testator, who are required under Article 805 to state the number of act.43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had
executed and subscribed to the will as their own free act or deed.
Such declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who participate
in the execution of spurious wills, or those executed without the
free consent of the testator. It also provides a further degree of
assurance that the testator is of certain mindset in making the
testamentary dispositions to those persons he/she had designated
in the will.
It may not have been said before, but we can assert the rule, self-
evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn
to before a notary public.
There are two other requirements under Article 805 which were
not fully satisfied by the will in question. We need not discuss
them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator
and the instrumental witnesses sign each and every page of the
will on the left margin, except the last; and that all the pages shall
be numbered correlatively in letters placed on the upper part of
each page. In this case, the decedent, unlike the witnesses, failed
to sign both pages of the will on the left margin, her only
signature appearing at the so-called "logical end"44 of the will on
its first page. Also, the will itself is not numbered correlatively in
letters on each page, but instead numbered with Arabic numerals.
There is a line of thought that has disabused the notion that these
two requirements be construed as mandatory.45Taken in isolation,
these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to
the adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question
suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
G.R. No. L-5826 April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA
CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
11
This is an appeal interposed by the oppositors from a decision of
the Court of First Instance of Samar, admitting to probate the will
allegedly executed by Vicente Cagro who died in Laoangan,
Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is
fatally defective, because its attestation clause is not signed by the
attesting witnesses. There is no question that the signatures of the
three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is 'a memorandum of the facts
attending the execution of the will' required by law to be made by
the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would
be easy to add such clause to a will on a subsequent occasion and
in the absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the
will in question denied. So ordered with costs against the petitioner
and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially
complied with the formalities of the law and, therefore, should be
admitted to probate . It appears that the will was signed by the
testator and was attested by three instrumental witnesses, not only
at the bottom, but also on the left-hand margin. The witnesses
testified not only that the will was signed by the testator in their
presence and in the presence of each other but also that when they
did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by
the oppositors to the validity of the will is the fact that the
signatures of the instrumental witnesses do not appear immediately
after the attestation clause.
This objection is too technical to be entertained. In the case of
Abangan vs. Abangan, (40 Phil., 476), this court said that when the
testamentary dispositions "are wholly written on only one sheet signed
at the bottom by the testator and three witnesses (as the instant
case),their signatures on the left margin of said sheet would be
completely purposeless." In such a case, the court said, the requirement
of the signatures on the left hand margin was not necessary because the
purpose of the law — which is to avoid the substitution of any of the
sheets of the will, thereby changing the testator's dispositions — has
already been accomplished. We may say the same thing in connection
with the will under consideration because while the three instrumental
witnesses did not sign immediately by the majority that it may have
been only added on a subsequent occasion and not at the uncontradicted
testimony of said witnesses to the effect that such attestation clause was
already written in the will when the same was signed.
The following observation made by this court in the Abangan case is
very fitting:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it i not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary useless and frustrative of the testator's
last will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in
the matter of interpretation of wills, the purpose of which, in case of
doubt, is to give such interpretation that would have the effect of
preventing intestacy (article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted
to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I cuncur in Mr. Justice Bautista's dissenting opinion and may add that
the majority decision erroneously sets down as a fact that the attestation
clause was no signed when the witnesses signatures appear on the left
margin and the real and only question is whether such signatures are
legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does
not provide that the attesting witness should sign the clause at the
bottom. In the absence of such provision, there is no reason why
signatures on the margin are not good. A letter is not any the less
the writter's simply because it was signed, not at the conventional
place but on the side or on top.
Feria, J., concurs.
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
ALDINA MALOTO CASIANO, CONSTANCIO MALOTO,
PURIFICACION MIRAFLOR, ROMAN CATHOLIC
CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In
fact, two other cases directly related to the present one and
involving the same parties had already been decided by us in the
past. In G.R. No. L-30479, 1 which was a petition for certiorari
and mandamus instituted by the petitioners herein, we dismissed
the petition ruling that the more appropriate remedy of the
petitioners is a separate proceeding for the probate of the will in
question. Pursuant to the said ruling, the petitioners commenced
in the then Court of First Instance of Iloilo, Special Proceeding
No. 2176, for the probate of the disputed will, which was opposed
by the private respondents presently, Panfilo and Felino both
surnamed Maloto. The trial court dismissed the petition on April
30, 1970. Complaining against the dismissal, again, the petitioners
came to this Court on a petition for review by certiorari. 2 Acting
on the said petition, we set aside the trial court's order and
directed it to proceed to hear the case on the merits. The trial
court, after hearing, found the will to have already been revoked
by the testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the Intermediate
Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision
proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account
would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her
niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private respondents Panfilo Maloto
and Felino Maloto. Believing that the deceased did not leave
behind a last will and testament, these four heirs commenced on
November 4, 1963 an intestate proceeding for the settlement of
their aunt's estate. The case was instituted in the then Court of
12
First Instance of Iloilo and was docketed as Special Proceeding
No. 1736. However, while the case was still in progress, or to be
exact on February 1, 1964, the parties — Aldina, Constancio,
Panfilo, and Felino — executed an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided for the
division of the estate into four equal parts among the parties. The
Malotos then presented the extrajudicial settlement agreement to
the trial court for approval which the court did on March 21, 1964.
That should have signalled the end of the controversy, but,
unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio
Palma, a former associate of Adriana's counsel, the late Atty.
Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940,
and purporting to be the last will and testament of Adriana. Atty.
Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet
drawer formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First Instance of
Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are
still named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of
Adriana than what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The will likewise
gives devises and legacies to other parties, among them being the
petitioners Asilo de Molo, the Roman Catholic Church of Molo,
and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the
other devisees and legatees named in the will, filed in Special
Proceeding No. 1736 a motion for reconsideration and annulment
of the proceedings therein and for the allowance of the will When
the trial court denied their motion, the petitioner came to us by way
of a petition for certiorari and mandamus assailing the orders of the
trial court . 3 As we stated earlier, we dismissed that petition and
advised that a separate proceeding for the probate of the alleged
will would be the appropriate vehicle to thresh out the matters
raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the
matter on whether or not the document or papers allegedly burned
by the househelp of Adriana, Guadalupe Maloto Vda. de Coral,
upon instructions of the testatrix, was indeed the will, contradicted
itself and found that the will had been revoked. The respondent
court stated that the presence of animus revocandi in the
destruction of the will had, nevertheless, been sufficiently proven.
The appellate court based its finding on the facts that the document
was not in the two safes in Adriana's residence, by the testatrix
going to the residence of Atty. Hervas to retrieve a copy of the will
left in the latter's possession, and, her seeking the services of Atty.
Palma in order to have a new will drawn up. For reasons shortly to be
explained, we do not view such facts, even considered collectively, as
sufficient bases for the conclusion that Adriana Maloto's will had been
effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the
due execution of the will. The heart of the case lies on the issue as to
whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found
in Article 830.
Art. 830. No will shall be revoked except in the following
cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself, or by
some other person in his presence, and by his express
direction. If burned, torn cancelled, or obliterated by some
other person, without the express direction of the testator, the
will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and
the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
(Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in
this case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the testator.
It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under theexpress
direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not
suffice. "Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to revoke
must be accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator or by
another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For
one, the document or papers burned by Adriana's maid, Guadalupe, was
not satisfactorily established to be a will at all, much less the will of
Adriana Maloto. For another, the burning was not proven to have been
done under the express direction of Adriana. And then, the burning was
not in her presence. Both witnesses, Guadalupe and Eladio, were one in
stating that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The respondent appellate court in assessing the evidence
presented by the private respondents as oppositors in the trial
court, concluded that the testimony of the two witnesses who
testified in favor of the will's revocation appear "inconclusive."
We share the same view. Nowhere in the records before us does it
appear that the two witnesses, Guadalupe Vda. de Corral and
Eladio Itchon, both illiterates, were unequivocably positive that
the document burned was indeed Adriana's will. Guadalupe, we
think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the
other hand, obtained his information that the burned document
was the will because Guadalupe told him so, thus, his testimony
on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of
public interest that a purported win is not denied legalization on
dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations ...."4
The private respondents in their bid for the dismissal of the
present action for probate instituted by the petitioners argue that
the same is already barred by res adjudicata. They claim that this
bar was brought about by the petitioners' failure to appeal timely
from the order dated November 16, 1968 of the trial court in the
intestate proceeding (Special Proceeding No. 1736) denying their
(petitioners') motion to reopen the case, and their prayer to annul
the previous proceedings therein and to allow the last will and
testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present
controversy. For a judgment to be a bar to a subsequent case, the
following requisites must concur: (1) the presence of a final
former judgment; (2) the former judgment was rendered by a
court having jurisdiction over the subject matter and the parties;
(3) the former judgment is a judgment on the merits; and (4) there
is, between the first and the second action, Identity of parties, of
subject matter, and of cause of action. 5 We do not find here the
presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered
insofar as the probate of Adriana Maloto's will is concerned. The
decision of the trial court in Special Proceeding No. 1736,
although final, involved only the intestate settlement of the estate
of Adriana. As such, that judgment could not in any manner be
construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a
judgment on the merits of the action for probate. This is
understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the
13
contested will . 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of proving
its due execution and validity, something which can not be
properly done in an intestate settlement of estate proceeding which
is predicated on the assumption that the decedent left no will.
Thus, there is likewise no Identity between the cause of action in
intestate proceeding and that in an action for probate. Be that as it
may, it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's will.
Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.
One last note. The private respondents point out that revocation
could be inferred from the fact that "(a) major and substantial bulk
of the properties mentioned in the will had been disposed of: while
an insignificant portion of the properties remained at the time of
death (of the testatrix); and, furthermore, more valuable properties
have been acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional matters
raised by the private respondents are extraneous to this special
proceeding, they could only be appropriately taken up after the will probate is the original of the will. It is alleged therein that the original
has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and
SETTING ASIDE the Decision dated June 7, 1985 and the
Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
G.R. No. 47174 June 28, 1940
ELIODORA LIPANA, represented by her guardian ad litem,
ISABELO LIPANA, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF CAVITE,
JOAQUIN LIPANA and NATIVIDAD LIPANA, respondents.
E. A. Beltran for petitioner.
Viniegra and Jose for respondent Natividad Lipana.
H. B. Arandia for respondent Joaquin Lipana.
MORAN, J.:
A petition for certiorari.
One Eliodora Lipana filed in the respondent court an application
for the probate of a will supposedly executed by the deceased,
Manuela Lipana, a carbon copy of which was attached to the
application. Natividad Lipana filed an opposition, and her
"oposicion supletoria" she claimed that evidence was unnecessary
upon the facts alleged in the application, the copy of the will attached
thereto showing, in itself, that the will had not been executed in
accordance with law. The respondent court, after inspecting the copy of
the will, dismissed the application on the ground that such copy could
not be admitted to probate, it not having been signed by the testatrix and
the attesting witnesses at the end thereof and on the left margin of each
page. It is against this order of dismissal that the petition
for certiorari has been filed with this court.
There can be no doubt that the respondent court acted in excess of its
jurisdiction in rendering a judgment upon the merits of the case without
a previous hearing. The pronouncement made by the respondent court
that the will had not been executed in accordance with law, is founded
undoubtedly on the erroneous assumption that the probate of the carbon
copy of the will was being applied for. Such copy was attached to the
application merely to corroborate the allegation as to the existence of its
original and not to establish a full compliance with the requirements of
the law as to the execution of the will. Such requirements are alleged in
the application to have been complied with and may proved at the
hearing.
It is apparent from the application that what is sought to be admitted to
was in the possession of a third person or that it was either lost or
destroyed by some person other than the testatrix. Under section 623 of
Act No. 190. if a will is shown to have been torn by some other person
without the express direction of the testator. it may be admitted to
probate, if its contents, due execution and its unauthorized destruction
are established by satisfactory evidence. The applicant, therefore, was
entitled to hearing to prove the due execution of the original will and its
loss or destruction, and the respondent court had no statutory authority
to dismiss the application without such hearing.
It is alleged that, according to sections 217 and 514 of Act No. 190, a
writ of certiorari may be granted only where "there is no plain, speedy
and adequate remedy by bill of exceptions, or otherwise." This rule,
however, recognizes an exception. There the order or judgment is a
nullity by virtue of its recitals, as, in the instant case, wherein the order
complained of recites that there had been no hearing of the facts alleged
in the application, it may be attacked in any way and at any time, even
when no appeal has been taken. (Banco Español-Filipino vs. Palanca, 37
Phil., 921, 949.) This is a exactly the same as a judgment in a criminal
case wherein it is stated that there is no need of trial and the accused is
convicted merely upon the allegations of the information. Such
judgment may be "held to be 'a dead limb on the judicial tree, which
should be lopped of' or wholly disregarded as the circumstances
require." (Anuran vs. Aquino, 38 Phil., 29, 36.) Indeed, we have once
held that a judgment with absolutely nothing to support it, is a nullity,
and may be voided at least by a proceeding in certiorari. (Yangco vs.
Court of First Instance of Manila, 29 Phil., 183, 191.)
A motion for contempt is filed by the petitioner against attorney
Fortunato Jose due to certain statements made by the latter in his
written argument and which are derogatory to the good name of
petitioner's attorney. We reiterate here what we have observed on
several occasions, that attorneys should not abuse the privilege
accorded them in their defense of cases in courts of justice, by
indulging in offensive personalities which can in no way aid in the
proper elucidation of the issues. We disapprove of the conduct of
attorney Fortunato Jose and he is hereby warned that a similar
misbehavior on his part in the future will be appropriate dealt
with.
The order of the respondent court of November 29, 1939, issued
in its civil case No. 3626, is hereby set aside, with costs against
respondents.
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y
LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-
appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-
appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of
Rizal admitting to probate the last will and testament of the
deceased Mariano Molo y Legaspi executed on August 17, 1918.
The oppositors-appellants brought the case on appeal to this Court
for the reason that the value of the properties involved exceeds
P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any
forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana Juan
Vda. de Molo, and by his nieces and nephew, the oppositors-
appellants, Luz Gliceria and Cornelio, all surnamed Molo, who
were the legitimate children of Candido Molo y Legaspi, deceased
brother of the testator. Mariano Molo y Legaspi left two wills, one
executed on August 17, 1918, (Exhibit A) and another executed
on June 20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court
of First Instance of Rizal a petition, which was docketed as special
proceeding No. 8022 seeking the probate of the will executed by
the deceased on June 20, 1939. There being no opposition, the
will was probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to probate was
14
set aside and the case was reopened. After hearing, at which both voluntarily and deliberately frustrated the probate of the will dated June
parties presented their evidence, the court rendered decision 20, 1939, in order to enable her to obtain the probate of the will
denying the probate of said will on the ground that the petitioner executed by the deceased on August 17, 1918, pointing out certain facts
failed to prove that the same was executed in accordance with law. and circumstances with their opinion indicate that petitioner connived
In view of the disallowance of the will executed on June 20, 1939, with the witness Canuto Perez in an effort to defeat and frustrate the
the widow on February 24, 1944, filed another petition for the probate of the 1939 will because of her knowledge that said will
probate of the will executed by the deceased on August 17, 1918, intrinsically defective in that "the one and only testamentory disposition
which was docketed as special proceeding No. 56, in the same thereof was a "disposicion captatoria". These circumstances, counsel for
court. Again, the same oppositors filed an opposition to the the appellants contend, constitute a series of steps deliberately taken by
petition based on three grounds: (1) that petitioner is now estopped petitioner with a view to insuring the realization of her plan of securing
from seeking the probate of the will of 1918; (2) that said will has the probate of the 1918 will which she believed would better safeguard
not been executed in the manner required by law and (3) that the her right to inherit from the decease.
will has been subsequently revoked. But before the second petition These imputations of fraud and bad faith allegedly committed in
could be heard, the battle for liberation came and the records of the connection with special proceedings No. 8022, now closed and
case were destroyed. Consequently, a petition for reconstitution terminated, are vigorously met by counsel for petitioner who contends
was filed, but the same was found to be impossible because neither that to raise them in these proceedings which are entirely new and
petitioner nor oppositors could produce the copies required for its distinct and completely independent from the other is improper and
reconstitution. As a result, petitioner filed a new petition on unfair as they find no support whatsoever in any evidence submitted by
September 14, 1946, similar to the one destroyed, to which the the parties in this case. They are merely based on the presumptions and
oppositors filed an opposition based on the same grounds as those conjectures not supported by any proof. For this reason, counsel,
contained in their former opposition. Then, the case was set for contends, the lower court was justified in disregarding them and in
trial, and on May 28, 1948, the court issued an order admitting the passing them sub silentio in its decision.
will to probate already stated in the early part of this decision. A careful examination of the evidence available in this case seems to
From this order the oppositors appealed assigning six errors, to justify this contention. There is indeed no evidence which may justify
wit. the insinuation that petitioner had deliberately intended to frustrate the
I. The probate court erred in not holding that the present probate of the 1939 will of the deceased to enable her to seek the
petitioner voluntarily and deliberately frustrated the probate of another will other than a mere conjecture drawn from the
probate of the will dated June 20, 1939, in special apparently unexpected testimony of Canuto Perez that he went out of
proceeding No. 8022, in order to enable her to obtain the the room to answer an urgent call of nature when Artemio Reyes was
probate of another alleged will of Molo dated 191. signing the will and the failure of petitioner later to impeach the
II. The court a quo erred in not holding that the petitioner character of said witness in spite of the opportunity given her by the
is now estopped from seeking the probate of Molo's court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she
alleged will of 1918.
informed the court that she was unable to impeach the character of her
III. The lower court erred in not holding that petitioner witness Canuto Perez because of her inability to find witnesses who
herein has come to court with "unclean hands" and as may impeach him, and this explanation stands uncontradicted. Whether
such is not entitled to relief. this explanation is satisfactory or not, it is not now, for us to determine.
IV. The probate court erred in not holding that Molo's It is an incident that comes within the province of the former case. The
alleged will of August 17, 1918 was not executed in the failure of petitioner to present the testimony of Artemio Reyes at the
manner required by law. hearing has also been explained, and it appears that petitioner has filed
V. The probate court erred in not holding that the alleged because his whereabouts could not be found. Whether this is true or not
will of 1918 was deliberately revoked by Molo himself. is also for this Court to determine. It is likewise within the province and
function of the court in the former case. And the unfairness of this
VI. The lower court erred in not holding that Molo's will imputation becomes more glaring when we stock of the developments
of 1918 was subsequently revoked by the decedent's will that had taken place in these proceedings which show in bold relief the
of 1939. true nature of the conduct, behavior and character of the petitioner so
In their first assignment of error, counsel for oppositors contend bitterly assailed and held in disrepute by the oppositors.
that the probate court erred in not holding that the petitioner
It should be recalled that the first petition for the probate of the
will executed on June 20, 1939, was filed on February 7, 1941, by
the petitioner. There being no opposition, the will was probated.
Subsequently, however, upon petition of the herein oppositors, the
order of the court admitting said will to probate was set aside,
over the vigorous opposition of the herein petitioner, and the case
was reopened. The reopening was ordered because of the strong
opposition of the oppositors who contended that he will had not
been executed as required by law. After the evidence of both
parties had been presented, the oppositors filed an extensive
memorandum wherein they reiterated their view that the will
should be denied probate. And on the strenght of this opposition,
the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective
and would make the testamentary disposition in her favor invalid
and ineffective, because it is a "disposicion captatoria", which
knowledge she may easily acquire through consultation with a
lawyer, there was no need her to go through the order of filing the
petition for the probate of the will. She could accomplish her
desire by merely suppressing the will or tearing or destroying it,
and then take steps leading to the probate of the will executed in
1918. But for her conscience was clear and bade her to take the
only proper step possible under the circumstances, which is to
institute the necessary proceedings for the probate of the 1939
will. This she did and the will was admitted to probate. But then
the unexpected happened. Over her vigorous opposition, the
herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it her
fault that the case was reopened? Is it her fault that the order
admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants not
filed their opposition to the probate of the will and had they
limited their objection to the intrinsic validity of said will, their
plan to defeat the will and secure the intestacy of the deceased
would have perhaps been accomplished. But they failed in their
strategy. If said will was denied probate it is due to their own
effort. It is now unfair to impute bad faith petitioner simply
because she exerted every effort to protect her own interest and
prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the
court did not commit the second and third errors imputed to it by
the counsel for appellants. Indeed, petitioner cannot be considered
guilty or estoppel which would prevent her from seeking the
probate of the 1918 will simply because of her effort to obtain the
allowance of the 1939 will has failed considering that in both the
1918 and 1939 wills she was in by her husband as his universal
heir. Nor can she be charged with bad faith far having done so
15
because of her desire to prevent the intestacy of her husband. She
cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause
contained in 1939 will of the deceased which was denied probate.
They contend that, notwithstanding the disallowance of said will,
the revocatory clause is valid and still has the effect of nullifying
the prior of 1918.
Counsel for petitioner meets this argument by invoking the
doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838).
He contends that the facts involved in that case are on all fours
with the facts of this case. Hence, the doctrine is that case is here
controlling.
There is merit in this contention. We have carefully read the facts
involved in the Samson case we are indeed impressed by their
striking similarity with the facts of this case. We do not need to
recite here what those facts are; it is enough to point out that they
contain many points and circumstances in common. No reason,
therefore, is seen by the doctrine laid down in that case (which we
quote hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a
previous will, having been disallowed, for the reason that
it was not executed in conformity with the provisions of
section 618 of the Code of Civil Procedure as to the
making of wills, cannot produce the effect of annulling
the previous will, inasmuch as said revocatory clause is
void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark
that, while they do not disagree with the soundness of the ruling
laid down in the Samson case, there is reason to abandon said
ruling because it is archaic or antiquated and runs counter to the
modern trend prevailing in American jurisprudence. They maintain
that said ruling is no longer controlling but merely represents the
point of view of the minority and should, therefore, be abandoned,
more so if we consider the fact that section 623 of our Code of
Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of
the majority view in the United States. A long line of authorities is
cited in support of this contention. And these authorities hold the
view, that "an express revocation is immediately effective upon the
execution of the subsequent will, and does not require that it first
undergo the formality of a probate proceeding". (p. 63, appellants'
brief .
While they are many cases which uphold the view entertained by
counsel for oppositors, and that view appears to be in controlling
the states where the decisions had been promulgated, however, we
are reluctant to fall in line with the assertion that is now the
prevailing view in the United States. In the search we have made
of American authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar provisions
contained in the statutes adopted by each State in the subject of
revocation of wills. But the impression we gathered from a review and
the study of the pertinent authorities is that the doctrine laid down in the
Samson case is still a good law. On page 328 of the American
Jurisprudence Vol. 57, which is a revision Published in 1948, we found
the following passages which in our opinion truly reflect the present
trend of American jurisprudence on this matter affecting the revocation
of wills:
SEC. 471. Observance of Formalities in Execution of
Instrument. — Ordinarily, statutes which permit the
revocation of a will by another writing provide that to be
effective as a revocation, the writing must be executed with
the same formalities which are required to be observed in the
execution of a will. Accordingly, where, under the statutes,
attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke
a prior will. It has been held that a writing fails as a revoking
instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed
on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator
cannot reserve to himself the power to modify a will by a
written instrument subsequently prepared but not executed in
the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will
or Codicil. — A will which is invalid because of the
incapacity of the testator, or of undue influence can have no
effect whatever as a revoking will. Moreover, a will is not
revoked by the unexecuted draft of a later one. Nor is a will
revoked by a defectively executed will or codicil, even though
the latter contains a clause expressly revoking the former will,
in a jurisdiction where it is provided by a controlling statute
that no writing other than a testamentary instrument is
sufficient to revoke a will, for the simple reason that there is
no revoking will. Similarly where the statute provides that a
will may be revoked by a subsequent will or other writing
executed with the same formalities as are required in the
execution of wills, a defectively executed will does not revoke
a prior will, since it cannot be said that there is a writing
which complies with the statute. Moreover, a will or codicil
which, on account of the manner in which it is executed, is
sufficient to pass only personally does not affect dispositions
of real estate made by a former will, even though it may
expressly purport to do so. The intent of the testator to revoke
is immaterial, if he has not complied with the statute. (57 Am.
Jur., 328, 329.)
We find the same opinion in the American Law Reports,
Annotated, edited in 1939. On page 1400, Volume 123, there
appear many authorities on the "application of rules where second
will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is
invalid on account of not being executed in accordance
with the provisions of the statute, or where the testator
who has not sufficient mental capacity to make a will or
the will is procured through undue influence, or the
such, in other words, where the second will is really no
will, it does not revoke the first will or affect it in any
manner. Mort vs. Baker University (193-5) 229 Mo.
App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on
which the ruling in the Samson case is predicated. They reflect the
opinion that this ruling is sound and good and for this reason, we
see no justification for abondoning it as now suggested by counsel
for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil
Procedure) provides that a will may be some will, codicil, or other
writing executed as proved in case of wills" but it cannot be said
that the 1939 will should be regarded, not as a will within the
meaning of said word, but as "other writing executed as provided
in the case of wills", simply because it was denied probate. And
even if it be regarded as any other writing within the meaning of
said clause, there is authority for holding that unless said writing
is admitted to probate, it cannot have the effect of revocation. (See
57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said
revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that it was deliberately revoked by the
testator himself. The oppositors contend that the testator, after
executing the 1939 will, and with full knowledge of the
recovatory clause contained said will, himself deliberately
destroyed the original of the 1918 will, and for that reason the will
submitted by petitioner for probate in these proceedings is only a
duplicate of said original.
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he
executed in 1939. The only evidence we have is that when the
first will was executed in 1918, Juan Salcedo, who prepared it,
gave the original and copies to the testator himself and apparently
they remained in his possession until he executed his second will
in 1939. And when the 1939 will was denied probate on
November 29, 1943, and petitioner was asked by her attorney to
look for another will, she found the duplicate copy (Exhibit A)
16
among the papers or files of the testator. She did not find the revocation fails and the original will remains in full force.
original. (Gardner, pp. 232, 233.)
If it can be inferred that the testator deliberately destroyed the 1918 This is the doctrine of dependent relative revocation. The
will because of his knowledge of the revocatory clause of the 1939 failure of a new testamentary disposition upon whose validity
will, and it is true that he gave a duplicate copy thereof to his wife, the revocation depends, is equivalent to the non-fulfillment of
the herein petitioner, the most logical step for the testator to take is a suspensive conditions, and hence prevents the revocation of
to recall said duplicate copy in order that it may likewise be the original will. But a mere intent to make at some time a will
destroyed. But this was not done as shown by the fact that said in the place of that destroyed will not render the destruction
duplicate copy remained in the possession of petitioner. It is conditional. It must appear that the revocation is dependent
possible that because of the long lapse of twenty-one (21) years upon the valid execution of a new will. (1 Alexander, p. 751;
since the first will was executed, the original of the will had been Gardner, p. 253.)
misplaced or lost, and forgetting that there was a copy, the testator We hold therefore, that even in the supposition that the destruction of
deemed it wise to execute another will containing exactly the same the original will by the testator could be presumed from the failure of
testamentary dispositions. Whatever may be the conclusion we the petitioner to produce it in court, such destruction cannot have the
may draw from this chain of circumstances, the stubborn fact is effect of defeating the prior will of 1918 because of the fact that it is
that there is no direct evidence of voluntary or deliberate founded on the mistaken belief that the will of 1939 has been validly
destruction of the first will by the testator. This matter cannot be executed and would be given due effect. The theory on which this
inference or conjectur. principle is predicated is that the testator did not intend to die intestate.
Granting for the sake of argument that the earlier will was And this intention is clearly manifest when he executed two wills on
voluntarily destroyed by the testator after the execution of the two different occasion and instituted his wife as his universal heir. There
second will, which revoked the first, could there be any doubt, can therefore be no mistake as to his intention of dying testate.
under this theory, that said earlier will was destroyed by the The remaining question to be determined refers to the sufficiency of the
testator in the honest belief that it was no longer necessary because evidence to prove the due execution of the will.
he had expressly revoked it in his will of 1939? In other words, can
we not say that the destruction of the earlier will was but the The will in question was attested, as required by law, by three witnesses,
Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two
necessary consequence of the testator's belief that the revocatory
clause contained in the subsequent will was valid and the latter witnesses died before the commencement of the present proceedings. So
the only instrumental witness available was Angel Cuenca and under
would be given effect? If such is the case, then it is our opinion
that the earlier will can still be admitted to probate under the our law and precedents, his testimony is sufficient to prove the due
principle of "dependent relative revocation". execution of the will. However, petitioner presented not only the
testimony of Cuenca but placed on the witness stand Juan Salcedo, the
This doctrine is known as that of dependent relative notary public who prepared and notarized the will upon the express
revocation, and is usually applied where the testator desire and instruction of the testator, The testimony of these witnesses
cancels or destroys a will or executes an instrument shows that the will had been executed in the manner required by law.
intended to revoke a will with a present intention to make We have read their testimony and we were impressed by their readiness
a new testamentary disposition as a substitute for the old, and sincerity. We are convinced that they told the truth.
and the new disposition is not made or, if made, fails of
effect for same reason. The doctrine is n limited to the Wherefore, the order appealed from is hereby affirmed, with costs
against the appellants.1âwphïl.nêt
existence of some other document, however, and has
been applied where a will was destroyed as a G.R. No. 144915 February 23, 2004
consequence of a mistake of law. . . . (68 C.J.P. 799).
CAROLINA CAMAYA, FERDINAND CAMAYA, EDGARDO
The rule is established that where the act of destruction is CAMAYA and ANSELMO MANGULABNAN,petitioners
connected with the making of another will so as fairly to vs.
raise the inference that the testator meant the revocation BERNARDO PATULANDONG, respondent.
of the old to depend upon the efficacy of a new DECISION
disposition intended to be substituted, the revocation will
be conditional and dependent upon the efficacy of the CARPIO-MORALES, J.:
new disposition; and if, for any reason, the new will Before this Court is a petition for review on certiorari under Rule 45 of
intended to be made as a substitute is inoperative, the the 1997 Revised Rules of Court seeking the reversal of the Court of
Appeals Decision dated June 19, 2000 in CA-G.R. CV No.
53757, "In re: Petition for the Probate of the Codicil (Will) of
Rufina Reyes; Bernardo Patulandong v. Anselmo Mangulabnan v.
Carolina G. Camaya, Ferdinand Camaya and Edgardo Camaya."
On November 17, 1972, Rufina Reyes (testatrix) executed a
notarized will wherein she devised, among others, Lot No. 288-A
to her grandson Anselmo Mangulabnan (Mangulabnan). The
pertinent portion of her will reads:
IKALIMA. - Aking inihahayag at ginagawa na tagapagmana, sa
aking kusang loob, ang pinalaki kong APO na si ANSELMO P.
MANGULABNAN, may sapat na gulang, kasal kay Flora
Umagap, at naninirahan sa San Lorenzo, Gapan, Nueva Ecija, at
anak ng aking anak na si SIMPLICIA, at sa aking APO na si
ANSELMO ay aking ipinagkakaloob at ipinamamana, sa
aking pagkamatay, ang mga sumusunod kong pagaari:
LOT TITLE KINALALAGYAN
NO. NO. NABANGGIT SA
288-A NT-47089 Sta. Cruz (1) p. 2
3348-A 100629 Poblacion (2) p. 2
3349-B 100630 Poblacion (3) p. 2
xxx1 (Underscoring in the original; emphasis supplied)
The testatrix’s son Bernardo Patulandong (Patulandong),
respondent herein, was in the will appointed as the executor.
During her lifetime, the testatrix herself filed a petition for the
probate of her will before the then Court of First Instance (CFI) of
Nueva Ecija where it was docketed as Sp. Pro. No. 128.
By Order2 of January 11, 1973, the CFI admitted the will to
probate.
On June 27, 1973, the testatrix executed a codicil modifying
above-quoted paragraph five of her will in this wise:
UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz,
Gapan, Nueva Ecija, magsukat 36,384 metro cuadrados, at
nagtataglay ng TCT No. NT-47089, na aking ipinamana sa
aking apong si ANSELMO P. MANGULABNAN, sangayon sa
Pangkat IKA-LIMA, pp. 5-6, ng aking HULING HABILIN
(Testamento), ay ipinasiya kong ipagkaloob at ipamana sa aking
mga anak na sina BERNARDO, SIMPLICIA, GUILLERMA at
JUAN nagaapellidong PATULANDONG, at sa aking apong si
ANSELMO P. MANGULABNAN, sa magkakaparehong bahagi
na tig-ikalimang bahagi bawat isa sa kanila.
17
IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga
tadhana ng aking HULING HABILIN ay aking pinagtitibay na
muli.
x x x3 (Underscoring in the original; emphasis supplied) On May
14, 1988, the testatrix died.
Mangulabnan later sought the delivery to him by executor
Patulandong of the title to Lot 288-A. Patulandong refused to heed
the request, however, in view of the codicil which modified the
testator’s will.
Mangulabnan thus filed an "action for partition" against
Patulandong with the Regional Trial Court of Gapan, Nueva Ecija,
docketed as Civil Case No. 552 (the partition case).
On June 8, 1989, the trial court rendered a decision in the partition
case,4 the dispositive portion of which reads:
WHEREFORE, the court orders the partitioning of the properties
and the defendant to deliver the copy of the Transfer Certificate of
Title No. NT-47089.
However, in view of the case cited by the plaintiff himself, the
court holds that the partition is without prejudice
[to]... the probate of the codicil in accordance with the Rules of
Court, [P]alacios vs. Catimbang Palacios cited by the plaintiff:
"After a will has been probated during the lifetime of the testator, it
does not necessarily mean that he cannot alter or revoke the same
before his death. Should he make a new will, it would also be
allowable of his petition and if he should die before he had a
chance to present such petition, the ordinary probate proceedings
after the testator’s death would be in order."
The Court also orders that the right of the tenants of the
agricultural land in question should be protected meaning to say
that the tenants should not be ejected. (Emphasis and underscoring
supplied)
On July 17, 1989 Patulandong filed before the Regional Trial
Court of Nueva Ecija a petition5 for probate of the codicil of the
testatrix, docketed as Sp. Proc. No. 218.
On December 28, 1989, the probate court issued an Order6 setting
the petition for hearing and ordering the publication of said order.
On February 7, 1991, by virtue of the decision in the partition case,
Mangulabnan caused the cancellation of the title of the testatrix
over Lot No. 288-A and TCT No. NT-2157507 was issued in his
name.
Mangulabnan later sold to herein petitioners Camayas Lot No.
288-A by a Deed of Sale dated February 19, 1991.8TCT No. NT-
215750 was thus cancelled and TCT No. NT-2164469 was issued
in the name of the Camayas.
On January 16, 1996, the trial rendered a decision10 in Sp. Proc. No.
218 admitting the codicil to probate and disposing as follows:
WHEREFORE, in view of all the foregoing, judgment is hereby
rendered in the following manner:
1. Declaring Transfer Certificate of Title No. NT-215750
issued by the Register of Deeds of Nueva Ecija in the name of
Anselmo Mangulabnan dated February 7, 1991 and the Deed
of Absolute Sale executed by him in favor of the intervenors
Carolina, Ferdinand and Edgardo, all surnamed Camaya on
February 19, 1991 and Transfer Certificate of Title No. NT-
216446 under date March 18, 1991 issued in the names of the
above-named intervenors as NULL and VOID and of no force
and effect; and,
2. Ordering the Register of Deeds of Nueva Ecija to cancel
Transfer of Certificate of Title Nos. NT-215750 and NT-
216446 and reissue the corresponding Certificate of Titles to
Bernardo R. Patulandong, Filipino, married to Gorgonia
Mariano residing at San Vicente, Gapan, Nueva Ecija, Juan R.
Patulandong, Filipino, widower and residing at San Lorenzo,
Gapan, Nueva Ecija; Guillerma R. Patulandong Linsangan of
legal age, Filipino, widow and residing at San Vicente, Gapan,
Nueva Ecija, Simplicia R. Patulandong Mangulabnan, of legal
age, widow, and residing at San Lorenzo, Gapan, Nueva Ecija
and her grandson, Anselmo Mangulabnan with full personal
circumstances stated herein to the extent of one fifth (1/5)
each pursuant to the approved codicil (will) of Rufina Reyes
dated June 27, 1973.11
The Camayas who had been allowed to intervene in Sp. Proc. No. 218,
and Mangulabnan, filed a Motion for Reconsideration of the above-said
decision but it was denied by Order12 of February 28,1996.
On appeal to the Court of Appeals, the Camayas and Mangulabnan
(hereinafter referred to as petitioners) raised the following errors:
1. THERE WERE SERIOUS SUBSTANTIAL
DEPARTURES FROM THE FORMALITIES REQUIRED
BY THE RULES, THE LAW, AND THE AUTHORITY OF
THE REGIONAL TRIAL COURT SETTING AS A
PROBATE COURT.
2. THE OPPOSITOR DID NOT ONLY ACQUIRE LOT NO.
288-A BY WILL BUT HE ALSO ACQUIRED THE SAME
BY PARTITION IN A CIVIL CASE WHERE THE
DECISION HAS ALREADY REACHED ITS FINALITY
AND THEREFORE CAN NO LONGER BE NEGATED BY
A QUESTIONABLE CODICIL.
3. THAT THE SUBJECT LOT 288-A IS NO LONGER
WITHIN THE REACHED (sic) OF THE PETITIONER
CONSIDERING THAT THE OPPOSITOR VENDOR HAD
 A CLEAN TITLE AND THAT THE INTERVENORS-
VENDEED HAD ACQUIRED THE SAME BY WAY
OF SALE AS INNOCENT PURCHASER IN GOOD
FAITH AND FOR VALUE.13
By Decision14 of June 19, 2000, the Court of Appeals affirmed
that of the trial court.
Hence, the present petition for Review on Certiorari proffering
the following issues:
1. Whether the probate court exceeded its jurisdiction
when it declared null and void and ordered the
cancellation of the TCTs of petitioners and the deed of
sale; and
2. Whether the final judgment in Civil Case No. 552
bars the allowance of the codicil.
As to the first issue, petitioners contend that the under the law, the
probate court has no power, authority, and jurisdiction to declare
null and void the sale and titles of petitioners;15 and that the
probate court can only resolve the following issues:
1. Whether or not the instrument which is offered for
probate is the last will and testament of the decedent; in
other words, the question is one of identity[;]
2. Whether or not the will has been executed in
accordance with the formalities prescribed by law; in
other words, the question is one of due execution[; and]
3. Whether the testator had testamentary capacity at the
time of the execution of the will; in other words, the
question is one of capacity.16
In Cuizon v. Ramolete, 17 this Court elucidated on the limited
jurisdiction of a probate court, to wit:
It is well-settled rule that a probate court or one in charge of
proceedings whether testate or intestate cannot adjudicate or
determine title to properties claimed to be a part of the estate and
which are equally claimed to belong to outside parties. All that
said court could do as regards said properties is to determine
whether they should or should not be included in the inventory or
list of properties to be administered by the administrator. If there
is no dispute, well and good; but if there is, then the parties, the
administrator, and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims
of title because the probate court cannot do so.
xxx
Having been apprised of the fact that the property in question was
in the possession of third parties and more important, covered by a
transfer certificate of title issued in the name of such third parties,
the respondent court should have denied the motion of the
18
respondent administrator and excluded the property in question issued on March 18, 1991 in favor of the petitioners Camayas, and 2)
from the inventory of the property of the estate. It had no authority the order for the Register of Deeds of Nueva Ecija to cancel Transfer of
to deprive such third persons of their possession and ownership of Certificate of Title Nos. NT-215750 and NT-216446 and reissue the
the property. x x x (Emphasis and underscoring supplied) corresponding Certificate of Titles to Bernardo R. Patulandong, Juan R.
Following Cuizon, the probate court exceeded its jurisdiction when Patulandong, Guillerma R. Patulandong Linsangan, Simplicia R.
it further declared the deed of sale and the titles of petitioners null Patulandong Mangulabnan, and Anselmo Mangulabnan to the extent of
and void, it having had the effect of depriving them possession and one-fifth (1/5) each pursuant to the approved codicil are SET ASIDE,
without prejudice to respondent and his co-heirs’ ventilation of their
ownership of the property.
right in an appropriate action.
Moreover, following Section 48 of the Property Registry Decree
which reads: SO ORDERED.
SECTION 48. Certificate not subject to collateral attack. - G.R. No. L-62952 October 9, 1985
A certificate of title shall not be subject to collateral attack. It SOFIA J. NEPOMUCENO, petitioner,
cannot be altered, modified, or cancelled except in a direct vs.
proceeding in accordance with law, THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
petitioners’ titles cannot, under probate proceedings, be declared OSCAR JUGO ANG, CARMELITA JUGO, respondents.
null and void.
As to the second issue, petitioners argue that by allowing the GUTIERREZ, JR., J.:
codicil to probate, it in effect amended the final judgment in the This is a petition for certiorari to set aside that portion of the decision of
partition case which is not allowed by law;18 and that petitioner the respondent Court of Appeals (now intermediate Appellate Court)
Camayas are innocent purchasers for value and enjoy the legal dated June 3, 1982, as amended by the resolution dated August 10,
presumption that the transfer was lawful.19 1982, declaring as null and void the devise in favor of the petitioner and
Petitioners’ first argument does not persuade. the resolution dated December 28, 1982 denying petitioner's motion for
Though the judgment in the partition case had become final and reconsideration.
executory as it was not appealed, it specifically provided in its Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will
dispositive portion that the decision was "without prejudice and Testament duly signed by him at the end of the Will on page three
[to] ... the probate of the codicil." The rights of the prevailing and on the left margin of pages 1, 2 and 4 thereof in the presence of
parties in said case were thus subject to the outcome of the probate Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn,
of the codicil. affixed their signatures below the attestation clause and on the left
The probate court being bereft of authority to rule upon the validity margin of pages 1, 2 and 4 of the Will in the presence of the testator and
of petitioners’ titles, there is no longer any necessity to dwell on of each other and the Notary Public. The Will was acknowledged before
the merits of petitioners Camayas’ claim that they are innocent the Notary Public Romeo Escareal by the testator and his three attesting
purchasers for value and enjoy the legal presumption that the witnesses.
transfer was lawful. In the said Will, the testator named and appointed herein petitioner Sofia
J. Nepomuceno as his sole and only executor of his estate. It is clearly
WHEREFORE, the petition is GRANTED IN PART.
stated in the Will that the testator was legally married to a certain Rufina
The Decision of the Court of Appeals dated June 19, 2000 in CA- Gomez by whom he had two legitimate children, Oscar and Carmelita,
G.R. CV No. 53757 affirming the January 16, 1996 Decision of but since 1952, he had been estranged from his lawfully wedded wife
Regional Trial Court, Branch 35, of Gapan, Nueva Ecija, is hereby and had been living with petitioner as husband and wife. In fact, on
AFFIRMED with MODIFICATION. December 5, 1952, the testator Martin Jugo and the petitioner herein,
The decision allowing the codicil is AFFIRMED, but the 1) Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice
declaration as null and void of Transfer Certificate of Title No. of the Peace. The testator devised to his forced heirs, namely, his legal
NT-215750 issued on February 7, 1991 by the Register of Deeds wife Rufina Gomez and his children Oscar and Carmelita his entire
of Nueva Ecija in the name of Anselmo Mangulabnan, the estate and the free portion thereof to herein petitioner. The Will reads in
February 19, 1991 Deed of Absolute Sale executed by him in favor part:
of the intervenors - herein petitioners Carolina, Ferdinand and Art. III. That I have the following legal heirs, namely: my
Edgardo Camaya, and Transfer Certificate of Title No. NT-216446 aforementioned legal wife, Rufina Gomez, and our son, Oscar,
 and daughter Carmelita, both surnamed Jugo, whom I
declare and admit to be legally and properly entitled to
inherit from me; that while I have been estranged from
my above-named wife for so many years, I cannot deny
that I was legally married to her or that we have been
separated up to the present for reasons and justifications
known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and
wife with one Sofia J. Nepomuceno, whom I declare and
avow to be entitled to my love and affection, for all the
things which she has done for me, now and in the past;
that while Sofia J. Nepomuceno has with my full
knowledge and consent, did comport and represent
myself as her own husband, in truth and in fact, as well
as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my
aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate
of the last Will and Testament of the deceased Martin Jugo in the
Court of First Instance of Rizal, Branch XXXIV, Caloocan City
and asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez
and her children filed an opposition alleging inter alia that the
execution of the Will was procured by undue and improper
influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and that
petitioner having admitted her living in concubinage with the
testator, she is wanting in integrity and thus, letters testamentary
should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will
on the ground that as the testator admitted in his Will to
cohabiting with the petitioner from December 1952 until his death
on July 16, 1974, the Will's admission to probate will be an Idle
exercise because on the face of the Will, the invalidity of its
intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the
Court of First Instance of Rizal denying the probate of the will.
The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to
Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside,
the will in question declared valid except the devise in
favor of the appellant which is declared null and void.
The properties so devised are instead passed on in
19
intestacy to the appellant in equal shares, without
pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed
a "Motion for Correction of Clerical Error" praying that the word
"appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties
so devised are instead passed on intestacy to the appellees in equal
shares, without pronouncement as to costs." The motion was
granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for
reconsideration. This was denied by the respondent court in a
resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the
respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin Jugo
validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary
provision in her favor cannot be passed upon and decided in the
probate proceedings but in some other proceedings because the
only purpose of the probate of a Will is to establish conclusively as
against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to
execute the same. The petitioner further contends that even if the
provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could
only be made by the proper court in a separate action brought by
the legal wife for the specific purpose of obtaining a declaration of
the nullity of the testamentary provision in the Will in favor of the
person with whom the testator was allegedly guilty of adultery or
concubinage.
The respondents on the other hand contend that the fact that the
last Will and Testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the
presentation of evidence on her alleged ignorance of the true civil
status of the testator, which led private respondents to present
contrary evidence, merits the application of the doctrine enunciated
in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix
Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247,
June 27, 1975). Respondents also submit that the admission of the
testator of the illicit relationship between him and the petitioner
put in issue the legality of the devise. We agree with the
respondents.
The respondent court acted within its jurisdiction when after
declaring the Will to be validly drawn, it went on to pass upon the
intrinsic validity of the Will and declared the devise in favor of the
petitioner null and void.
The general rule is that in probate proceedings, the court's area of
inquiry is limited to an examination and resolution of the extrinsic
validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and
definitively settles all questions concerning capacity of the
testator and the proper execution and witnessing of his last
Will and testament, irrespective of whether its provisions are
valid and enforceable or otherwise. (Fernandez v.
Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's
area of inquiry is limited to the extrinsic validity thereof. The
testators testamentary capacity and the compliance with the
formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any
inquiry into the intrinsic validity or efficacy of the provisions
of the will or the legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of
the petition for probate. Probate is one thing; the validity of
the testamentary provisions is another. The first decides the
execution of the document and the testamentary capacity of
the testator; the second relates to descent and distribution
(Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for
all, the facts that a will was executed with the formalities
required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the
new code for the probate of a will. (Sec. 625). The judgment
in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity
of any provisions made in the will. It can not decide, for
example, that a certain legacy is void and another one valid. ...
(Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator
instituted the petitioner as universal heir and completely preterited her
surviving forced heirs. A will of this nature, no matter how valid it may
appear extrinsically, would be null and void. Separate or latter
proceedings to determine the intrinsic validity of the testamentary
provisions would be superfluous.
Even before establishing the formal validity of the will, the Court
in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the
validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in
passing upon the intrinsic validity of the will, before
ruling on its allowance or formal validity, and in
declaring it void.
We are of the opinion that in view of certain unusual
provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for
probate (which the lower court assumed to have been
filed with the petitioner's authorization) the trial court
acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been
established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before
it is probated, the court should meet the issue (Nuguid v.
Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with
Sumilang vs. Ramagosa L-23135, December 26, 1967,
21 SCRA 1369; Cacho v. Udan L-19996, April 30,
1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic
validity of the Will. Both parties are agreed that the Will of
Martin Jugo was executed with all the formalities required by law
and that the testator had the mental capacity to execute his Will.
The petitioner states that she completely agrees with the
respondent court when in resolving the question of whether or not
the probate court correctly denied the probate of Martin Jugo's last
Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page
4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the
Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent
court to declare the testamentary provision in favor of the
petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid
v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught
that appears in the record, in the record, in the event of
probate or if the court rejects the will, probability exists
20
that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will.
Result, waste of time, effort, expense, plus added
anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on
the issue of the validity of the provisions of the will in
question. (Section 2, Rule 1, Rules of Court. Case, et al.
v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a
justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the
nullified provision to the proper court in a separate action for that
purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration
of nullity may be brought by the spouse of the donor or
donee; and the guilt of the donor and donee may be
proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning
donations inter vivos shall apply to testamentary
provisions.
In Article III of the disputed Will, executed on August 15, 1968, or
almost six years before the testator's death on July 16, 1974,
Martin Jugo stated that respondent Rufina Gomez was his legal
wife from whom he had been estranged "for so many years." He
also declared that respondents Carmelita Jugo and Oscar Jugo were
his legitimate children. In Article IV, he stated that he had been
living as man and wife with the petitioner since 1952. Testator
Jugo declared that the petitioner was entitled to his love and
affection. He stated that Nepomuceno represented Jugo as her own
husband but "in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because
of my aforementioned previous marriage.
There is no question from the records about the fact of a prior
existing marriage when Martin Jugo executed his Will. There is
also no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J.
Nepomuceno contracted a marriage before the Justice of the Peace of
Victoria, Tarlac. The man was then 51 years old while the woman was
48. Nepomuceno now contends that she acted in good faith for 22 years
in the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As
argued by the private respondents:
First. The last will and testament itself expressly admits
indubitably on its face the meretricious relationship between
the testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of
evidence on her alleged ignorance of the true civil status of the
testator, which led private respondents to present contrary
evidence.
In short, the parties themselves dueled on the intrinsic validity
of the legacy given in the will to petitioner by the deceased
testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the
man he had lived with as man and wife, as already married,
was an important and specific issue brought by the parties
before the trial court, and passed upon by the Court of
Appeals.
Instead of limiting herself to proving the extrinsic validity of
the will, it was petitioner who opted to present evidence on her
alleged good faith in marrying the testator. (Testimony of
Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would
refute the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator,
testified at length on the meretricious relationship of his
brother and petitioner. (TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the
parties made a decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a
ruling on the question.
When the court a quo held that the testator Martin Jugo and
petitioner 'were deemed guilty of adultery or concubinage', it
was a finding that petitioner was not the innocent woman she
pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then
private respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the
deceased testator in a town in Tarlac where neither she nor the
 testator ever resided. If there was nothing to hide from,
why the concealment' ? Of course, it maybe argued that
the marriage of the deceased with private respondent
Rufina Gomez was likewise done in secrecy. But it
should be remembered that Rufina Gomez was already
in the family way at that time and it would seem that the
parents of Martin Jugo were not in favor of the marriage
so much so that an action in court was brought
concerning the marriage. (Testimony of Sebastian Jugo,
TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased
testator when they were still both single. That would be
in 1922 as Martin Jugo married respondent Rufina
Gomez on November 29, 1923 (Exh. 3). Petitioner
married the testator only on December 5, 1952. There
was a space of about 30 years in between. During those
30 years, could it be believed that she did not even
wonder why Martin Jugo did not marry her nor contact
her anymore after November, 1923 - facts that should
impel her to ask her groom before she married him in
secrecy, especially so when she was already about 50
years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin
Jugo in 1923 is by itself conclusive demonstration that
she new that the man she had openly lived for 22 years
as man and wife was a married man with already two
children.
FOURTH: Having admitted that she knew the children
of respondent Rufina Gomez, is it possible that she
would not have asked Martin Jugo whether or not they
were his illegitimate or legitimate children and by
whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of
the parents of the deceased testator, is it possible that
she would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses
of the parents of Martin Jugo (where he had lived for
many years) and that of respondent Rufina Gomez were
just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are
unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in
common life and the ordinary instincts and promptings
of human nature that a woman would not bother at all to
ask the man she was going to marry whether or not he
was already married to another, knowing that her groom
21
had children. It would be a story that would strain human by Atlas Consolidated Mining and Development Corporation (ATLAS)
credulity to the limit if petitioner did not know that of some mining claims in Pina-Barot, Cebu.
Martin Jugo was already a married man in view of the On November 21, 1970, the PROBATE COURT, upon motion of
irrefutable fact that it was precisely his marriage to QUEMADA and after an ex parte hearing, appointed him special
respondent Rufina Gomez that led petitioner to break off administrator of the entire estate of PASTOR, SR., whether or not
with the deceased during their younger years. covered or affected by the holographic will. He assumed office as such
Moreover, the prohibition in Article 739 of the Civil Code is on December 4, 1970 after filing a bond of P 5,000.00.
against the making of a donation between persons who are living
On December 7, 1970, QUEMADA as special administrator, instituted
in adultery or concubinage. It is the donation which becomes void. against PASTOR, JR. and his wife an action for reconveyance of
The giver cannot give even assuming that the recipient may alleged properties of the estate, which included the properties subject of
receive. The very wordings of the Will invalidate the legacy the legacy and which were in the names of the spouses PASTOR, JR.
because the testator admitted he was disposing the properties to a and his wife, Maria Elena Achaval de Pastor, who claimed to be the
person with whom he had been living in concubinage. owners thereof in their own rights, and not by inheritance. The action,
WHEREFORE, the petition is DISMISSED for lack of merit. The docketed as Civil Case No. 274-R, was filed with the Court of First
decision of the Court of Appeals, now Intermediate Appellate Instance of Cebu, Branch IX.
Court, is AFFIRMED. No costs.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their
SO ORDERED. opposition to the petition for probate and the order appointing
G.R. No. L-56340 June 24, 1983 QUEMADA as special administrator.
SPOUSES ALVARO PASTOR, JR. and MA. ELENA On December 5, 1972, the PROBATE COURT issued an order allowing
ACHAVAL DE PASTOR, petitioners, the will to probate. Appealed to the Court of Appeals in CA-G.R. No.
vs. 52961- R, the order was affirmed in a decision dated May 9, 1977. On
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF petition for review, the Supreme Court in G.R. No. L-46645 dismissed
BRANCH I, COURT OF FIRST INSTANCE OF CEBU and the petition in a minute resolution dated November 1, 1977 and
LEWELLYN BARLITO QUEMADA, respondents. remanded the same to the PROBATE COURT after denying
reconsideration on January 11, 1978.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
For two years after remand of the case to the PROBATE COURT,
Ceniza, Rama & Associates for private respondents. QUEMADA filed pleading after pleading asking for payment of his
legacy and seizure of the properties subject of said legacy. PASTOR,
PLANA, J.: JR. and SOFIA opposed these pleadings on the ground of pendency of
the reconveyance suit with another branch of the Cebu Court of First
I. FACTS: Instance. All pleadings remained unacted upon by the PROBATE
This is a case of hereditary succession. COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu
City on June 5, 1966, survived by his Spanish wife Sofia Bossio intrinsic validity of the will for March 25, 1980, but upon objection of
PASTOR, JR. and SOFIA on the e ground of pendency of the
(who also died on October 21, 1966), their two legitimate children
Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely reconveyance suit, no hearing was held on March 25. Instead, the
(SOFIA), and an illegitimate child, not natural, by the name of PROBATE COURT required the parties to submit their respective
Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a position papers as to how much inheritance QUEMADA was entitled to
Philippine citizen, having been naturalized in 1936. SOFIA is a receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA
Spanish subject. QUEMADA is a Filipino by his mother's submitted their Memorandum of authorities dated April 10, which in
citizenship. effect showed that determination of how much QUEMADA should
receive was still premature. QUEMADA submitted his Position paper
On November 13, 1970, QUEMADA filed a petition for the
dated April 20, 1980. ATLAS, upon order of the Court, submitted a
probate and allowance of an alleged holographic will of PASTOR,
sworn statement of royalties paid to the Pastor Group of tsn from June
SR. with the Court of First Instance of Cebu, Branch I (PROBATE
COURT), docketed as SP No. 3128-R. The will contained only one 1966 (when Pastor, Sr. died) to February 1980. The statement revealed
testamentary disposition: a legacy in favor of QUEMADA that of the mining claims being operated by ATLAS, 60% pertained to
the Pastor Group distributed as follows:
consisting of 30% of PASTOR, SR.'s 42% share in the operation
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being
litigated in Branch IX of the Court of First Instance of Cebu, the
PROBATE COURT issued the now assailed Order of Execution
and Garnishment, resolving the question of ownership of the
royalties payable by ATLAS and ruling in effect that the legacy to
QUEMADA was not inofficious. [There was absolutely no
statement or claim in the Order that the Probate Order of
December 5, 1972 had previously resolved the issue of ownership
of the mining rights of royalties thereon, nor the intrinsic validity
of the holographic will.]
The order of August 20, 1980 found that as per the holographic
will and a written acknowledgment of PASTOR, JR. dated June
17, 1962, of the above 60% interest in the mining claims
belonging to the Pastor Group, 42% belonged to PASTOR, SR.
and only 33% belonged to PASTOR, JR. The remaining 25%
belonged to E. Pelaez, also of the Pastor Group. The PROBATE
COURT thus directed ATLAS to remit directly to QUEMADA
the 42% royalties due decedent's estate, of which QUEMADA
was authorized to retain 75% for himself as legatee and to deposit
25% with a reputable banking institution for payment of the estate
taxes and other obligations of the estate. The 33% share of
PASTOR, JR. and/or his assignees was ordered garnished to
answer for the accumulated legacy of QUEMADA from the time
of PASTOR, SR.'s death, which amounted to over two million
pesos.
The order being "immediately executory", QUEMADA succeeded
in obtaining a Writ of Execution and Garnishment on September
4, 1980, and in serving the same on ATLAS on the same day.
Notified of the Order on September 6, 1980, the oppositors sought
reconsideration thereof on the same date primarily on the ground
that the PROBATE COURT gravely abused its discretion when it
resolved the question of ownership of the royalties and ordered
the payment of QUEMADA's legacy after prematurely passing
upon the intrinsic validity of the will. In the meantime, the
PROBATE COURT ordered suspension of payment of all
royalties due PASTOR, JR. and/or his assignees until after
resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved,
however, PASTOR, JR., this time joined by his wife Ma. ELENA
ACHAVAL DE PASTOR, filed with the Court of Appeals a
Petition for certiorari and Prohibition with a prayer for writ of
preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed
the Order dated August 20, 1980 and the writ of execution and
garnishment issued pursuant thereto. The petition was denied on
22
November 18, 1980 on the grounds (1) that its filing was
premature because the Motion for Reconsideration of the
questioned Order was still pending determination by the
PROBATE COURT; and (2) that although "the rule that a motion
for reconsideration is prerequisite for an action for certiorari is
never an absolute rule," the Order assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for
reconsideration of the Court of Appeal's decision of November 18,
1980, calling the attention of the appellate court to another order of
the Probate Court dated November 11, 1980 (i.e., while their
petition for certiorari was pending decision in the appellate court),
by which the oppositors' motion for reconsideration of the Probate
Court's Order of August 20, 1980 was denied. [The November 11
Order declared that the questions of intrinsic validity of the will
and of ownership over the mining claims (not the royalties alone)
had been finally adjudicated by the final and executory Order of
December 5, 1972, as affirmed by the Court of Appeals and the
Supreme Court, thereby rendering moot and academic the suit for
reconveyance then pending in the Court of First Instance of Cebu,
Branch IX. It clarified that only the 33% share of PASTOR, JR. in
the royalties (less than 7.5% share which he had assigned to
QUEMADA before PASTOR, SR. died) was to be garnished and
that as regards PASTOR, SR.'s 42% share, what was ordered was
just the transfer of its possession to the custody of the PROBATE
COURT through the special administrator. Further, the Order
granted QUEMADA 6% interest on his unpaid legacy from August
1980 until fully paid.] Nonetheless, the Court of Appeals denied
reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ
of pre y injunction, assailing the decision of the Court of Appeals
dated November 18, 1980 as well as the orders of the Probate
Court dated August 20, 1980, November 11, 1980 and December
17, 1980, Med by petitioners on March 26, 1981, followed by a
Supplemental Petition with Urgent Prayer for Restraining Order.
In April 1981, the Court (First Division) issued a writ of
preliminary injunction, the lifting of which was denied in the
Resolution of the same Division dated October 18, 1982, although
the bond of petitioners was increased from P50,000.00 to
P100,000.00.
Between December 21, 1981 and October 12, 1982, private
respondent filed seven successive motions for early resolution.
Five of these motions expressly prayed for the resolution of the
question as to whether or not the petition should be given due
course.
On October 18, 1982, the Court (First Division) adopted a
resolution stating that "the petition in fact and in effect was given
due course when this case was heard on the merits on September 7,
(should be October 21, 1981) and concise memoranda in amplification
of their oral arguments on the merits of the case were filed by the parties
pursuant to the resolution of October 21, 1981 . . . " and denied in a
resolution dated December 13, 1982, private respondent's "Omnibus
motion to set aside resolution dated October 18, 1982 and to submit the
matter of due course to the present membership of the Division; and to
reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and
December 13, 1982 Resolutions, the Court en banc resolved to
CONFIRM the questioned resolutions insofar as hey resolved that the
petition in fact and in effect had been given due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the
Order of execution and garnishment dated August 20, 1980 as well as
the Orders subsequently issued allegedly to implement the Probate
Order of December 5, 1972, to wit: the Order of November 11, 1980
declaring that the Probate Order of 1972 indeed resolved the issues of
ownership and intrinsic validity of the will, and reiterating the Order of
Execution dated August 20, 1980; and the Order of December 17, 1980
reducing to P2,251,516.74 the amount payable to QUEMADA
representing the royalties he should have received from the death of
PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic
will in probate, is not questioned. But petitioners denounce the Probate
Court for having acted beyond its jurisdiction or with grave abuse of
discretion when it issued the assailed Orders. Their argument runs this
way: Before the provisions of the holographic win can be implemented,
the questions of ownership of the mining properties and the intrinsic
validity of the holographic will must first be resolved with finality.
Now, contrary to the position taken by the Probate Court in 1980 — i.e.,
almost eight years after the probate of the will in 1972 — the Probate
Order did not resolve the two said issues. Therefore, the Probate Order
could not have resolved and actually did not decide QUEMADA's
entitlement to the legacy. This being so, the Orders for the payment of
the legacy in alleged implementation of the Probate Order of 1972 are
unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The
Probate Order of 1972 having become final and executory, how can its
implementation (payment of legacy) be restrained? Of course, the
question assumes that QUEMADA's entitlement to the legacy was
finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of
December 5, 1972 resolved with finality the questions of ownership and
intrinsic validity. A negative finding will necessarily render moot and
academic the other issues raised by the parties, such as the jurisdiction
of the Probate Court to conclusively resolve title to property, and the
constitutionality and repercussions of a ruling that the mining properties
in dispute, although in the name of PASTOR, JR. and his wife,
really belonged to the decedent despite the latter's constitutional
disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of
certiorari as a means to assail the validity of the order of execution
and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership —
(a) In a special proceeding for the probate of a will, the issue by
and large is restricted to the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind, freely executed the will
in accordance with the formalities prescribed by law. (Rules of
Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the
question of ownership is an extraneous matter which the Probate
Court cannot resolve with finality. Thus, for the purpose of
Then came what purports to be the dispositive portion:
determining whether a certain property should or should not be
included in the inventory of estate properties, the Probate Court
may pass upon the title thereto, but such determination is
provisional, not conclusive, and is subject to the final decision in a
separate action to resolve title. [3 Moran, Comments on the Rules
of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court
of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to that
decreed in the dispositive part of the decision. (Philippine-
American Insurance Co. vs. Honorable Flores, 97 SCRA 811.)
However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the judgment.
(Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of
Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)
The Order sought to be executed by the assailed Order of
execution is the Probate Order of December 5, 1972 which
allegedly resolved the question of ownership of the disputed
mining properties. The said Probate Order enumerated the issues
before the Probate Court, thus:
Unmistakably, there are three aspects in these
proceedings: (1) the probate of the holographic will (2)
the intestate estate aspect; and (3) the administration
proceedings for the purported estate of the decedent in
the Philippines.
In its broad and total perspective the whole proceedings
are being impugned by the oppositors on jurisdictional
grounds, i.e., that the fact of the decedent's residence
and existence of properties in the Philippines have not
been established.
Specifically placed in issue with respect to the probate
proceedings are: (a) whether or not the holographic will
23
(Exhibit "J") has lost its efficacy as the last will and
testament upon the death of Alvaro Pastor, Sr. on June 5,
1966, in Cebu City, Philippines; (b) Whether or not the
said will has been executed with all the formalities
required by law; and (c) Did the late presentation of the
holographic will affect the validity of the same?
Issues In the Administration Proceedings are as follows:
(1) Was the ex- parte appointment of the petitioner as
special administrator valid and proper? (2) Is there any
indispensable necessity for the estate of the decedent to
be placed under administration? (3) Whether or not
petition is qualified to be a special administrator of the
estate; and (4) Whether or not the properties listed in the
inventory (submitted by the special administrator but not
approved by the Probate Court) are to be excluded.
Upon the foregoing premises, this Court rules on and
resolves some of the problems and issues presented in
these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate
proceedings as it hereby allows and approves the so-
called holographic will of testator Alvaro Pastor, Sr.,
executed on July 31, 1961 with respect to its extrinsic
validity, the same having been duly authenticated
pursuant to the requisites or solemnities prescribed by
law. Let, therefore, a certificate of its allowance be
prepared by the Branch Clerk of this Court to be signed
by this Presiding Judge, and attested by the seal of the
Court, and thereafter attached to the will, and the will
and certificate filed and recorded by the clerk. Let
attested copies of the will and of the certificate of
allowance thereof be sent to Atlas Consolidated Mining
& Development Corporation, Goodrich Bldg., Cebu City,
and the Register of Deeds of Cebu or of Toledo City, as
the case may be, for recording.
(b) There was a delay in the granting of the letters
testamentary or of administration for as a matter of fact,
no regular executor and/or administrator has been
appointed up to this time and - the appointment of a
special administrator was, and still is, justified under the
circumstances to take possession and charge of the
estate of the deceased in the Philippines (particularly in
Cebu) until the problems causing the delay are decided
and the regular executor and/or administrator appointed.
(c) There is a necessity and propriety of a
special administrator and later on an executor
and/or administrator in these proceedings, in
spite of this Court's declaration that the oppositors
are the forced heirs and the petitioner is merely
vested with the character of a voluntary heir to the
extent of the bounty given to him (under) the
will insofar as the same will not prejudice the
legitimes of the oppositorfor the following reasons:
1. To submit a complete inventory of the estate of the
decedent-testator Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific utilization of
the properties of the decedent;
3. To keep and maintain the houses and other structures and
belonging to the estate, since the forced heirs are residing in
Spain, and prepare them for delivery to the heirs in good order
after partition and when directed by the Court, but only after
the payment of estate and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of
ownership and possession of real and personal properties in
Civil Case No. 274-T before Branch IX of the Court of First
Instance of Cebu, the intestate estate administration aspect
must proceed, unless, however, it is duly proven by the
oppositors that debts of the decedent have already been paid,
that there had been an extrajudicial partition or summary one
between the forced heirs, that the legacy to be given and
delivered to the petitioner does not exceed the free portion of
the estate of the testator, that the respective shares of the
forced heirs have been fairly apportioned, distributed and
delivered to the two forced heirs of Alvaro Pastor, Sr., after
deducting the property willed to the petitioner, and the estate
and inheritance taxes have already been paid to the
Government thru the Bureau of Internal Revenue.
The suitability and propriety of allowing petitioner to remain
as special administrator or administrator of the other
properties of the estate of the decedent, which properties are
not directly or indirectly affected by the provisions of the
holographic will (such as bank deposits, land in Mactan etc.),
will be resolved in another order as separate
incident, considering that this order should have been
properly issued solely as a resolution on the issue of whether
or not to allow and approve the aforestated will. (Emphasis
supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of
specific properties. On the contrary, it is manifest therein that ownership
was not resolved. For it confined itself to the question of extrinsic
validity of the win, and the need for and propriety of appointing a
special administrator. Thus it allowed and approved the holographic win
"with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by
law." It declared that the intestate estate administration aspect
must proceed " subject to the outcome of the suit for
reconveyance of ownership and possession of real and personal
properties in Civil Case 274-T before Branch IX of the CFI of
Cebu." [Parenthetically, although the statement refers only to the
"intestate" aspect, it defies understanding how ownership by the
estate of some properties could be deemed finally resolved for
purposes of testate administration, but not so
for intestate purposes. Can the estate be the owner of a property
for testate but not for intestate purposes?] Then again, the Probate
Order (while indeed it does not direct the implementation of the
legacy) conditionally stated that the intestate administration aspect
must proceed "unless . . . it is proven . . . that the legacy to be
given and delivered to the petitioner does not exceed the free
portion of the estate of the testator," which clearly implies that the
issue of impairment of legitime (an aspect of intrinsic validity)
was in fact not resolved. Finally, the Probate Order did not rule on
the propriety of allowing QUEMADA to remain as special
administrator of estate properties not covered by the holographic
will, "considering that this (Probate) Order should have been
properly issued solely as a resolution on the issue of whether or
not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of
ownership of the properties listed in the estate inventory was
appropriate, considering that the issue of ownership was the very
subject of controversy in the reconveyance suit that was still
pending in Branch IX of the Court of First Instance of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the
Supreme Court affirmed en toto when they reviewed the Probable
Order were only the matters properly adjudged in the said Order.
(e) In an attempt to justify the issuance of the Order of execution
dated August 20, 1980, the Probate Court in its Order of
November 11, 1980 explained that the basis for its conclusion that
the question of ownership had been formally resolved by the
Probate Order of 1972 are the findings in the latter Order that (1)
during the lifetime of the decedent, he was receiving royalties
from ATLAS; (2) he had resided in the Philippines since pre-war
days and was engaged in the mine prospecting business since
1937 particularly in the City of Toledo; and (3) PASTOR, JR. was
only acting as dummy for his father because the latter was a
Spaniard.
Based on the premises laid, the conclusion is obviously far-
fetched.
(f) It was, therefore, error for the assailed implementing Orders to
conclude that the Probate Order adjudged with finality the
question of ownership of the mining properties and royalties, and
that, premised on this conclusion, the dispositive portion of the
24
said Probate Order directed the special administrator to pay the
legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will -
(a) When PASTOR, SR. died in 1966, he was survived by his wife,
aside from his two legitimate children and one illegitimate son.
There is therefore a need to liquidate the conjugal partnership and
set apart the share of PASTOR, SR.'s wife in the conjugal
partnership preparatory to the administration and liquidation of the
estate of PASTOR, SR. which will include, among others, the
determination of the extent of the statutory usufructuary right of
his wife until her death. * When the disputed Probate order was
issued on December 5, 1972, there had been no liquidation of the
community properties of PASTOR, SR. and his wife.
(b) So, also, as of the same date, there had been no prior definitive
determination of the assets of the estate of PASTOR, SR. There
was an inventory of his properties presumably prepared by the
special administrator, but it does not appear that it was ever the
subject of a hearing or that it was judicially approved. The
reconveyance or recovery of properties allegedly owned but not in
the name of PASTOR, SR. was still being litigated in another
court.
(c) There was no appropriate determination, much less payment, of
the debts of the decedent and his estate. Indeed, it was only in the
Probate Order of December 5, 1972 where the Probate Court
ordered that-
... a notice be issued and published pursuant to
the provisions of Rule 86 of the Rules of Court,
requiring all persons having money claims
against the decedent to file them in the office of
the Branch Clerk of this Court."
(d) Nor had the estate tax been determined and paid, or at least
provided for, as of December 5, 1972.
(e) The net assets of the estate not having been determined, the
legitime of the forced heirs in concrete figures could not be
ascertained.
(f) All the foregoing deficiencies considered, it was not possible to
determine whether the legacy of QUEMADA - a fixed share in a
specific property rather than an aliquot part of the entire net estate
of the deceased - would produce an impairment of the legitime of
the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic
validity of the will in other respects. It was obviously for this
reason that as late as March 5, 1980 - more than 7 years after the
Probate Order was issued the Probate Court scheduled on March
25, 1980 a hearing on the intrinsic validity of the will.
3. Propriety of certiorari —
Private respondent challenges the propriety of certiorari as a means to
assail the validity of the disputed Order of execution. He contends that
the error, if any, is one of judgment, not jurisdiction, and properly
correctible only by appeal, not certiorari.
Under the circumstances of the case at bar, the challenge must be
rejected. Grave abuse of discretion amounting to lack of jurisdiction is
much too evident in the actuations of the probate court to be overlooked
or condoned.
(a) Without a final, authoritative adjudication of the issue as to what
properties compose the estate of PASTOR, SR. in the face of conflicting
claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE
PASTOR) involving properties not in the name of the decedent, and in
the absence of a resolution on the intrinsic validity of the will here in
question, there was no basis for the Probate Court to hold in its Probate
Order of 1972, which it did not, that private respondent is entitled to the
payment of the questioned legacy. Therefore, the Order of Execution of
August 20, 1980 and the subsequent implementing orders for the
payment of QUEMADA's legacy, in alleged implementation of the
dispositive part of the Probate Order of December 5, 1972, must fall for
lack of basis.
(b) The ordered payment of legacy would be violative of the rule
requiring prior liquidation of the estate of the deceased, i.e., the
determination of the assets of the estate and payment of all debts and
expenses, before apportionment and distribution of the residue among
the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on the estate of PASTOR, SR.
Payment therefore of the legacy to QUEMADA would collide with the
provision of the National Internal Revenue Code requiring payment of
estate tax before delivery to any beneficiary of his distributive share of
the estate (Section 107 [c])
(d) The assailed order of execution was unauthorized, having been
issued purportedly under Rule 88, Section 6 of the Rules of Court which
reads:
Sec. 6. Court to fix contributive shares where
devisees, legatees, or heirs have been in possession.
— Where devisees, legatees, or heirs have entered
into possession of portions of the estate before
the debts and expenses have been settled and paid
and have become liable to contribute for the
payment of such debts and expenses, the court
having jurisdiction of the estate may, by order for
that purpose, after hearing, settle the amount of their
several liabilities, and order how much and in what
manner each person shall contribute, and may issue
execution as circumstances require.
The above provision clearly authorizes execution to enforce
payment of debts of estate. A legacy is not a debt of the estate;
indeed, legatees are among those against whom execution is
authorized to be issued.
... there is merit in the petitioners' contention
that the probate court generally cannot issue a
writ of execution. It is not supposed to issue a
writ of execution because its orders usually
refer to the adjudication of claims against the
estate which the executor or administrator may
satisfy without the necessity of resorting to a
writ of execution. The probate court, as such,
does not render any judgment enforceable by
execution.
The circumstances that the Rules of Court
expressly specifies that the probate court may
issue execution (a) to satisfy (debts of the
estate out of) the contributive shares of
devisees, legatees and heirs in possession of
the decedent's assets (Sec. 6. Rule 88), (b) to
enforce payment of the expenses of partition
(Sec. 3, Rule 90), and (c) to satisfy the costs
when a person is cited for examination in
probate proceedings (Sec. 13, Rule 142) may
mean, under the rule of inclusion unius est
exclusion alterius, that those are the only
instances when it can issue a writ of execution.
(Vda. de Valera vs. Ofilada, 59 SCRA 96,
108.)
(d) It is within a court's competence to order the execution of a
final judgment; but to order the execution of a final order (which
is not even meant to be executed) by reading into it terms that are
not there and in utter disregard of existing rules and law, is
manifest grave abuse of discretion tantamount to lack of
jurisdiction. Consequently, the rule that certiorari may not be
invoked to defeat the right of a prevailing party to the execution of
a valid and final judgment, is inapplicable. For when an order of
execution is issued with grave abuse of discretion or is at variance
with the judgment sought to be enforced (PVTA vs. Honorable
Gonzales, 92 SCRA 172), certiorari will lie to abate the order of
execution.
(e) Aside from the propriety of resorting to certiorari to assail an
order of execution which varies the terms of the judgment sought
to be executed or does not find support in the dispositive part of
the latter, there are circumstances in the instant case which justify
the remedy applied for.
25
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of
PASTOR, JR., is the holder in her own right of three mining
claims which are one of the objects of conflicting claims of
ownership. She is not an heir of PASTOR, SR. and was not a party
to the probate proceedings. Therefore, she could not appeal from
the Order of execution issued by the Probate Court. On the other
hand, after the issuance of the execution order, the urgency of the
relief she and her co-petitioner husband seek in the petition for
certiorari states against requiring her to go through the
cumbersome procedure of asking for leave to intervene in the
probate proceedings to enable her, if leave is granted, to appeal
from the challenged order of execution which has ordered
the immediate transfer and/or garnishment of the royalties derived
from mineral properties of which she is the duly registered owner
and/or grantee together with her husband. She could not have
intervened before the issuance of the assailed orders because she
had no valid ground to intervene. The matter of ownership over the
properties subject of the execution was then still being litigated in
another court in a reconveyance suit filed by the special
administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for
certiorari with the Court of Appeals, appeal was not available to
him since his motion for reconsideration of the execution order
was still pending resolution by the Probate Court. But in the face
of actual garnishment of their major source of income, petitioners
could no longer wait for the resolution of their motion for
reconsideration. They needed prompt relief from the injurious
effects of the execution order. Under the circumstances, recourse
to certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R.
No. SP-11373-R is reversed. The Order of execution issued by the
probate Court dated August 20, 1980, as well as all the Orders
issued subsequent thereto in alleged implementation of the Probate
Order dated December 5, 1972, particularly the Orders dated
November 11, 1980 and December 17, 1980, are hereby set aside;
and this case is remanded to the appropriate Regional Trial Court
for proper proceedings, subject to the judgment to be rendered in
Civil Case No. 274-R.
SO ORDERED.