Succession Feb 21 Provisions + Digests

SUCCESSION FEB 21 PROVISIONS + DIGESTS Page 1 of 29
III. Holographic wills; witnesses to wills; codicils and country in which he may be. Such will may be probated in the
incorporation by reference; revocation of wills and testamentary Philippines. (n)
dispositions; republication and revival of wills)
Art. 816. The will of an alien who is abroad produces effect in the
Articles 810-837, Civil Code: Philippines if made with the formalities prescribed by the law of
the place in which he resides, or according to the formalities
Art. 810. A person may execute a holographic will which must be observed in his country, or in conformity with those which this
entirely written, dated, and signed by the hand of the testator Code prescribes. (n)
himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed.(678, 688a) Art. 817. A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with the law of
Art. 811. In the probate of a holographic will, it shall be necessary the country of which he is a citizen or subject, and which might be
that at least one witness who knows the handwriting and proved and allowed by the law of his own country, shall have the
signature of the testator explicitly declare that the will and the same effect as if executed according to the laws of the
signature are in the handwriting of the testator. If the will is Philippines. (n)
contested, at least three of such witnesses shall be required.
Art. 818. Two or more persons cannot make a will jointly, or in the
In the absence of any competent witness referred to in the same instrument, either for their reciprocal benefit or for the
preceding paragraph, and if the court deem it necessary, expert benefit of a third person. (669)
testimony may be resorted to. (619a)
Art. 819. Wills, prohibited by the preceding article, executed by
Art. 812. In holographic wills, the dispositions of the testator Filipinos in a foreign country shall not be valid in the Philippines,
written below his signature must be dated and signed by him in even though authorized by the laws of the country where they may
order to make them valid as testamentary dispositions. (n) have been executed. (733a)  

Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last SUBSECTION 4. - Witnesses to Wills
disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior Art. 820. Any person of sound mind and of the age of eighteen
dispositions. (n) years or more, and not bind, deaf or dumb, and able to read and
write, may be a witness to the execution of a will mentioned in
Art. 814. In case of any insertion, cancellation, erasure or Article 805 of this Code. (n)
alteration in a holographic will, the testator must authenticate the Art. 821. The following are disqualified from being witnesses to a
same by his full signature. (n) will:
Art. 815. When a Filipino is in a foreign country, he is authorized to • (1) Any person not domiciled in the Philippines; 
make a will in any of the forms established by the law of the (2) Those who have been convicted of falsification of a
document, perjury or false testimony. (n)  stating among other things the number of pages thereof; 
(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and 
Art. 822. If the witnesses attesting the execution of a will are (4) It must be signed by the testator and the witnesses on
competent at the time of attesting, their becoming subsequently each and every page, except in case of voluminous books
incompetent shall not prevent the allowance of the will. (n) of account or inventories. (n) 
Art. 823. If a person attests the execution of a will, to whom or to
whose spouse, or parent, or child, a devise or legacy is given by
such will, such devise or legacy shall, so far only as concerns SUBSECTION 6. - Revocation of Wills and Testamentary
such person, or spouse, or parent, or child of such person, or any Dispositions
one claiming under such person or spouse, or parent, or child, be
void, unless there are three other competent witnesses to such Art. 828. A will may be revoked by the testator at any time before
will. However, such person so attesting shall be admitted as a his death. Any waiver or restriction of this right is void. (737a)
witness as if such devise or legacy had not been made or Art. 829. A revocation done outside the Philippines, by a person
given. (n) who does not have his domicile in this country, is valid when it is
done according to the law of the place where the will was made, or
Art. 824. A mere charge on the estate of the testator for the according to the law of the place in which the testator had his
payment of debts due at the time of the testator's death does not domicile at the time; and if the revocation takes place in this
prevent his creditors from being competent witnesses to his country, when it is in accordance with the provisions of this
will. (n) Code. (n)
SUBSECTION 5. - Codicils and Incorporation by Reference Art. 830. No will shall be revoked except in the following cases:
Art. 825. A codicil is supplement or addition to a will, made after
the execution of a will and annexed to be taken as a part thereof, • (1) By implication of law; or 
by which disposition made in the original will is explained, added (2) By some will, codicil, or other writing executed as
to, or altered. (n) provided in case of wills; or 
(3) By burning, tearing, cancelling, or obliterating the will
Art. 826. In order that a codicil may be effective, it shall be with the intention of revoking it, by the testator himself, or
executed as in the case of a will. (n) by some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some
Art. 827. If a will, executed as required by this Code, incorporates other person, without the express direction of the testator,
into itself by reference any document or paper, such document or the will may still be established, and the estate distributed
paper shall not be considered a part of the will unless the in accordance therewith, if its contents, and due execution,
following requisites are present: and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of
• (1) The document or paper referred to in the will must be in Court. (n) 
existence at the time of the execution of the will; 
(2) The will must clearly describe and identify the same,
Art. 831. Subsequent wills which do not revoke the previous ones  
in an express manner, annul only such dispositions in the prior *Cases: 
wills as are inconsistent with or contrary to those contained in the 1. SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE
latter wills. (n) COURT OF APPEALS AND CLEMENTE SAND, respondents. [G.R.
Art. 832. A revocation made in a subsequent will shall take effect, No. 106720. September 15, 1994.] ->
even if the new will should become inoperative by reason of the
incapacity of the heirs, devisees or legatees designated therein, or FACTS: The holographic will of the late Annie Sand, who died on
by their renunciation. (740a) November 25, 1982, was submitted for probate with the RTC of
Quezon City. In the will, Sand named as devisees, the following:
Art. 833. A revocation of a will based on a false cause or an illegal petitioners spouses Roberto and Thelma Ajero, private respondent
cause is null and void. (n) Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand,
Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
Art. 834. The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made should be On January 20, 1983, Ajero instituted Sp. Proc. No. Q-37171, for
revoked. (714)   allowance of Sand's holographic will. This was opposed by Clemente
Sand and others.
SUBSECTION 7. - Republication and Revival of Wills PETITIONER’S CONTENTION: They alleged that at the time of the
execution of the holographic will, Annie was of sound and disposing
Art. 835. The testator cannot republish, without reproducing in a mind, not acting under duress, fraud or undue influence, and was in
subsequent will, the dispositions contained in a previous one every respect capacitated to dispose of her estate by will.
which is void as to its form. (n)
Art. 836. The execution of a codicil referring to a previous will has RESPONDENT’S CONTENTION: Clemente opposed the petition on
the effect of republishing the will as modified by the codicil. (n) the grounds that: neither the testament's body nor the signature therein
was in Sand's handwriting; it contained alterations and corrections
Art. 837. If after making a will, the testator makes a second will which were not duly signed by Annie; and, the will was procured by the
expressly revoking the first, the revocation of the second will does Ajeros through improper pressure and undue influence. The petition
not revive the first will, which can be revived only by another will was likewise opposed by Dr. Jose Ajero - regarding that the disposition
or codicil. (739a) in the will of a house and lot located in Cabadbaran, Agusan Del Norte -
he claimed that said property could not be conveyed by Sand in its
  entirety, as she was not its sole owner.
TRIAL COURT RULING: In favor of Spouses Ajero. The trial court

admitted the decedent's holographic will to probate. It found, inter
alia: "Considering then that the probate proceedings herein must
decide only the question of identity of the will, its due execution and the
testamentary capacity of the testatrix, this probate court finds no reason
at all for the disallowance of the will for its failure to comply with the
formalities prescribed by law nor for lack of testamentary capacity of the the Court of Appeals held that decedent Annie Sand could not
testatrix. For one, no evidence was presented to show that the will in validly dispose of the house and lot located in Cabadbaran,
question is different from the will actually executed by the testatrix. The Agusan del Norte, in its entirety, since she shares this property
only objections raised by the oppositors, are that the will was not written with her father's other heirs.
in the handwriting of the testatrix which properly refers to the question
of its due execution, and not to the question of identity of will. No other Likewise, a holographic will can still be admitted to probate,
will was alleged to have been executed by the testatrix other than the notwithstanding non- compliance with the provisions of Article 814. In
will herein presented. the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984), this Court
held: "Ordinarily, when a number of erasures, corrections, and
CA RULING: In favor Clemente. It reversed the trial court’s decision - interlineations made by the testator in a holographic Will have not been
dismissing the petition for probate of decedent's will. The Court of noted under his signature, . . . the Will is not thereby invalidated as a
Appeals found that, "the holographic will fails to meet the requirements whole, but at most only as respects the particular words erased,
for its validity.” It held that the decedent did not comply with Articles 813 corrected or interlined. Manresa gave an identical commentary when he
and 814 of the New Civil Code. It alluded to certain dispositions in the said 'la omision de la salvedad no anula el testamento, segun la regla
will which were either unsigned and undated, or signed but not dated. It de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.'" 8
also found that the erasures, alterations and cancellations made (Emphasis omitted.)
thereon had not been authenticated by decedent.
Thus, unless the unauthenticated alterations, cancellations or insertions
ISSUE: Whether Sand’s holographic will should be allowed?  were made on the date of the holographic will or on testator's signature,
their presence does not invalidate the will itself. The lack of
authentication will only result in disallowance of such changes.
RULING: YES, Sand’s holographic will should be allowed. A
reading of Article 813 of the New Civil Code shows that its It is also proper to note that the requirements of authentication of
requirement affects the validity of the dispositions contained in changes and signing and dating of dispositions appear in provisions
the holographic will, but not its probate. If the testator fails to sign (Articles 813 and 814) separate from that which provides for the
and date some of the dispositions, the result is that these necessary conditions for the validity of the holographic will (Article 810).
dispositions cannot be effectuated. Such failure, however, does The distinction can be traced to Articles 678 and 688 of the Spanish
not render the whole testament void. In the case of holographic Civil Code, from which the present provisions covering holographic wills
wills, on the other hand, what assures authenticity is the are taken. They read as follows:
requirement that they be totally autographic or handwritten by the
testator himself, as provided under Article 810 of the New Civil "Article 678: A will is called holographic when the testator writes it
Code, thus: "A person may execute a holographic will which must himself in the form and with the requisites required in Article 688.
be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or out "Article 688: Holographic wills may be executed only by persons of full
of the Philippines, and need not be witnessed." (Emphasis age.
supplied.). Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that is "In order that the will be valid it must be drawn on stamped paper
unquestionably handwritten by the testator. The SC affirmed when corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year,  
month and day of its execution. 2. IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE
JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS &
"If it should contain any erased, corrected, or interlined words, the PEDRO ROXAS DE JESUS, petitioners, vs. ANDRES R. DE JESUS,
testator must identify them over his signature. JR., respondent. [G.R. No. 38338. January 28, 1985.] ->
"Foreigners may execute holographic wills in their own language." FACTS: A special proceeding entitled "In the Matter of the Intestate
Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed
This separation and distinction adds support to the interpretation that by petitioner Simeon R. Roxas, the brother of the deceased Bibiana
only the requirements of Article 810 of the New Civil Code — and not Roxas de Jesus. Roxas was appointed as administrator and the letters
those found in Articles 813 and 814 of the same Code — are essential of administration was granted to him. Later on, Roxas testified that he
to the probate of a holographic will. found a notebook belonging to the deceased Bibiana R. de Jesus and
that on pages 21, 22, 23 and 24 thereof, a letter-will addressed to her
  children and entirely written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is dated "FEB./61"
and states: "This is my will which I want to be respected altho it is not
written by a lawyer. . .” This discovery was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61" is the holographic Will
of their deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively identified her signature.
They further testified that their deceased mother understood English,
the language in which the holographic Will is written, and that the date
"FEB./61" was the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an

"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because — (a) it was not executed in accordance
with law, (b) it was executed through force, intimidation and/or under
duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and or did not intend, nor could have
intended the said Will to be her last Will and testament at the time of its
execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an

order allowing the probate of the holographic Will which he found to
have been duly executed in accordance with law.
TRIAL COURT RULING: Reconsidered his earlier order and as to its genuineness and due execution. All the children of the
disallowed the probate of the holographic Will on the ground that the testatrix agree on the genuineness of the holographic Will of their
word "dated" has generally been held to include the month, day, and mother and that she had the testamentary capacity at the time of
year. The dispositive portion of the order reads: "WHEREFORE, the the execution of said Will. The objection interposed by the
document purporting to be the holographic Will of Bibiana Roxas de oppositor-respondent Luz Henson is that the holographic Will is
Jesus, is hereby disallowed for not having been executed as required fatally defective because the date "FEB./61" appearing on the
by the law. The order of August 24, 1973 is hereby set aside.” holographic Will is not sufficient compliance with Article 810 of
the Civil Code. This objection is too technical to be entertained. As
PETITIONER’S CONTENTION: Roxas contends that while Article 685 a general rule, the "date" in a holographic Will should include the
of the Spanish Civil Code and Article 688 of the Old Civil Code require day, month, and year of its execution. However, when as in the
the testator to state in his holographic Will the "year, month, and day of case at bar, there is no appearance of fraud, bad faith, undue
its execution," the present Civil Code omitted the phrase "Año, mes y influence and pressure and the authenticity of the Will is
dia" and simply requires that the holographic Will should be dated. The established and the only issue is whether or not the date "FEB./
petitioners submit that the liberal construction of the holographic Will 61" appearing on the holographic Will is a valid compliance with
should prevail. Article 810 of the Civil Code, probate of the holographic Will
should be allowed under the principle of substantial
RESPONDENT’S CONTENTION: Luz Henson on the other hand compliance. This will not be the first time that this Court departs
submits that the purported holographic Will is void for non-compliance from a strict and literal application of the statutory requirements
with Article 810 of the New Civil Code in that the date must contain the regarding the due execution of Wills. We should not overlook the
year, month, and day of its execution. Henson contends that Article 810 liberal trend of the Civil Code in the manner of execution of Wills,
of the Civil Code was patterned after Section 1277 of the California the purpose of which, in case of doubt is to prevent intestacy.
Code and Section 1588 of the Louisiana Code whose Supreme Courts
had consistently ruled that the required date includes the year, month,  
and day, and that if any of these is wanting, the holographic Will is
invalid. Henson further contends that Roxas cannot plead liberal
construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.
ISSUE: Whether Bibiana Roxas de Jesus’ letter will should be allowed?
RULING: YES, Bibiana Roxas de Jesus’ letter will should be

allowed. We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution nor was
there any substitution of Wills and Testaments. There is no
question that the holographic Will of the deceased Bibiana Roxas
de Jesus was entirely written, dated, and signed by the testatrix
herself and in a language known to her. There is also no question
3. In re Will of Francisco Varela Calderon, deceased. FRANCISCO holographic will, neither does it possess the requisites of a public or
CARMELO VARELA, petitioner-appellee, vs. MIGUEL VARELA open will in accordance with the French law.
CALDERON ET AL., opponents-appellants. [G.R. No. 36342. October
8, 1932.] -> ISSUE: Whether Dr Calderon’s will should be allowed?
FACTS: The last will and testament of the late Francisco Varela RULING: YES, Dr Calderon’s will should be allowed. It is an
Calderon was presented for probate with the Court of First Instance of admitted fact that the will was written, dated and signed by the
Manila by petitioner Francisco Carmelo Varela. Said petition was deceased testator, for which reason, there is no doubt that it had
opposed by the deceased's brothers Jose, Miguel, Angel, Jesus, been made and executed in accordance with article 970 of the
Trinidad, Paula, Pilar and Maria, surnamed Varela Calderon, although, French Civil Code were it not for the attestation clause which
later on, the first mentioned opponent withdrew his opposition giving as appears at the bottom of the document. A clause drawn up in such
his reason therefor that it was out of respect for the testator's wishes manner is superfluous and does not affect in any way the
because the will was executed in his own handwriting. The grounds of essential requisites prescribed for holographic wills by the French
the opposition are as follows: (a) That the will sought to be probated law, and, consequently, it has not invalidated the will nor deprived
was not holographic in character and did not comply with the requisites it of its holographic character. In reaching this conclusion, the SC
prescribed by article 970 of the French Civil Code; (b) that the based its opinion not only on the clear and conclusive provisions
witnesses to the will did not possess the qualifications required by of article 970 of the French Civil Code and on the decisions of the
article 980 of the French Civil Code; (c) that for not having complied French Court of Appeals cited in the appellee's brief, but
with the requisites prescribed by the French law, said will is null and principally on the fact established in the depositions made by
void; (d ) that neither has it the character of an open will, not having practicing attorneys F. de Roussy de Sales, Gething C. Miller and
been executed in accordance with article 1001 of the French Civil Henri Gadd of Paris, France, who emphatically declared that the
Code; and (e) that the provisions of article 1007 of the same Code will in question did not lose its holographic character by the
relative to the recording of wills were not complied with in connection addition of the aforementioned attestation clause and that it may
with the will in question. be allowed to probate in conformity with the French laws under
which it had been made and executed.
The late Francisco Calderon (decedent) was a physician and a Filipino
citizen who resides in the City of Manila, where he owned real Although the original will was executed in the French language and had
properties. Dr Calderon traveled abroad for his health and temporarily been written, dated and signed by the testator with his own hand, with
resided in Hendaye-Plage, France. Not feeling very well, but in the full the exception of the attestation clause which appears at the bottom of
enjoyment of his mental faculties, he decided to make his last will and the document. This fact is proved by the testimony of the appellee and
testament (Exhibit B), on April 14, 1930, in Paris, France, with the his other witnesses, including the depositions, and is admitted by the
assistance of attorneys F. de Roussy de Sales, Gething C. Miller and appellants. The petition for the allowance and probate of said will is
Henri Gadd. Sometime later, that is on July 15, 1930, he died in the based on the provisions of article 970 of the French Civil Code and and
Grand-Hotel de Leysin Sanatorium in Switzerland. on section 635 of the Code of the Civil Procedure in force in this
jurisdiction which provides that a will made out of the Philippine Islands
CFI RULING: Admitted Dr Calderon’s will to probate. in accordance with the laws in force in the country in which it was made
PETITIONER’S CONTENTION: Calderon contend that the addition of and which may be allowed and admitted to probate therein.
said clause has entirely vitiated the will, because it ceased to be a
The petition for the allowance and probate of said will is based on the  
provisions of article 970 of the French Civil Code which considers as a 4. TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP
holographic will that which is made or executed, dated and signed by deceased. FAUSTO E. GAN, petitioner-appellant , vs. ILDEFONSO
the testator in his own handwriting without the necessity of any other YAP, oppositor- appellee. [G.R. No. L-12190. August 30, 1958.] ->
formality, and on section 635 of the Code of the Civil Procedure in force
in this jurisdiction which provides that a will made out of the Philippine FACTS: On November 20, 1951, Felicidad Esguerra Alto Yap died of
Islands in accordance with the laws in force in the country in which it heart failure in the University of Santo Tomas Hospital, leaving
was made and which may be allowed and admitted to probate therein, properties in Pulilan, Bulacan, and in the City of Manila. On March 17,
may, also be proved, allowed and recorded in the Philippine Islands in 1952, petitioner Fausto E. Gan initiated these proceedings with the
the same manner and with the same effect as if executed in the latter Court of First Instance of Manila with a petition for the probate of a
country. Both provisions of law literally copied from the English text, holographic will allegedly executed by Felicidad. Opposing the petition,
read as follows: her surviving husband respondent Ildefonso Yap asserted that Felicidad
had not left any will, nor executed any testament during her lifetime.
"(Article 970, French Civil Code)
The will itself was not presented. Gan tried to establish its contents and
"A holographic will is not valid unless it is entirely written, dated, and due execution by the statements in open court of Felina Esguerra,
signed by the testator. No other formality is required. Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez. Felicidad
mentioned during a trip her desire to make a will to Vicente. The latter
"(Article 635, Code of Civil Procedure) asked his nephew, Gan, on the formalities of making a will. Vicente
relayed what Gan told him to Felicidad. in the morning of November 5,
"Will made out of the Philippine Islands. — A will made out of the 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
Philippine Islands which might be proved and allowed by the laws of the signed and dated a holographic will substantially of the tenor above
state or country in which it was made, may be proved, allowed, and transcribed, in the presence of her niece, Felina Esguerra (daughter of
recorded in the Philippine Islands, and shall have the same effect as if Vicente), who was invited to read it. In the afternoon of that day,
executed according to the laws of these Islands." Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who
As we have already said,The court which originally took cognizance of again read it.
the case decided that such circumstance does not invalidate the will.
Nine days later, he had other visitors: Socorro Olarte a cousin, and
  Rosario Gan Jimenez, a niece. To these she showed the will, again in
the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T.

Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse; and being
afraid of him by reason of his well-known violent temper, she- delivered
it to him. Thereafter, in the same day, Ildefonso Yap returned the purse
to Felina, only to demand it the next day shortly before the death of near relatives the choice of either complying with the will if they
Felicidad. Again, Felina handed it to him but not before she had taken think it authentic, or to oppose it, if they think it spurious. Such
the purse to the toilet, opened it and read the will for the last time. purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential,
CFI RULING: Refused to probate Felicidad’s will. The trial judge because anyway the relatives may oppose, the answer is that their
refused to credit the petitioner's evidence for several reasons, the most opposition will be at a distinct disadvantage, and they have the
important of which were these: (a) if according to his evidence, the right and privilege to comply with the will, if genuine, a right which
decedent wanted to keep her will a secret, so that her husband would they should not be denied by withholding inspection thereof from
not know it, it is strange she executed it in the presence of Felina them. All of which can only mean: the courts will not distribute the
Esguerra, knowing as she did that witnesses were unnecessary; (b) in property of the deceased in accordance with his holographic will,
the absence of a showing that Felina was a confidant of the decedent it unless they are shown his handwriting and signature. Taking all
is hard to believe that the latter would have allowed the former to see the above circumstances together, we reach the conclusion that
and read the will several times; (c) it is improbable that the decedent the execution and the contents of a lost or destroyed holographic
would have permitted Primitivo Reyes, Rosario Gan Jimenez and will may not be proved by the bare testimony of witnesses who
Socorro Olarte to read her will, when she precisely wanted its contents have seen and/or read such will.
to remain a secret during her lifetime; (d) it is also improbable that her
purpose being to conceal the will from her husband she would carry it How can the oppositor prove that such document was not in the
around, even to the hospital, in her purse which could for one reason or testator's handwriting? His witnesses who know testator's handwriting
another be opened by her husband; (e) if it is true that the husband have not examined it. His experts can not testify, because there is no
demanded the purse from Felina in the U.S.T. Hospital and that the will way to compare the alleged testament with other documents admittedly,
was there, it is hard to believe that he returned it without destroying the or proven to be, in the testator's hand. The oppositor will, therefore, be
will, the theory of the petitioner being precisely that the will was caught between the upper millstone of his lack of knowledge of the will
executed behind his back for fear he will destroy it. In the face of these or the form thereof, and the nether millstone of his inability to prove its
improbabilities, the trial judge had to accept the oppositor's evidence falsity. Again the proponent's witnesses may be honest and truthful; but
that Felicidad did not and could not have executed such holographic they may have been shown a faked document, and having no interest
will. to check the authenticity thereof have taken no pains to examine and
compare. Or they may be authenticity thereof have taken no pains to
ISSUE: Whether Felicidad’s holographic will may be probated upon the examine and compare. Or they may be perjurers boldly testifying, in the
testimony of witnesses who have allegedly seen it and who declare that knowledge that none could convict them of perjury, because no one
it was in the handwriting of the testator? could prove that they have not "been shown" a document which they
believed was in the handwriting of the deceased. Of course, the
RULING: NO, Felicidad’s holographic will may be probated upon competency of such perjured witnesses to testify as to the handwriting
the testimony of witnesses who have allegedly seen it and who could be tested by exhibiting to them other writings sufficiently similar to
declare that it was in the handwriting of the testator. Obviously, those written by the deceased; but what witness or lawyer would not
when the will itself is not submitted, these means of opposition, foresee such a move and prepare for it? His knowledge of the
and of assessing the evidence are not available. And then the only handwriting established, the witness (or witnesses) could simply stick to
guaranty of authenticity— the testator's handwriting — has his statement: he has seen and read a document which he believed
disappeared. Undoubtedly, the intention of the law is to give the was in the deceased's handwriting. And the court and the oppositor
would practically be at the mercy of such witness (or witnesses) not  
only as to the execution, but also as to the contents of the will. Does the 5. IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
law permit such a situation? This must be so, because the Civil Code RICARDO B. BONILLA, deceased, MARCELA RODELAS, petitioner-
requires it to be protocoled and presented to the judge, (Art. 689) who appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
shall subscribe it and require its identity to be established by the three LORENZO SUMULONG, intervenor. [G.R. No. L-58509. December 7,
witnesses who depose that they have no reasonable doubt that the will 1982.] ->
was written by the testator (Art. 691). And if the judge considers that the
identity of the will has been proven he shall order that it be filed (Art. FACTS: On January 11, 1977, petitioner Marcela Rodelad filed a
693). All these, imply presentation of the will itself. Art. 692 bears the petition with the Court of First Instance of Rizal for the probate of the
same implication, to a greater degree. It requires that the surviving holographic will of Ricardo B. Bonilla and the issuance of letters
spouse and the legitimate ascendants and descendants be summoned testamentary in her favor. This was opposed by the appellees Amparo
so that they may make "any statement they may desire to submit with Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and
respect to the authenticity of the will." As it is universally admitted that Ephraim Bonilla on the ground that the alleged photostatic copy of the
the holographic will is usually done by the testator and by himself alone, will which was presented for probate, cannot stand in lieu of the lost
to prevent others from knowing either its execution or its contents, the original, for the law regards the document itself as the material proof of
above article 692 could not have the idea of simply permitting such the authenticity of the said will, citing the case of Gan vs. Yap, 104 Phil.
relatives to state whether they know of the will, but whether in the face 509, 522.
of the document itself they think the testator wrote it. Obviously, this
they can’t do unless the will itself is presented to the Court and to them. CFI RULING: Dismissed the petition for the probate of the will of
Ricardo B. Bonilla.
Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y Ripert, ISSUE: Whether a holographic will which was lost or can not be found
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page can be proved by means of a photostatic copy?
555).
RULING: YES, a holographic will which was lost or can not be
found can be proved by means of a photostatic copy, since the
authenticity of the handwriting of the deceased can he determined
by the probate court, as comparison can be made with the
  standard writings of the testator.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is

  the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least
one identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three identifying
witnesses are required. However, if the holographic will has been lost or
destroyed and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between sample PETITIONER’S CONTENTION: Federico contends that first, that he
handwritten statements of the testator and the handwritten will. But, a was not bound to produce more than one witness because the will's
photostatic copy or xerox copy of the holographic will may be allowed authenticity was not questioned; and second, that Article 811 does not
because comparison can be made with the standard writings of the mandatorily require the production of three witnesses to identify the
testator. In the case of Gan vs. Yap, 104 Phil., in the Footnote of its handwriting and signature of a holographic will, even if its authenticity
decision, it says that "Perhaps it may be proved by a photographic or should be denied by the adverse party.
photostatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the ISSUE: Whether Fortunata’s will should be allowed even if only one
deceased may be exhibited and tested before the probate court." witness was presented?
Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the RULING: YES, Fortunata’s will should be allowed even if only one
handwriting of the deceased can be determined by the probate court. witness was presented. Since the authenticity of the will was not
contested, he was not required to produce more than one witness;
but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present
  Civil Code can not be interpreted as to require the compulsory
6. FEDERICO AZAOLA, petitioner-appellant , vs. CESARIO presentation of three witnesses to identify the handwriting of the
SINGSON, oppositor-appellee. [G.R. No. L-14003. August 5, 1960.] -> testator, under penalty of having the probate denied. Since no
witness may have been present at the execution of a holographic
FACTS: On September 9, 1957, Fortunata S. Vda. de Yance died at 13 will, none being required by law (Art. 810, new Civil Code), it
Luskot, Quezon City. Petitioner Francisco Azaola, presented Fotunata’s becomes obvious that the existence of witnesses possessing the
holographic will for probate. Maria Milagros Azaola was made the sole requisite qualifications is a matter beyond the control of the
heir as against the nephew of the Fortunate, respondent Cesario proponent. For it is not merely a question of finding and
Singson. The latter opposed the probate of the will on the grounds that producing any three witnesses; they must be witnesses "who
(1) the execution of the will was procured by undue and improper know the handwriting and signature of the testator" and who can
pressure and influence on the part of Federico and Maria, and (2) that declare (truthfully, of course, even if the law does not so express)
Fortunata did not seriously intend the instrument to be her last will, and "that the will and the signature are in the handwriting of the
that the same was actually written either on the 5th or 6th day of August testator". There may be no available witness acquainted with the
1957 and not on November 20, 1956 as appears on the will. testator's hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with the rule of
PROBATE COURT RULING: Denied the probate of Fortunata’s will on paragraph 1 of Article 811 may thus become an impossibility. That
the ground that under Article 811 of the Civil Code, the proponent must is evidently the reason why the second paragraph of Article 811
present three witnesses who could declare that the will and the prescribes that — "in the absence of any competent witness
signature are in the writing of the testatrix, the probate being contested; referred to in the preceding paragraph, and if the court deems it
and because the lone witness presented by the proponent "did not necessary, expert testimony may be resorted to.” As can be seen,
prove sufficiently that the body of the will was written in the handwriting the law foresees the possibility that no qualified witness may be
of the testatrix." found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will), and
provides for resort to expert evidence to supply the deficiency. It  
may be true that the rule of this article (requiring that three 7. EUGENIA RAMONAL CODOY, and MANUEL RAMONAL,
witnesses be presented if the will is contested and only one if no petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO,
contest is had) was derived from the rule established for ordinary and EUFEMIA PATIGAS, respondents. [G.R. No. 123486. August 12,
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; 1999.] ->
Tolentino vs. Francisco, 57 Phil. 742). But it can not be ignored
that the requirement can be considered mandatory only in the FACTS: On April 6, 1990, respondents Evangeline Calugay, Josephine
case of ordinary testaments, precisely because the presence of at Salcedo and Eufemia Patigas, devisees and legatees of the
least three witnesses at the execution of ordinary wills is made by holographic will of the deceased Matilde Seño Vda. de Ramonal, filed
law essential to their validity (Art. 805). Where the will is with the Regional Trial Court, Misamis Oriental, Branch 18, a petition for
holographic no witness need be present (Art. 10), and the rule probate of the holographic will of Matilde, who died on January 16,
requiring production of three witnesses must be deemed merely 1990. In the petition, Calugay, Salcedo and Patigas claimed that
permissive if absurd results are to be avoided. Matilde was of sound and disposing mind when she executed the will
on August 30, 1978, and that there was no fraud, undue influence, and
Again, under Article 811, the resort to expert evidence is conditioned by duress employed in the person of Matilde, and the will was written
the words "if the Court deem it necessary", which reveal that what the voluntarily. The assessed value of the decedent's property, including all
law deems essential is that the Court should be convinced of the will's real and personal property was about P400,000.00, at the time of her
authenticity. Where the prescribed number of witnesses is produced death. The holographic will which was written in Visayan, is translated
and the court is convinced by their testimony that the will is genuine, it in English.
may consider it unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of those produced is On June 28, 1990, petitioners Eugenia Ramonal Codoy and Manuel
convincing, the Court may still, and in fact it should, resort to Ramonal filed an opposition to the petition for probate, alleging that the
handwriting experts. The duty of the court, in fine, is to exhaust all holographic will was a forgery and that the same is even illegible. This
available lines of inquiry, for the state is as much interested as the gives an impression that a "third hand" of an interested party other than
proponent that the true intention of the testator be carried into effect. the "true hand" of Matilde Seño Vda. de Ramonal executed the
holographic will.
Article 811 of the Civil Code of the Philippines is to the following
effect: "ART. 811. In the probate of a holographic will, it shall be Augusto Neri, Clerk of Court, Court of First Instance of Misamis
necessary that at least one witness who knows the handwriting and Oriental, where the special proceedings for the probate of the
signature of the testator explicitly declare that the will and the signature holographic will of the deceased was filed. He produced and identified
are in the handwriting of the testator. If the will is contested, at least the records of the case. The documents presented bear the signature
three of such witnesses shall be required. In the absence of any of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of
competent witness referred to in the preceding paragraph, and if the laying the basis for comparison of the handwriting of the testatrix, with
court deems it necessary, expert testimony may be resorted to. (691a)" the writing treated or admitted as genuine by the party against whom
the evidence is offered.
 
Generosa Senon, election registrar of Cagayan de Oro, was presented
to produce and identify the voter's affidavit of the decedent. However,
the voters' affidavit was not produced for the same was already latter. That after a long period of time she became familiar with the
destroyed and no longer available. signature of the deceased. She testified that the signature appearing in
the holographic will is the true and genuine signature of Matilde Seño
Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal.
Vda. de Ramonal was her aunt, and that after the death of Matilde's
husband, the latter lived with her in her parent's house for eleven (11) PETITIONER’S CONTENTION: Petitioners argued that the repeated
years, from 1958 to 1969. During those eleven (11) years of close dates incorporated or appearing on the will after every disposition is out
association with the deceased, she acquired familiarity with her of the ordinary. If the deceased was the one who executed the will, and
signature and handwriting as she used to accompany her (deceased was not forced, the dates and the signature should appear at the
Matilde Seño Vda. de Ramonal) in collecting rentals from her various bottom after the dispositions, as regularly done and not after every
tenants of commercial buildings, and the deceased always issued disposition. And assuming that the holographic will is in the handwriting
receipts. In addition to this, she (witness Matilde Binanay) assisted the of the deceased, it was procured by undue and improper pressure and
deceased in posting the records of the accounts, and carried personal influence on the part of the bene ciaries, or through fraud and trickery.
letters of the deceased to her creditors.
RESPONDENT’S CONTENTION: Respondents presented six (6)
Matilde Ramonal Binanay further testified that at the time of the death witnesses and various documentary evidence.
of Matilde Vda. de Ramonal, she left a holographic will dated August
30, 1978, which was personally and entirely written, dated and signed, ISSUE: Whether Matilde’s will should be allowed?
by the deceased and that all the dispositions therein, the dates, and the
signatures in said will, were that of the deceased. RULING: NO, Matilde’s will should not be allowed. The Court
cannot eliminate the possibility of a false document being
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal adjudged as the will of the testator, which is why if the
of Cagayan de Oro, he was a practicing lawyer, and handled all the holographic will is contested, that law requires three witnesses to
pleadings and documents signed by the deceased in connection with declare that the will was in the handwriting of the deceased. Based
the intestate proceedings of her late husband, as a result of which he is on the language used, that Article 811 of the Civil Code is
familiar with the handwriting of the latter. He testified that the signature mandatory. The word "shall" connotes a mandatory order. We
appearing in the holographic will was similar to that of the deceased, have ruled that "shall" in a statute commonly denotes an
Matilde Seño Vda. de Ramonal, but he can not be sure. imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word "shall," when
The fifth witness presented was Mrs. Teresita Vedad, an employee of used in a statute is mandatory.” Since the will was found not in the
the Department of Environment and Natural Resources, Region 10. personal belongings of the deceased but with one of the
She testified that she processed the application of the deceased for respondents, who kept it even before the death of the deceased. In
pasture permit and was familiar with the signature of the deceased, the testimony of Ms. Binanay, she revealed that the will was in her
since the deceased signed documents in her presence, when the latter possession as early as 1985, or five years before the death of the
was applying for pasture permit. deceased. There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with other
Finally, Evangeline Calugay, one of the respondents, testified that she documents signed and executed by her during her lifetime. The
had lived with the deceased since birth, and was in fact adopted by the only chance at comparison was during the cross-examination of
Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to  
compare the documents which contained the signature of the 8. PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA
deceased with that of the holographic will and she is not a REBACA POTOT, ET AL., and THE HONORABLE COURT OF
handwriting expert. Even the former lawyer of the deceased APPEALS, respondents. [G.R. No. L-20234. December 23, 1964.] ->
expressed doubts as to the authenticity of the signature in the
holographic will. FACTS: On May 9, 1939, the spouses, Bernabe de la Cerna and
Gervasia Rebaca, executed a joint last will and testament in the local
A visual examination of the holographic will convince us that the strokes dialect whereby they willed that the two parcels of land as well as its
are different when compared with other documents written by the respective improvements which they acquired during their marriage
testator. The signature of the testator in some of the disposition is not shall be given to their niece, respondent Manuela Rebaca Potot. It is
readable. There were uneven strokes, retracing and erasures on the stated there that while each of the testator is yet living, he or she will
will.Comparing the signature in the holographic will dated August 30, continue to enjoy the fruits of the two lands aforementioned. Later on,
1978, 33 and the signatures in several documents such as the Bernabe de la Cerna died on August 30, 1939, and the aforesaid will
application letter for pasture permit dated December 30, 1980, 34 and a was submitted to probate by said Gervasia and Manuela before the
letter dated June 16, 1978, 35 the strokes are different. In the letters, Court of First Instance of Cebu, this was allowed for probate by the
there are continuous flows of the strokes, evidencing that there is no latter court. Upon the death of Gervasia Rebaca on October 14, 1952,
hesitation in writing unlike that of the holographic will. We, therefore, another petition for the probate of the same will insofar as Gervasia
cannot be certain that the holographic will was in the handwriting by the was concerned was filed on November 6, 1952, on the same Court of
deceased. Laws are enacted to achieve a goal intended and to guide First Instance of Cebu, but for failure of Manuela R. Potot, and her
against an evil or mischief that aims to prevent. In the case at bar, the attorney, Manuel Potot to appear, for the hearing of said petition, the
goal to achieve is to give effect to the wishes of the deceased and the case was dismissed on March 30, 1954 (Spec. Proc. No. 1016-R, In the
evil to be prevented is the possibility that unscrupulous individuals who matter of the Probate of the Will of Gervasia Rebaca).”
for their benefit will employ means to defeat the wishes of the testator.
CFI RULING: Ordered the petition heard and declared the testament
null and void, for being executed contrary to the prohibition of joint wills
in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code
of the Philippines);
CA RULING: Reversed the CFI ruling, on the ground that the decree of
probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of
Appeals declared that ". . . It is true the law (Art. 669, old Civil Code;
Art. 818, new Civil Code) prohibits the making of a will jointly by two or
more persons either for their reciprocal benefit or for the benefit of a
third person. However, this form of will has long been sanctioned by
use, and the same has continued to be used; and when, as in the
present case, one such joint last will and testament has been admitted
to probate by final order of a Court of competent jurisdiction, there
seems to be no alternative except to give effect to the provisions law, that should have been corrected by appeal, but which did not affect
thereof that are not contrary to law, as was done in the case of the jurisdiction of the probate court, nor the conclusive effect of its final
Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave decision, however erroneous. A final judgment rendered on a petition
effect to the provisions of the joint will therein mentioned, saying for the probate of a will is binding upon the whole world (Manalo vs.
'assuming that the joint will in question is valid'." Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156); and public
policy and sound practice demand that at the risk of occasional errors,
ISSUE: Whether the joint will shall be allowed? judgment of courts should become final at some definite date fixed by
law. Interest rei publicae ut nis sit litium (Dy Cay vs. Cross eld, 38 Phil.
RULING: NO, it shall not be allowed as to the participation of the 521, and other cases cited in 2 Moran, Comments on the Rules of
deceased Gervasia Rebaca in the properties in question. The Court 1963 Ed., p. 322).
probate decree in 1939 could only affect the share of the deceased
husband, Bernabe de la Cerna. It could not include the disposition Petitioners, as heirs and successors of the late Bernabe de la Cerna,
of the share of the wife, Gervasia Rebaca, who was then still alive, are concluded by the 1939 decree admitting his will to probate. The
and over whose interest in the conjugal properties the probate contention that being void the will cannot be validated, overlooks that
court acquired no jurisdiction, precisely because her estate could the ultimate decision on whether an act is valid or void rests with the
not then be in issue. Be it remembered that prior to the Civil Code, courts, and here they have spoken with finality when the will was
a will could not be probated during the testator's lifetime. It probated in 1939. On this count, the dismissal of their action for
follows that the validity of the joint will, in so far as the estate of partition was correct.
the wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will
of each testator. Therefore, the undivided interest of Gervasia
Rebaca should pass upon her death to her heirs intestate, and not
exclusively to the testamentary heir, unless some other valid will
in her favor is shown to exist, or unless she be the only heir
intestate of said Gervasia. It is unnecessary to emphasize that the
fact that joint wills should be in common usage could not make
them valid when our Civil Codes consistently invalidated them,
because laws are only repealed by other subsequent laws, and no
usage to the contrary may prevail against their observance (Art. 5,
Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
The appealed decision correctly held that the final decree of probate,
entered in 1939 by the Court of First Instance of Cebu (when the
testator, Bernabe de la Cerna died), has conclusive effect as to his last
will and testament, despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in favor of the joint
testators, reciprocally, or in favor of a third party (Art. 669, old Civil
Code). The error thus committed by the probate court was an error of
  bequeathed all properties and estate, real or personal, already
9. RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE acquired, or to be acquired, in her (testatrix's) name, after satisfying the
COURT OF APPEALS and LUTGARDA SANTIAGO, expenses, debts and legacies as aforementioned.
respondents. [G.R. No. L-37453. May 25, 1979] ->
The petition was opposed by Rizalina, assailing the document
FACTS: It appears that on June 24, 1961, herein private respondent purporting to be the will of Isabel on the following grounds:
Lutgarda Santiago filed a petition with the Court of First Instance of
Rizal docketed as Special Proceedings No. 3617, for the probate of a 1. that the same is not genuine; and in the alternative
will alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner Rizalina Gabriel Gonzales as the principal 2. that the same was not executed and attested as required by
beneficiary and executrix. There is no dispute in the records that the law;
late Isabel Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of residence, on 3. that, at the time of the alleged execution of the purported will,
June 7, 1961 at the age of eighty-five (85), having been born in 1876. It the decedent lacked testamentary capacity due to old age and
is likewise not controverted that Lutgarda and Rizalina are nieces of sickness; and in the second alternative 
Isabel, and that Lutgarda, with her husband and children, lived with 4. that the purported will was procured through undue and
Isabel at the latter's residence prior and up to the time of her death. improper pressure and influence on the part of the principal
beneficiary, and/or of some other person for her benefit.
The will submitted for probate, Exhibit "F", which is typewritten and in
Tagalog, appears to have been executed in Manila on the 15th day of
April, 1961, or barely two (2) months prior to the death of Isabel CFI RULING: Disallowed the will.
Gabriel. It consists of five (5) pages, including the pages whereon the
attestation clause and the acknowledgment of the notary public were CA RULING: Upon consideration of the evidence, reversed the trial
written. The signatures of Isabel appear at the end of the will on page court's decision and allowed the probate of the will. It held that the will
four and at the left margin of all the pages. The attestation clause is in question was signed and executed by the deceased Isabel Gabriel
found on page four, at the bottom thereof, under the heading on April 15, 1961 in the presence of the three attesting witnesses,
"Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and
Gimpaya and Maria R. Gimpaya, and opposite the same, under the witnessing the document in the presence of the deceased and of each
heading "Tirahan", are their respective places of residence, 961 other as required by law, hence allowed probate.
Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas,
ISSUE: Whether the will should be allowed?
Rizal, for the two Gimpayas. Their signatures also appear on the left
margin of all the other pages. The will is paged by typewritten words as
RULING: YES, the will should be allowed for probate. It complied
follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang
with the qualifications under Article 820 of the Civil Code. Most
Dahon" and underneath "(Page Two)", etc., appearing at the top of
importantly, the instrumental witnesses must be competent and
each page. It also contains: The herein private respondent Lutgarda
their testimonies must be credible even if evidence was not first
Santiago, who was described in the will by the testatrix as "aking mahal
presented to establish that before the court allows the probate of
na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng
the will they have attested. We rule that the respondent Court's
isang tunay na anak" and named as universal heir and executor, were
factual ndings upon its summation and evaluation of the evidence
on record is unassailable that: "From the welter of evidence reliable, for a person is presumed to be such unless the contrary is
presented, we are convinced that the will in question was established otherwise. In other words, the instrumental witnesses must
executed on April 15, 1961 in the presence of Matilde Orobia, be competent and their testimonies must be credible before the court
Celso Gimpaya and Maria Gimpaya signing and witnessing the allows the probate of the will they have attested. We, therefore, reject
same in the will on a table with Isabel Gabriel, Celso Gimpaya and Rizalina's position that it was fatal for respondent not to have
Maria Gimpaya sitting around the table. Atty. Paraiso, after introduced prior and independent proof of the fact that the witnesses
finishing the notarial act, then delivered the original to Isabel were "credible witnesses", that is, that they have a good standing in the
Gabriel and retained the other copies for his file and notarial community and reputed to be trustworthy and reliable.
register. A few days following the signing of the will, Isabel
Gabriel, Celso Gimpaya and another photographer arrived at the  
office of Atty. Paraiso and told the lawyer that she wanted another
picture taken because the first picture did not turn out good. The
lawyer told her that this cannot be done because the will was  
already signed but Isabel Gabriel insisted that a picture be taken, 10. AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P.
so a simulated signing was performed during which incident VILLASOR, Presiding Judge of Branch I, Court of First Instance of
Matilde Orobia was not present.” Rizalina's exacerbation centers Cebu, and MANUEL B. LUGAY, respondents. [G.R. No. L-32213.
on the supposed incredibility of the testimonies of the witnesses November 26, 1973.] ->
for the proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar, the FACTS: The last will and testament of the late Valente Z. Cruz was
three instrumental witnesses who constitute the best evidence of presented for probate by respondent and purported executor Manuel
the will-making have testified in favor of the probate of the will. So Lugay. The probate was opposed by petitioner Agapita Cruz, who is the
has the lawyer who prepared it, one learned in the law and long in spouse of Valente. Agapita alleged that the will was executed through
the practice thereof, who thereafter notarized it. All of them are fraud, deceit, misrepresentation and undue in uence; that the said
disinterested witnesses who stand to receive no benefit from the instrument was executed without the testator having been fully informed
testament. The signatures of the witnesses and the testatrix have of the contents thereof, particularly as to what properties he was
been identified on the will and there is no claim whatsoever and by disposing; and that the supposed last will and testament was not
anyone, much less the petitioner, that they were not genuine. In executed in accordance with law.
the last and final analysis, the herein conflict is factual and we go
back to the rule that the Supreme Court cannot review and revise Of the three instrumental witnesses thereto, namely, Deogracias T.
the findings of facts of the respondent Court of Appeals. Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr., one
of them, the last named, is at the same time the Notary Public before
In fine, We state the rule that the instrumental witnesses in order to be whom the will was supposed to have been acknowledged. Reduced to
competent must be shown to have the qualifications under Article 820 simpler terms, the question was attested and subscribed by at least
of the Civil Code and none of the disqualifications under Article 821 and three credible witnesses in the presence of the testator and of each
for their testimony to be credible, that is worthy of belief and entitled to other, considering that the three attesting witnesses must appear before
credence, it is not mandatory that evidence be first established on the notary public to acknowledge the same.
record that the witnesses have a good standing in the community or
that they are honest and upright or reputed to be trustworthy and PROBATE COURT: Allowed the will for probate.
PETITIONER’S CONTENTION: As the third witness is the notary public before the notary public for that purpose. In the circumstances,
himself, petitioner argues that the result is that only two witnesses the law would not be duly observed.
appeared before the notary public to acknowledge the will.
The American authorities do not serve the purpose of the law in this
RESPONDENT’S CONTENTION: Maintains that there is substantial jurisdiction or are not decisive of the issue herein, because the notaries
compliance with the legal requirement of having at least three attesting public and witnesses referred to in the aforecited cases merely acted as
witnesses even if the notary public acted as one of them, bolstering up instrumental, subscribing or attesting witnesses, and not as
his stand with 57 American Jurisprudence, p. 227 which, insofar as acknowledging witnesses. Here the notary public acted not only as
pertinent, reads as follows: "It is said that there are practical reasons for attesting witness but also as acknowledging witness, a situation not
upholding a will as against the purely technical reason that one of the envisaged by Article 805 of the Civil Code which reads: "ART. 806.
witnesses required by law signed as certifying to an acknowledgment of Every will must be acknowledged before a notary public by the testator
the testator's signature under oath rather than as attesting the and the witnesses. The notary public shall not be required to retain a
execution of the instrument." copy of the will or le another with the office of the Clerk of
Court." [Emphasis supplied]
ISSUE: Whether Valente’s will should be allowed?
To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
RULING: NO, Valente’s will should be disallowed. To allow the 258, 262; Castro v Castro, 100 Phil. 239, 247); to own as genuine, to
notary public to act as third witness, or one of the attesting and assent, to admit; and "before" means in front or preceding in space or
acknowledging witnesses, would have the effect of having only ahead of. (The New Webster Encyclopedic Dictionary of the English
two attesting witnesses to the will which would be in Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
contravention of the provisions of Article 805 requiring at least English Language, p. 252; Webster's New International Dictionary 2d.
three credible witnesses to act as such and of Article 806 which p. 245.) Consequently, if the third witness were the notary public
requires that the testator and the required number of witnesses himself, he would have to avow, assent, or admit his having signed the
must appear before the notary public to acknowledge the will. The will in front of himself. This cannot be done because he cannot split his
notary public before whom the will was acknowledged cannot be personality into two so that one will appear before the other to
considered as the third instrumental witness since he cannot acknowledge his participation in the making of the will. To permit such a
acknowledge before himself his having signed the situation to obtain would be sanctioning a sheer absurdity.
will. Furthermore, the function of a notary public is, among others,
to guard against any illegal or immoral arrangements. Balinon v.
De Leon, 50 O. G. 583.) That function would be defeated if the
notary public were one of the attesting or instrumental witnesses.
For them he would be interested in sustaining the validity of the
will as it directly involves himself and the validity of his own act. It
would place him in an inconsistent position and the very purpose
of the acknowledgment, which is to minimize fraud (Report of the
Code Commission p. 106-107), would be thwarted. The result
would be, as has been said, that only two witnesses appeared
  as well as the opposition thereto filed by Juana Gatmaitan is dismissed,
11. In re estate of the deceased Leonarda Macam y Capili. without prejudice to whatever right the latter may have in an appropriate
NICOLASA MACAM, petitioner-appellant , vs. JUANA proceeding before the committee on claims and appraisal, in
GATMAITAN,oppositor-appellant. [G.R. No. 40445. August 17, 1934.] accordance with law. So ordered."
FACTS: On March 27, 1933, petitioner Nicolasa Macam filed in the PETITIONER’S CONTENTION: Nicolasa Macam contents that the
Court of First Instance of Bulacan a petition for the probate of the will lower court erred in: holding that the parties have abandoned their
dated July 12, 1932, and of the codicil thereof dated February 17, 1933, respective claims during the proceedings for the probate of the will;
executed by Leonarda Macam who died on March 18, 1933, in the declaring that it was already too late to raise the question as to the legal
municipality of Calumpit, of said Province of Bulacan, and for Nicola’s efficacy of the codicil executed by the deceased; and in dismissing the
appointment as executrix without bond. petition for the probate of the codicil before any of the parties had
presented evidence pertinent to the matter.
When the petition was called for hearing on April 24, 1933, in the
absence of the judge, the clerk of the Court of First Instance of RESPONDENT’S CONTENTION: Juana Gatmaitan contends that the
Bulacan, upon instructions of said judge to proceed to take the lower court erred in: holding that in order for Juana Gatmaitan to
evidence in the absence of any opposition, took the evidence relative to preserve her rights, so far as to oppose the probate of the codicil, it was
the probate of the will, no opposition to the same having been filed. her duty to oppose to the probate of the will; and, having opposed the
Inasmuch as Juana Gatmaitan filed opposition to the probate of the probate only of the codicil, she could no longer avail herself of the
codicil, said clerk deemed himself unauthorized to take the evidence document in her favor, so as to affect the testamentary dispositions of
relative thereto and refrained from so doing. the deceased Leonarda Macam; also in dismissing the opposition of
Juana Gatmaitan to the probate of the alleged codicil.
The will and the evidence for its probate having been submitted to the
court the vacation Judge Hon. M. Rosauro, on April 28, 1933, entered ISSUES: (1) Whether an already probated will bars the subsequent
an order allowing said will and appointing the petitioner Nicolasa presentation for probate of the codicil?
Macam as executrix.
(2) Whether the non-opposition to the probate of the will constitutes
On July 6, 1933, after notice to the parties, the codicil was called for abandonment of right and now bars from opposing the codicil?
hearing, opposition having been filed by Juana Gatmaitan, one of the
legatees instituted in the will which had already been allowed by final RULINGS: NO. The fact that a will has been probated and the order
and executory judgment. allowing the same has become final and executory, is not a bar to
the presentation and probate of a codicil, although its existence
CFI RULING (dispositive part): "In view of the neglect or was known at the time of the probate of the will, provided it
abandonment by the interested parties of their respective claims during complies with all the necessary formalities for executing a will
the proceedings for the probate of the will, and it appearing that the required by section 614 of the Code of Civil Procedure, as
order allowing the will has already become final and executory, the amended by section 1 of Act No. 1934; (2) that the failure of the
court is of the opinion that it is now too late to consider the so- called oppositor to the probate of a codicil to file opposition to the
codicil as well as the instrument from which Juana Gatmaitan derives probate of the will, having knowledge of such proceedings, does
her alleged right. Wherefore, the petition for the probate of the codicil not constitute an abandonment of a right, nor does it deprive her
of the right to oppose to probate of said codicil. Moreover, it is not revocation is made with the formalities required for making it, in
necessary that the will and the codicil be probated together, as the accordance with the provisions of article 738 of the same Code.
codicil may be concealed by an interested party and it may not be
discovered until after the will has already been allowed; and they The appeal taken by the petitioner Nicolasa Macam is, therefore, well
may be presented and probated one after the other (40 Cyc., 1228), founded and the court a quo erred in flatly denying her petition for the
since the purpose of the probate proceedings is merely to probate of the codicil on the erroneous ground that said codicil should
determine whether or not the will and the codicil meet all the have been presented at the same time as the will.
statutory requirements for their extrinsic validity, leaving the
validity of their provisions for further consideration. Therefore, the With respect to the opposition of the oppositor-appellant Juana
court a quo, erred in dismissing the opposition filed by Gatmaitan, the fact that she failed to file opposition to the probate of the
the oppositor-appellant Juana Gatmaitan to the probate of the will does not prevent her from filing opposition to the probate of the
codicil of the will of the deceased Leonarda Macam. codicil thereof, inasmuch as the will may satisfy all the external
requisites necessary for its validity, but the codicil may, at the time of its
Section 625 of the Code of Civil Procedure provides as follows: "SEC. execution, not be in conformity therewith. If the testator had
625. Allowance necessary, and conclusive as to execution. — No will testamentary capacity at the time of the execution of the will, and the
shall pass either the real or personal estate, unless it is proved and will was executed in accordance with all the statutory requirements,
allowed in the Court of First Instance, or by appeal to the Supreme opposition to its probate would not lie. On the contrary, if at the time of
Court; and the allowance by the court of a will of real and personal the execution of the codicil the testator lacked some of the subjective
estate shall be conclusive as to its due execution." requisites legally capacitating him to execute the same, or all the
statutory requirements were not complied with in the execution thereof,
Interpreting the above legal provisions as regards the scope of the opposition to its probate would lie.
allowance of a will, this court, in numerous decisions, has laid down the
doctrine that the probate of a will is conclusive as to its due execution
and as to the testamentary capacity of the testator, but not as to the
validity of its provisions, and in probate proceedings the courts are
without jurisdiction to determine questions concerning the validity of the
provisions of the will.
"A codicil is a written instrument wherein one declares his last will, in
order to take from or add something to the will, or clarify the provisions
thereof." (Spanish Cyclopaedia of Law, vol. 5, page 918.)
"A codicil has been defined as some addition to or qualification of one's

last will and testament." (28 R. C. L., 197.)
The exercise of the right to make a will, as a voluntary act, implies the
right to revoke, and article 737 of the Civil Code expressly provides that
wills are essentially revocable, provided that the partial or total
   
12. In the matter of the estate of Jesus de Leon. IGNACIA DIAZ, 13. Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO,
petitioner-appellant, vs. ANA DE LEON, opponent-appellee. [G.R. No. petitioner- appellant, vs. CORNELIO MAMUYAC, AMBROSIO
L-17714. May 31, 1922.] -> LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC,
opponents-appellees. [G.R. No. 26317. January 29, 1927.] ->
FACTS: The purportedly last will and testament of Jesus de Leon was
allegedly revoked by the latter. Petitioner Ignacia Diaz denies FACTS: The deceased Miguel Mamuyac wrote three wills: 27 July
such revocation, while respondent Ana De Leon affirms the same by 1918; 16 April 1919 and 30 December 1920. Mamuyac died on Jan 24
alleging that Jesus revoked his will by destroying it, and that Jesus 1922 in La Union. Mamuyac’s 1918 will was presented by petitioner
executed another will expressly revoking the former. Francisco Gago for probate with the Court of First Instance of the
Province of La Union. The probation of the same was opposed by
ISSUE: Whether the will executed by Jesus was revoked by him? respondents Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon,
and Catalina Mamuyac (civil cause No. 1144, Province of La Union). To
RULING: YES, the will executed by Jesus was revoked by him. which, the CFI first denied the probate of the will, upon the ground that
Although the second will executed by Jesus is not clothed with all Mamuyac had on the 16th day of April, 1919, executed a new will and
the necessary requisites to constitute a sufficient revocation, testament.
according to Sec 623 of the Code of Civil Procedure, the
destruction of a will with animo revocandi constitutes, in itself, a On the 21st day of February, 1925, the probate of the April 16 1919 will
sufficient revocation. The intention of revoking the will is manifest was submitted. This was again opposed by Cornelio Mamuyac,
from the established fact that the testator was anxious to withdraw Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac, alleging
or change the provisions he had made in his first will. Thus, the (a) that the said will is a copy of the second will and testament executed
original will herein presented for probate having been destroyed by the said Miguel Mamuyac; (b) that the same had been cancelled and
with animo revocandi, cannot now be probated as the will and last revoked during the lifetime of Miguel Mamuyac and (c) that the said will
testament of Jesus de Leon. The testator Jesus De Leon shortly was not the last will and testament of the deceased Miguel Mamuyac.
after the execution of the first will in question, asked that the same
be returned to him. The instrument was returned to the testator CFI RULING: Denied the probate of the April 16 1919 will, upon the
who ordered his servant to tear the document. This was done in ground that the same had been cancelled and revoked in the year
his presence and before a nurse who testified to this effect. After 1920. "That Exhibit A is a mere carbon copy of its original which
some time, the testator, being asked by Dr. Cornelio Mapa about remained in the possession of the deceased testator Miguel Mamuyac,
the will, said that it had been destroyed. This fact is disclosed by who revoked it before his death as per testimony of witnesses Jose
the testator's own statement to the witnesses Canto and the Fenoy, who typed the will of the testator on April 16, 1919, and Carlos
Mother Superior of the Hospital where he was confined. Bejar, who saw on December 30, 1920, the original of Exhibit A (will of
1919) actually cancelled by the testator Miguel Mamuyac, who assured
  Carlos Bejar that inasmuch as he had sold him a house and the land
where the house was built, he had to cancel it the will of 1919),
executing thereby a new testament. Narcisa Gago in a way
corroborates the testimony of Jose Fenoy, admitting that the will
executed by the deceased (Miguel Mamuyac) in 1919 was found in the
possession of father Miguel Mamuyac. The opponents have instances in which wills are destroyed for the purpose of revoking them
successfully established the fact that father Miguel Mamuyac had there is no witness to the act of cancellation or destruction and all
executed in 1920 another will. The same Narcisa Gago, the sister of the evidence of its cancellation perishes with the testator. Copies of wills
deceased, who was living in the house with him, when cross-examined should be admitted by the courts with great caution. When it is proven,
by attorney for the opponents, testified that the original of Exhibit A however, by proper testimony that a will was executed in duplicate and
could not be found. For the foregoing consideration and for the reason each copy was executed with all the formalities and requirements of the
that the original of Exhibit A has been cancelled by the deceased father law, the duplicate may be admitted in evidence when it is made to
Miguel Mamuyac, the court disallows the probate of Exhibit A for the appear that the original has been lost and was not cancelled or
applicant." destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. 26063.)
PETITIONER’S CONTENTION: Francisco contends that the lower It may be stated that there is positive proof, not denied, which was
court committed an error in not finding from the evidence that the will in accepted by the lower court, that the will in question had been
question had been executed with all the formalities required by the law; cancelled in 1920. The law does not require any evidence of the
that the same had been revoked and cancelled in 1920 before his revocation or cancellation of a will to. be preserved. It therefore
death; that the said will was a mere carbon copy and that the becomes difficult at times to prove the revocation or cancellation of
oppositors were not estopped from alleging that fact. wills. The fact that such cancellation or revocation has taken place must
either remain unproved or be inferred from evidence showing that after
ISSUE: Whether Mamuyac’s 1919 will was validly cancelled by his due search the original will cannot be found. Where a will which cannot
1920 will? be found is shown to have been in the possession of the testator, when
last seen, the presumption is, in the absence of other competent
RULING: YES, Mamuyac’s 1919 will was validly cancelled by his evidence, that the same was cancelled or destroyed. The same
1920 will. In view of the fact that the original will of 1919 could not presumption arises where it is shown that the testator had ready access
be found after the death of the testator Miguel Mamuyac and in to the will and it cannot be found after his death. It will not be presumed
view of the positive proof that the same had been cancelled, we that such will has been destroyed by any other person without the
are forced to the conclusion that the conclusions of the lower knowledge or authority of the testator. The force of the presumption of
court are in accordance with the weight of the evidence. The law cancellation or revocation by the testator, while varying greatly, being
does not require any evidence of the revocation or cancellation of weak or strong according to the circumstances, is never conclusive, but
a will to be preserved. Where a will which cannot be found is may be overcome by proof that the will was not destroyed by the
shown to have been in the possession of the testator, when last testator with intent to revoke it. After a careful examination of the entire
seen, the presumption is, in the absence of other competent record, we are fully persuaded that the will presented for probate had
evidence, that the same was cancelled or destroyed. The same been cancelled by the testator in 1920.
presumption arises where it is shown that the testator had ready
access to the will and it cannot be found after his death.  
In a proceeding to probate a will the burden of proof is upon the

proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great majority of
14. In the matter of the estate of Rufina Arevalo. ARISTON characteristic already mentioned — separation of the two letters — he
BUSTAMANTE, administrator-appellant , vs. PETRONA AREVALO, tried to imitate said peculiarity in making the central signature.
ET AL., oppositors- appellees. [G.R. No. 47305. July 31, 1942.] ->
ISSUES: (1) Whether Rufina’s will (Exhibit C) should be disallowed?  
FACTS: The last will and testament of the deceased Rufina Arevalo
was presented for probate by petitioner Ariston Bustamante with the
Court of First Instance of Manila. The value of the estate is over (2) Whether the earlier will (Exhibit 6) is validly revoked by the
P50,000. The questioned document was prepared and signed in subsequent will (Exhibit C)?
duplicate. It consists of two pages and is dated October 2, 1937. It
appears to be signed by Rufina Arevalo and by three witnesses, RULINGS: This was remanded back to the lower court for further
Manuel M. Cruz, Remigio Colina and Angel Sanchez. The formal proceedings.
requisites of a will have been complied with.
(1) NO, Rufina’s will should be allowed. In the present case, a
An initial fact that arrests the attention is the formulation by respondents careful scrutiny of all the questioned and the standard signatures
Petrona Arevalo et al of the allegation of forgery even before seeing the has convinced us that they have been written by the same person
questioned document. Said charge of forgery was signed on April 22, because they show the same general type, quality and
1938, although Exhibit C, which had been in a sealed envelope, was characteristics, with natural variations. We are, therefore, inclined
not opened by order of the court till the next day, April 23, 1938. It is to give credence to the expert testimony to that effect presented
true that the opposition by the appellees was not actually filed in court by the appellant. Moreover, a forger who has to make two or more
till April 23, but it was signed by appellees' attorneys on April 22, was signatures usually sees to it that all the signatures are uniform for
subscribed and sworn to by Amando Clemente on April 22, and a copy fear that any difference might arouse suspicion. In this case,
thereof was sent by registered mail to Attorney Nicasio Yatco on April however, in some questioned signatures the letters "R" and "u"
22. Moreover, in the morning of April 23, appellees' attorneys, Messrs. are separated, but in others, they are united. Furthermore, it is to
Jose Belmonte and Vicente Delgado, announced their opposition to the be noted that the document in question was prepared and signed
will Exhibit C in open court, before said document was opened by order in duplicate, so that there are six signatures of Rufina Arevalo,
of the court on that day. instead of only three. It is reasonable to believe that a forger
would reduce the number of signatures to be forged so as to
CFI RULING: Denied the probate of the will and allowed an earlier will, lessen the danger of detection. In this case, Attorney Nicasio
Exhibit 6, whose authenticity was unquestioned. One of the principal Yatco, who supervised the execution of Exhibit C, must have
reasons of the court a quo for believing Exhibit C to be a forgery is that known that it was not necessary to make a signed duplicate of the
in the genuine signatures the terminal stroke of the capital "R" in will. Therefore, we find that the will of Rufina Arevalo, dated
"Rufina" is not joined with the letter "u," while in Exhibit 6 such ending is October 2, 1937 and marked Exhibit C, is genuine and should be
united with the letter "u" in the two marginal signatures, although in the allowed.
central signature appearing on page 2, the two letters are separated.
The probate court believes that this difference between the marginal (2) YES, the earlier will (Exhibit 6) is validly revoked by the
and the central signatures is due to the fact that the forger first used the subsequent will (Exhibit C). Though it might appear right that
check of "La Previsora" (Exhibit I) as the model in falsifying the Amando Clemente should receive something from the estate
marginal signatures, but having been shown another signature with the because he, together with Ariston Bustamante, has been raised by
the testatrix, and both are her relatives, nevertheless it would be As for the probate court's opinion that the forger must have used
venturesome for us to advance our own idea of a just distribution Exhibit I (a check issued by "La Previsora" to Rufina Arevalo) as a
of the property in the face of a different mode of disposition so model in falsifying the marginal signatures, it is highly improbable that
clearly expressed by the testatrix in the later will. As she had no said check was in the hands of Rufina Arevalo or of her attorney,
forcible heirs, she was absolutely free to give her estate to Nicasio Yatco, on or about October 2, 1937, when the document in
whomsoever she chose, subject of course to the payment of her question was signed. The check had been issued on June 30, 1936, or
debts. It would be a dangerous precedent to strain the over a year before, and it must have been returned by the bank
interpretation of a will in order to effect what the court believes to concerned to "La Previsora" in the ordinary course of business,
be an equitable division of the estate of a deceased person. The because it was produced by the Manager of "La Previsora." It should
only function of the courts in these cases is to carry out the likewise be observed that the signature on the first page of the
intention of the deceased as manifested in the will. Once that duplicate will (Exhibit C-3) does not have the supposed peculiarity of
intention has been determined through a careful reading of the will the standard signatures, that is, the separation between "R" and "u." If,
or wills, and provided the law on legitimes has not been violated, it as the lower court states, the forger upon being shown a model other
is beyond the pale of judicial cognizance to inquire into the than Exhibit I, imitated said characteristic separation in making the
fairness or unfairness of any devise or bequest. It might be said central or body signature on the original will Exhibit C, it is indeed
that it is hard to understand how, in a temporary anger at Amando strange that he should not do the same immediately thereafter on the
Clemente, the testatrix would entirely cut him off from the first page of the duplicate will but that he should, instead, repeat the
inheritance. We should not, however, sit in judgment upon her mistake he had made on the marginal signatures on the original will.
motives and sentiments, first because, as already stated, nothing
in the law restrained her from disposing of her property in any Finally, to conclude that a forgery has been committed, the evidence
manner she desired, and secondly, because there are no adequate should be forcefully persuasive. Before we are disposed to find that an
means of ascertaining the inward processes of her conscience. attorney-at-law has so debased himself as to aid and abet the forgery
She was the sole judge of her own attitude toward those who of a will, which would not only send him to jail for many years but would
expected her bounty. ruin his future, we must require proof sufficiently strong to prevail
against every fair and thoughtful hesitancy and doubt. And the
We believe the probate court has overlooked the well-established instrumental witnesses have testified that Rufina Arevalo signed the will
principle that in passing upon questioned documents, the test is the in their presence. It is hard to believe they would commit perjury as it
general character of the writing rather than any minute and precise has not been shown they had any interest in this case.
comparison of individual letters or lines. In People vs. Bustos (45 Phil.,
30), this Court held: "It is a first principle in writing that exact
coincidence between two signatures is absolute proof that one or the
other is a forgery. There must be some difference before authenticity
can be admitted; and the general rule is that authenticity reposes upon
a general characteristic resemblance, coupled with specific differences,
such as naturally result from the infinite variety of conditions controlling
the muscles of the writer at each separate effort in forming his  
signature." (Emphasis supplied.)
15. CRISTINA SAMSON, DELFINA NAVAL, and SOR The will executed by Simeona on February 13, 1915, and which was
CONSOLACION EUGENIO, petitioners-appellants, vs. MONICA the subject- matter of case No. 13386 of said court could not be
NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors- allowed, on the ground that it was not executed with the requisites and
appellants. [G.R. No. 11823. February 11, 1918.] -> formalities prescribed by law. Article 739 of the Civil Code provides that
a former will is by operation of law revoked by another valid subsequent
FACTS: Simeona Naval who died on September 18, 1915 wrote two will, if the testator does not state in the later will his desire that the
wills: February 13 1915 and October 31 1914. On September 20, 1915, former should subsist wholly or partly. In harmony with this provision of
attorney Perfecto Gabriel presented for probate with the CFI of Manila substantive law, we nd section 623 of the Code of Civil Procedure,
the Feb 1915 will of Simeona Naval. The case was recorded as No. which provides that no will shall be revoked, except by implication of
13386. Later on, it was denied on the ground that said document was law, otherwise than by some will, codicil, or other writing executed as
not duly executed by Simeona as her last will and testament, inasmuch provided in case of wills. So that it is very evident that the second will
as she did not sign it in the presence of three witnesses and the two presented, that is, that of October 31, 1914, was not and could not have
witnesses did not sign it in the presence of each other. Thereafter been revoked by the February 13 1915 will.
petitioners Cristina Samson, Delfina Naval and For Consolation
Eugenio, the nieces and legatees of Simeone filed in the same court for As to the annulment of the revocation clause: But admitting that the will
allowance her 1914 will, the case was registered under another said to have been executed by the deceased Simeona F. Naval on
number, which was No. 13579. The petition for allowance was opposed February 13, 1915, notwithstanding its inefficacy to transmit property for
by Monica Naval, Rosa Naval, and Cristina Naval on the ground that the reason that it has not been executed, according to the provisions of
the will, the allowance of which is asked, could not be allowed, because said section 618 of the Code of Civil Procedure, should be considered
of the existence of another will of subsequent date, executed during her as executed by her in order to express her desire, appearing in one of
lifetime by the same Simeona F. Naval, and because said will has been its clauses, to revoke and annul any previous will of hers, as stated in
revoked by another executed subsequently by her during her lifetime, clause 13, this being the argument adduced by the appellant, Monica
and, further, because said will has not been executed with the Naval, in support of said assignment of error — neither could it be
formalities required by existing laws. maintained that, the allowance of said will having been denied by the
court on November 11, 1915, said revocatory clause subsists and the
CFI RULING: Admitting said second document (Oct 1914 will) and intention expressed by the testatrix therein is valid and legally effective,
ordering its allowance as the last will and testament of said deceased. for the simple reason that, in order that a will may be revoked by a
document it is necessary, according to the conclusive provisions of
ISSUE: Whether the 1914 will should be allowed? section 623 of said procedural law, that such document be executed
according to the provisions relating to will in section 618, and the will in
RULING: YES, the 1914 will should be allowed, since the failure of question, or, according to the respondent, the so-called document, was
the 1915 will to conform with the requisites and formalities not executed according to the provisions of said section, according to
prescribed by Section 618 of the Code of Civil Procedure does not the express finding of the trial court in its order of November 11, 1915,
make it a valid will, it failed also to validly revoked the 1914 acquiesced in by the opponent herself, and which is now final and
will. Therefore, the disallowance of the 1915 will and the executory. Therefore, the disallowance of said will and the declaration
declaration that it was not executed according to the provisions of that it was not executed according to the provisions of law as to wills,
law as to wills, produced the effect of annulling said revocatory produced the effect of annulling said revocatory clause.
clause contained in the 1915 will also.
  CFI RULING: Admitting Molo’s 1918 will.
16. Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.
JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs. LUZ, ISSUE: Whether the 1918 will should be allowed?
GLICERIA and CORNELIO MOLO, oppositor-appellants. [G.R. No.
L-2538. September 21, 1951.] -> RULING: YES, the 1918 will should be allowed under the principle
of dependent relative revocation. Therefore, that even in the
FACTS: The testator Mariano Molo died on January 24 1941. Before supposition that the destruction of the original will by the testator
his death, Molo executed two wills: August 17 1918 and June 20 1939 could be presumed from the failure of the petitioner to produce it
(with a revocation clause, expressly revoking his 1918 will) in court, such destruction cannot have the effect of defeating the
prior will of 1918 because of the fact that it is founded on the
Molo was survived, however, by his wife petitioner Juana Juan Vda. de mistaken belief that the will of 1939 has been validly executed and
Molo, and by his nieces and nephew, the oppositors-appellants, Luz, would be given due effect. The theory on which this principle is
Gliceria and Cornelio, all surnamed Molo, who were the legitimate predicated is that the testator did not intend to die intestate. And
children of Candido Molo y Legaspi, deceased brother of the testator. this intention is clearly manifest when he executed two wills on
two different occasions and instituted his wife as his universal
On February 7, 1941 Juana Molo filed a petition for probate of her heir. There can therefore be no mistake as to his intention of dying
husband’s 1939 will with the Court of First Instance of Rizal. However, it testate. Indeed, Juanna cannot be considered guilty of estoppel
was later on denied for probate on the ground that Juana failed to prove which would prevent her from seeking the probate of the 1918 will
that it was executed in accordance with law. simply because her effort to obtain the allowance of the 1939 will
has failed considering that in both the 1918 and 1939 wills she was
In view of the disallowance of the 1939 will, Juana filed on February 24, instituted by her husband as his universal heir. Nor can she be
1944, a petition for probate of the 1918 will with the same court. Again, charged with bad faith far having done so because of her desire to
the same oppositors filed an opposition to the petition based on three prevent the intestacy of her husband. She cannot be blamed for
grounds: (1) that petitioner is now estopped from seeking the probate of being zealous in protecting her interest.
the will of 1918; (2) that said will has not been executed in the manner
required by law and (3) that the will has been subsequently revoked. There is no evidence which may directly indicate that the testator
But before the second petition could be heard, the battle for liberation deliberately destroyed the original of the 1918 will because of his
came and the records of the case were destroyed. 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
RESPONDENT’S CONTENTION: Regardless of said revocatory executed in 1918, Juan Salcedo, who prepared it, gave the original and
clause, said will of 1918 cannot still be given effect because of the copies to the testator himself and apparently they remained in his
presumption that it was deliberately revoked by the testator himself. possession until he executed his second will in 1939. And when the
The oppositors contend that the testator, after executing the 1939 will, 1939 will was denied probate on November 29, 1943, and petitioner
and with full knowledge of the revocatory clause contained in said will, was asked by her attorney to look for another will, she found the
himself deliberately destroyed the original of the 1918 will, and that for duplicate copy (Exhibit A) among the papers or files of the testator. She
this reason the will submitted by petitioner for probate in these did not find the original.
proceedings is only a duplicate of said original.
Granting for the sake of argument that the earlier will was voluntarily The will in question was attested, as required by law, by three
destroyed by the testator after the execution of the second will, which witnesses, Lorenzo Morales, Ru no Enriquez, and Angel Cuenca. The
revoked the first, could there be any doubt, under this theory, that said first two witnesses died before the commencement of the present
earlier will was destroyed by the testator in the honest belief that it was proceedings. So the only instrumental witness available was Angel
no longer necessary because he had expressly revoked it in his will of Cuenca and under our law and precedents, his testimony is su cient to
1939? In other words, can we not say that the destruction of the earlier prove the due execution of the will. However, petitioner presented not
will was but the necessary consequence of the testator's belief that the only the testimony of Cuenca but placed on the witness stand Juan
revocatory clause contained in the subsequent will was valid and the Salcedo, the notary public who prepared and notarized the will upon the
latter would be given effect? If such is the case, then it is our opinion express desire and instruction of the testator. The testimony of these
that the earlier will can still be admitted to probate under the principle of witnesses shows that the will had been executed in the manner
"dependent relative revocation". required by law. We have read their testimony and we were impressed
by their readiness and sincerity. We are convinced that they told the
"This doctrine is known as that of dependent relative revocation, and is truth.
usually applied where the testator cancels or destroys a will or executes
an instrument intended to revoke a will with a present intention to make  
a new testamentary disposition as a substitute for the old, and the new 17. TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA
disposition is not made or, if made, fails of effect for some reason. The MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
doctrine is not limited to the existence of some other document, MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO
however, and has been applied where a will was destroyed as a DE MOLO, petitioners, vs. COURT OF APPEALS, PANFILO MALOTO
consequence of a mistake of law . . .." (68 C. J. p. 799). AND FELINO MALOTO, respondents. [G.R. No. 76464. February 29,
1988.] ->
"The rule is established that where the act of destruction is connected
with the making of another will so as fairly to raise the inference that the FACTS: On October 20, 1963, Adriana Maloto died leaving as heirs her
testator meant the revocation of the old to depend upon the e cacy of niece and nephews, petitioners Aldina Maloto-Casiano and Constancio
the new disposition intended to be substituted, the revocation will be Maloto, and private respondents Panfilo Maloto and Felino Maloto.
conditional and dependent upon the e cacy of the new disposition; and Believing that Adriana did not leave behind a last will and testament,
if, for any reason, the new will intended to be made as a substitute is these four heirs commenced on November 4, 1963 an intestate
inoperative, the revocation fails and the original will remains in full proceeding for the settlement of their aunt's estate. The case was
force." (Gardner, pp. 232, 233.) instituted in the then Court of First Instance of Iloilo and was docketed
as Special Proceeding No. 1736. However, while the case was still in
"This is the doctrine of dependent relative revocation. The failure of the progress, or to be exact on February 1, 1964, the parties — Aldina,
new testamentary disposition, upon whose validity the revocation Constancio, Panfilo, and Felino — executed an agreement of
depends, is equivalent to the non-ful llment of a suspensive condition, extrajudicial settlement of Adriana's estate. The agreement provided for
and hence prevents the revocation of the original will. But a mere intent the division of the estate into four equal parts among the parties. The
to make at some time a will in place of that destroyed will not render the Malotos then presented the extrajudicial settlement agreement to the
destruction conditional. It must appear that the revocation is dependent trial court for approval which the court did on March 21, 1964.
upon the valid execution of a new will." (1 Alexander, p. 751; Gardner,
p. 233.)
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a satisfactorily established to be a will at all, much less the will of
former associate of Adriana's counsel, the late Atty. Eliseo Hervas, Adriana Maloto. For another, the burning was not proven to have
discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN been done under the express direction of Adriana. And then, the
(Testamento)," dated January 3, 1940, and purporting to be the last will burning was not in her presence. Also, nowhere in the records
and testament of Adriana. Atty. Palma claimed to have found the before us does it appear that the two witnesses, Guadalupe Vda.
testament, the original copy, while he was going through some de Corral and Eladio Itchon, both illiterates, were unequivocably
materials inside the cabinet drawer formerly used by Atty. Hervas. The positive that the document burned was indeed Adriana's will.
document was submitted to the office of the clerk of the Court of First Guadalupe, we think, believed that the papers she destroyed was
Instance of Iloilo on April 1, 1967. the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the
Later on, witnesses Guadalupe and Eladio, were presented and they burned document was the will because Guadalupe told him so,
testified that they were the only ones present at the place where the thus, his testimony on this point is double hearsay.
stove (presumably in the kitchen) was located in which the document or
papers was allegedly burned by the househelp Guadalupe Maloto Vda. The provisions of the new Civil Code pertinent to the issue can be
de Coral, upon instructions of Adriana. found in Article 830.
RESPONDENT’S CONTENTION: The respondent court stated that the Art. 830. No will shall be revoked except in the following cases:
presence of animus revocandi in the destruction of the will had,
nevertheless, been sufficiently proven. The appellate court based its 1. (1) By implication of law; or 
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, 2. (2) By some will, codicil, or other writing executed as provided
her seeking the services of Atty. Palma in order to have a new will in case of wills:
drawn up.
or
ISSUE: Whether there is a valid revocation of Adriana’s will?
(3) By burning, tearing, cancelling, or obliterating the will with the
RULING: NO, there is no valid revocation of Adriana’s will. In this intention of revoking it, by the testator himself, or by some other person
case, while animus revocandi, or the intention to revoke, may be in his presence, and by his express direction. If burned, torn, cancelled,
conceded, for that is a state of mind, yet that requisite alone would or obliterated by some other person, without the express direction of
not suffice. "Animus revocandi is only one of the necessary the testator, the will may still be established, and the estate distributed
elements for the effective revocation of a last will and testament. in accordance therewith, if its contents, and due execution, and the fact
The intention to revoke must be accompanied by the overt of its unauthorized destruction, cancellation, or obliteration are
physical act of burning, tearing, obliterating, or cancelling the will established according to the Rules of Court. (Emphasis Supplied.)
carried out by the testator or by another person in his presence
and under his express direction. There is paucity of evidence to It is clear that the physical act of destruction of a will, like burning in this
show compliance with these requirements. For one, the document case, does not per se constitute an effective revocation, unless the
or papers burned by Adriana's maid, Guadalupe, was not 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 the express
direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.
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 contested will. 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 has been duly probated and a
certificate of its allowance issued.

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SUCCESSION FEB 21 PROVISIONS + DIGESTS Page 1 of 29

TRIAL COURT RULING: In favor of Spouses Ajero. The trial court

Respondent Luz R. Henson, another compulsory heir filed an

On August 24, 1973, respondent Judge Jose C. Colayco issued an

ISSUE: Whether Bibiana Roxas de Jesus’ letter will should be allowed?

RULING: YES, Bibiana Roxas de Jesus’ letter will should be

When on November 19, 1951, Felicidad was confined at the U.S.T.

Pursuant to Article 811 of the Civil Code, probate of holographic wills is

"A codicil has been defined as some addition to or qualification of one's

In a proceeding to probate a will the burden of proof is upon the

For one, there is yet, strictly speaking, no final judgment rendered

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