Succession digests

Succession Digests

1. Perez v Tolete

QUIAZON, J. The evidence necessary for the reprobate or allowance of wills which
have been probated outside of the Philippines are as follows: (1) the due execution of
the will in accordance with the foreign laws; (2) the testator has his domicile in the
foreign country and not in the Philippines; (3) the will has been admitted to probate in
such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of
a foreign country on procedure and allowance of wills. What the law expressly prohibits
is the making of joint wills either for the testators’ reciprocal benefit or for the benefit of a
third person.In the case at bench, the Cunanan spouses executed separate wills. Since
the two wills contain essentially the same provisions and pertain to property which in all
probability are conjugal in nature, practical considerations dictate their joint probate.

FACTS:

· Dr. Cunanan and his wife, who became American citizens and residents of New
York each executed, a will. Both will contain same provisions, that in the event of death,
to bequeath to the spouse surviving "all the remainder" of their real and personal
property at the time of his or her death "whosesoever situated".

· Dr. Cunanan and his entire family perished.

· The trustee filed separate proceedings for the probate thereof. Admitted to probate.

· Later, mother of wife filed a petition for the reprobate of the two wills ancillary to the
probate proceedings in New York. The trial court directed the issuance of letters of
special administration in favor of her.

· The Cunanan heirs filed a motion to nullify the proceedings

In her opposition, petitioner asserted that she was the "sole and only heir" of her
daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"
hence they were complete strangers to the proceedings and were not entitled to notice.
In 1984, the trial court issued an order, disallowing the reprobate of the two wills,
recalling the appointment of petitioner as special administratrix, requiring the
submission of petitioner of an inventory of the property received by her as special
administratrix and declaring all pending incidents moot and academic. Judge de la
Llana reasoned out that petitioner failed to prove the law of New York on procedure and
allowance of wills and the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same as the law
of the Philippines. However, he noted, that there were only two witnesses to the wills of
the Cunanan spouses and the Philippine law requires three witnesses and that the wills
were not signed on each and every page, a requirement of the Philippine law.

ISSUE: Whether the reprobate of the wills should be allowed. (YES)

RULING

· "Art. 816. The will of an alien who is abroad produces effect in the Philippines if
made with the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with those which
this Code prescribes." Thus, proof that both wills conform with the formalities prescribed
by New York laws or by Philippine laws is imperative. The evidence necessary for the
reprobate or allowance of wills which have been probated outside of the Philippines are
as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the
testator has his domicile in the foreign country and not in the Philippines; (3) the will has
been admitted to probate in such country; (4) the fact that the foreign tribunal is a
probate court, and (5) the laws of a foreign country on procedure and allowance of.
Except for the first and last requirements, the petitioner submitted all the needed
evidence. The necessity of presenting evidence on the foreign laws upon which the
probate in the foreign country is based is impelled by the fact that our courts cannot
take judicial notice of them. Petitioner must have perceived this omission as in fact she
moved for more time to submit the pertinent procedural and substantive New York laws
but which request respondent Judge just glossed over. While the probate of a will is a
special proceeding wherein courts should relax the rules on evidence, the goal is to
receive the best evidence of which the matter is susceptible before a purported will is
probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).

· There is merit in petitioner’s insistence that the separate wills of the Cunanan
spouses should be probated jointly. Respondent Judge’s view that the Rules on
allowance of wills is couched in singular terms and therefore should be interpreted to
mean that there should be separate probate proceedings for the wills of the Cunanan
spouses is too literal and simplistic an approach. Such view overlooks the provisions of
Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be
"liberally construed in order to promote their object and to assist the parties in obtaining
just, speedy, and inexpensive determination of every action and proceeding." A literal
application of the Rules should be avoided if they would only result in the delay in the
administration of justice. What the law expressly prohibits is the making of joint wills
either for the testators’ reciprocal benefit or for the benefit of a third person (Civil Code
of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed
separate wills. Since the two wills contain essentially the same provisions and pertain to
property which in all probability are conjugal in nature, practical considerations dictate
their joint probate. This petition cannot be completely resolved without touching on a
very glaring fact — petitioner has always considered herself the sole heir of Dr. Evelyn
Perez Cunanan and because she does not consider herself an heir of Dr. Jose F.
Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus,
even in the instant petition, she only impleaded respondent Judge, forgetting that a
judge whose order is being assailed is merely a nominal or formal party. The rule that
the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be
given as in case of an original will presented for allowance" (Revised Rules of Court,
Rule 27, Section 2) means that with regard to notices, the will probated abroad should
be treated as if it were an "original will" or a will that is presented for probate for the first
time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require
publication and notice by mail or personally to the "known heirs, legatees, and devisees
of the testator resident in the Philippines" and to the executor, if he is not the petitioner,
are required. The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner’s
claim are entitled to notices of the time and place for proving the wills. Under Section 4
of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice
of the time and place fixed for proving the will to be addressed to the designated or
other known heirs, legatees, and devisees of the testator, . . ."

2. AVERA v GARCIA

STREET, J. The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution o will and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's last will,
must be disregarded. The instrument now before us contains the necessary signatures
on every page, and the only point of deviation from the requirement of the statute is that
these signatures appear in the right margin instead of the left. By the mode of signing
adopted every page and provision of the will is authenticated and guarded from possible
alteration in exactly the same degree that it would have been protected by being signed
in the left margin; and the resources of casuistry could be exhausted without
discovering the slightest difference between the consequences of affixing the signatures
in one margin or the other.

FACTS:

· Avera instituted the proceedings for the probate of the will of one Esteban Garcia.

· Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the
minors Jose Garcia and Cesar Garcia contested. Upon the date appointed for the
hearing, the proponent of the will introduced one of the three attesting witnesses who
testified that the will was executed with all necessary external formalities, and that the
testator was at the time in full possession of disposing faculties. Upon the latter point
the witness was corroborated by the person who wrote the will at the request of the
testator. Two of the attesting witnesses were not introduced, nor was their absence
accounted for by the proponent of the will. Trial judge found that the testator at the time
of the making of the will was of sound mind and disposing memory and that the will had
been properly executed. He accordingly admitted the will to probate.

· From this judgment an appeal was taken in behalf of the persons contesting the will,
and the only errors here assigned have reference to the two following points, namely,
first, whether a will can be admitted to probate, where opposition is made, upon the
proof of a single attesting witness, without producing or accounting for the absence of
the other two; and, secondly, whether the will in question is rendered invalid by reason
of the fact that the signature of the testator and of the three attesting witnesses are
written on the right margin of each page of the will instead of the left margin.

ISSUES:

I. Whether a will can be admitted to probate, where opposition is made, upon the proof
of a single attesting witness. (YES)

II. Whether the will in question is rendered invalid by reason of the fact that the
signature of the testator and of the three attesting witnesses are written on the right
margin of each page of the will instead of the left margin (NO).

RULING:
· I. While it is undoubtedly true that an uncontested will bay be proved by the testimony of
only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291),
this court declared after an elaborate examination of the American and English authorities that
when a contest is instituted, all of the attesting witnesses must be examined, if alive and within
reach of the process of the court. In the present case no explanation was made at the trial as to
why all three of the attesting witnesses were not produced, but the probable reason is found in
the fact that, although the petition for the probate of this will had been pending from December
21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was
entered until the very day set for the hearing; and it is probable that the attorney for the
proponent, believing in good faith the probate would not be contested, repaired to the court with
only one of the three attesting witnesses at hand, and upon finding that the will was contested,
incautiously permitted the case to go to proof without asking for a postponement of the trial in
order that he might produce all the attesting witnesses. Although this circumstance may explain
why the three witnesses were not produced, it does not in itself supply any basis for changing
the rule expounded in the case above referred to; and were it not for a fact now to be
mentioned, this court would probably be compelled to reverse this case on the ground that the
execution of the will had not been proved by a sufficient number of attesting witnesses. It
appears, however, that this point was not raised by the appellant in the lower court either upon
the submission of the cause for determination in that court or upon the occasion of the filing of
the motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now
be raised for the first time in this court. We believe this point is well taken, and the first
assignment of error must be declared not be well taken.

· II. It is true that the statute says that the testator and the instrumental witnesses shall sign
their names on the left margin of each and every page; and it is undeniable that the general
doctrine is to the effect that all statutory requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial it would be
absurd to suppose that the Legislature could have attached any decisive importance to them.
The provision to the effect that the signatures of the testator and witnesses shall be written on
the left margin of each page — rather than on the right margin — seems to be this character. So
far as concerns the authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or no the right margin, provided they are on
one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not
reported), this court declared a will void which was totally lacking in the signatures required to
be written on its several pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will
was likewise declared void which contained the necessary signatures on the margin of each leaf
(folio), but not in the margin of each page containing written matter. The instrument now before
us contains the necessary signatures on every page, and the only point of deviation from the
requirement of the statute is that these signatures appear in the right margin instead of the left.
By the mode of signing adopted every page and provision of the will is authenticated and
guarded from possible alteration in exactly the same degree that it would have been protected
by being signed in the left margin; and the resources of casuistry could be exhausted without
discovering the slightest difference between the consequences of affixing the signatures in one
margin or the other. The same could not be said of a case like that of Estate of Saguinsin,
supra, where only the leaves, or alternate pages, were signed and not each written page; for as
observed in that case by our late lamented Chief Justice, it was possible that in the will as there
originally executed by the testatrix only the alternative pages had been used, leaving blanks on
the reverse sides, which conceivably might have been filled in subsequently. The controlling
considerations on the point now before us were well stated In Re will of Abangan (40 Phil., 476,
479), where the court, speaking through Mr. Justice Avanceña, in a case where the signatures
were placed at the bottom of the page and not in the margin, said: The object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution o will and testaments and to guarantee their truth and authenticity. Therefore the
laws on this subject should be interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded. In the case before us, where ingenuity could not suggest any possible prejudice to
any person, as attendant upon the actual deviation from the letter of the law, such deviation
must be considered too trivial to invalidate the instrument.

3. TAMPOY vs. ALBERASTINE

Facts:

· This concerns the probate of a document which purports to be the last will and
testament of Tampoy. After the petition was published in accordance with law and
petitioner had presented oral and documentary evidence, the trial court denied the
petition on the ground that the left hand margin of the first page of the will does not bear
the thumbmark of the testatrix.

· Petitioners contend that the will expresses the true intention of the testatrix to give
the property to her whose claims remain undisputed. She wishes to emphasize that no
one has filed any opposition to the probate of the will and that while the first page does
not bear the thumbmark of the testatrix, the second however bears her thumbmark and
both pages were signed by the three testimonial witnesses. Moreover, despite the fact
that the petition for probate is unopposed, the three testimonial witnesses testified and
manifested to the court that the document expresses the true and voluntary will of the
deceased.

Issue: Whether a will where the left hand margin of the first page of the document does
not bear the thumb mark of the testatrix may be admitted to probate

Ruling:

· Section 618 of Act 190, as amended, requires that the testator sign the will and
each and every page thereof in the presence of the witnesses, and that the latter sign
the will and each and every page thereof in the presence of the testator and of each
other, which requirement should be expressed in the attestation clause. This
requirement is mandatory, for failure to comply with it is fatal to the validity of the will.

· Thus, it has been held that "Statutes prescribing the formalities to be observed in
the execution of wills are very strictly construed. 'A will must be executed in accordance
with the statutory requirements; otherwise it is entirely void.' All these requirements
stand as of equal importance and must be observed, and courts cannot supply the
defective execution of a will. No power or discretion is vested in them, either to
supersede other conditions or dispense with those enumerated in the statutes" (Uy
Coque vs. Navas L. Sioca, 43 Phil., 405, 407; See also Saño vs. Quintana, 48 Phil.,
506; Gumban vs. Gorecho 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481).Since the will
in question suffers from the fatal defect that it does not bear the thumbmark of the
testatrix on its first page even if it bears the signature of the three instrumental
witnesses, the same still fails to comply with the law and therefore, cannot be admitted
to probate. The order appealed from is affirmed

4. In re: Will of Andrada

FACTS:

A petition was presented to the Court of First Instance of Capiz by Lucila Arce to
establish a document purporting to be the last will and testament of the deceased
Lucina Andrada. Upon hearing the petition, Judge Antonio Villareal, declared that the
document in question had not been executed in conformity with the requirements under
the law. He therefore refused to admit the purported will to probate, and the petitioner
appealed.

The defect consists of the fact that it does not state the number of sheets or
pages upon which the will is written.

ISSUE:

Whether or not the defect pointed out in the attesting clause is fatal

HELD:

Yes. The Court held that the trial judge did not err in refusing probate of the will.
The law plainly says that the attestation shall state the number of sheets or pages used,
the evident purpose being to safeguard the document from the possibility of the
interpolation of additional pages or the omission of some of the pages actually used. It
is true that this point is also safeguarded by the other two requirements that the pages
shall be consecutively lettered and that each page shall be singed on the left margin by
the testator and the witnesses.

5. G.R. No. L-4603 October 25, 1952

In re: Petition for the probate of the will of the deceased LEONA SINGSON. MANUEL
SINGSON, petitioner-appellee,

vs.

EMILIA FLORENTINO, TRINIDAD FLORENTINO DE PAZ, and JOSEFINA FLORENTINO VDA.

DE LIM,oppositors-appellants.

BAUTISTA ANGELO, J.:

This is an appeal from a decision of the Court of First Instance of Ilocos Sur admitting to probate the
last will and testament of the late Leona Singson.

On January 13, 1948, Leona Singson died in Vigan, Ilocos Sur leaving a will. In said will the
deceased instituted as heirs her brothers Evaristo, Dionisio and Manuel, her nieces Rosario F. de
Donateo, Emilia Florentino and Trinidad Florentino de Paz, her grandniece Consolacion Florentino,
and some servants. She named her brothers Evaristo and Manuel as executors of the will. On
February 2, l948, Manuel Dingson filed a petition for the probate of said will.

On March 6, 1948, Emilia Florentino, Trinidad Florentino de Paz and Josefina Florentino Vda. de
Lim, daughters of a sister of the deceased, opposed the petition alleging among other grounds that
the signatures appearing in the will are not the genuine signatures of the deceased, and that the will
has not been executed in accordance with the formalities of the law.

After due trial, the court found that the will has been executed in accordance and admitted the same
to probate. The oppositors appealed to the Court of Appeals, but the case was later certified to this
court for the reason that it involves purely questions of law.

The first error assigned refers to the admission by the lower court of the deposition of Fidel Reyes,
an instrumental witness, which was taken because he was then suffering from paralysis and was
thus physically incapacitated to appear and testify in court. It is the claim of the oppositors that,
under section 11, Rule 77 of the Rules, if the will is contested, all the subscribing witnesses present
in the Philippines must be produced and examined, and if they are dead, absent or insane, this fact
must be satisfactorily shown to the court. If the subscribing witness is present in the Philippines but
outside the province where the will has been filed, his deposition must be taken. In this case Fidel
Reyes was not outside the province, in fact he was then living in the place where the case was
pending trial. He, therefore, must appear in court and his deposition cannot be taken. And so they
contend that the lower court erred in admitting his deposition instead of taking his testimony.

It should be noted that one of the three instrumental witnesses of the will, namely. Bonifacio
Brillantes, was already dead when the case came up for trial and the only witness then available
were Victorio Lazo and Fidel Reyes who was then unable to appear because of his physical ailment.
And when this matter was brought to the knowledge of the court. The latter manifested its desire to
go to the house of the ailing witness for the taking of his testimony, but the move was prevented
because of the confirmity of counsel for the oppositors to the taking of his deposition. And because
of this conformity, the deposition was taken and on that occasion opposing counsel was present and
actually took part in the taking of the deposition. In the face of these facts, we opine that, while the
taking of the deposition was not made in strict compliance with the rule (section 11, Rule 77), the
deficiency, if any, has been cured by the waiver evinced by counsel for the oppositors which
prevented the court from constituting itself in the residence of the witness.

We believe, however, that the deposition may also be justified by interpreting section 11, Rule 77, in
connection with Rule 18, section 4 (c), of the rules, relative to the taking of the deposition of a
witness in ordinary cases when he is unable to testify because of sickness. Interpreting and
harmonizing together these two provisions we may draw the conclusion that even if an instrumental
witness is within the seat of the court but is unable to appear because of sickness, as in this case,
his deposition may still be taken, for a different interpretation would be senseless and impractical
and would defeat the very purpose which said Rule 77 intends to serve.

Another point raised by oppositors refers to the alleged failure of the attestation clause to state the
number of the sheets or pages in which the will is written which, it is claimed, is fatal because it is
contrary to the express requirement of the law.

The law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which the
will is written, which requirement has been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42, Phil., 180; Uy
Coque vs. Navas L. Sioca, 45 Phil., 405; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54
Phil., 481; Echavarria vs. Sarmiento, 66 (Phil. 611). The ratio decidendi of these cases seems to be
that the attestation clause must contain a statement of the number of sheets or pages composing
the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the
will itself. But here the situation is different. While the attestation clause does not state the number of
sheets or pages upon which the will is written, however, the last part of the body of the will contains
a statement that it is composed of eight pages, which circumstance in our opinion takes this case out
of the rigid rule of construction and places it within the realm of similar case where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations.

One of such case is De Gala vs. Gonzales and Ona, 53 Phil., 104. Here one of the objections raised
was that the attestation clause does not state that the will has not been signed in the presence of the
witnesses although this fact appears in the last paragraph of the body of the will, and the Court in
overruling the objection, said that "it may be conceded that the attestation clause is not artistically
drawn and that, standing alone, it does not quite meet the requirements of the statute, but taken in
connection with the last clause of the body of the will, it is fairly clear and sufficiently carries out the
legislative intent; it leaves no possible doubt as to the authenticity of the document."

Another case that maybe cited is Mendoza vs. Pilapil (72 Phil., 546). In this case, the objection was
that the attestation clause does not state the number of pages upon which the will was written, and
yet the court held that the law has been substantially complied with inasmuch as in the body of the
will and on the same page wherein the attestation clause appears written it is expressly stated that
will contains three pages each of which was numbered in letters and in figures. Said the court:
 El proposito de la ley al establecer las formalidades que se requieren en un testamento, es
indudablemente asegurar y garantizar su autenticidad contra la mala fe y el fraude, para
evitar que aquellos que no tienen derecho a suceder al testador le suceden y salgan
beneficiados con la legalizacion del mismo. Se ha cumplido dicho proposito en el caso de
que se viene hablando porque, en el mismo cuerpo testamento y en la misma pagina donde
aparece la clausula de atestiguamiento, o sea la tercera, se expresa que el testamento
consta de tres paginas y porque cadauna de las dos primeras lleva en parte la nota en
letras, y en parte la nota en guarismos, de que son respectivamente la primera y segunda
paginas del mismo. Estos hechos excluyen evidentemente todo temor, toda sospecha, o
todo asomo de duda de que se haya sustituido alguna e sus paginas con otra. (Mendoza vs.
Pilapil. 72 Phil., 546.)

Considering the form in which the will in question is written in the light of the liberal ruling above
adverted to, the conclusion is inescapable that the will has been drafted in substantial compliance
with the law. This opinion is bolstered up when we examine the will itself which shows on its face
that it is really and actually composed of eight pages duly signed by the testatrix and her
instrumental witnesses.

The remaining to be determined is: does the attestation clause state that the testatrix signed each
and every page of the will in the presence of the three instrumental witnesses as required by law?

The disputed attestation clause read as follows:

Nosotroslos testigos, conforme al ruego de Da. Leona Singson en este testamento, despues
de anunciarnos que este es su testamento donde hizo sus ordenes sobre su verdadera
yultima voluntad, firmo e imprimio su marca digital en presencia de ella y delante de cada
uno de nosotros al pie del citado testamento y en el margen izquierdo de dus otras paginas.
Yhemos observado que Da. Leona Singson estaba en su sano juicio, pensamiento y uso de
sus sentidos. (Exh. A-1)

A perusal of the above attestation clause would at first glance give the impression that the testatrix
merely signed or stamped her thumbmark on the will in the presence of the witnesses, without
stating the place where her signature or thumbmark had been affixed, which impression is caused
by the fact that right after the sentencefirmo e imprimio su marca digital en presencia de todos
nosotros, there appears a semi-colon is disregarded, we would at one see that the testatrix signed or
affixed her thumbmark not only at the bottom of the will but also on the left margin of each page
thereon, considering the concluding part of the sentence concerning the signing of the will. That
semicolon undoubtedly has been placed there by mistake or through inadvertence, as may be
deduced from the use of the word tambien made by the witnesses in the sentence immediately
following, which conveys the idea of oneness in action both on the part of the testatrix and the
witnesses. Thus considered and interpreted, the attestation clause complies substantially with the
law.

The appellants earnestly contend that the attestation clause fails to show that the witnesses
signed the will and each and every page thereof because it simply says "que nosotros los
testigos hemos tambien firmado en presencia del uno al otro" (that we the witnesses also
signed in the presence of the testatrix and of each other).

In an answer to this contention it may be said that this portion of the attestation clause must
be read in connection with the portion preceding it, which states that the testatrix signed the
will and on all the margins thereof in the presence of the witnesses; especially because the
word also used therein establishes a very close connection between said two portions of the
attestation clause. This word also should, therefore, be given in its full meaning which, in the
 instant case, is that the witnesses signed the will in the same manner as the testatrix did.
The language of the whole attestation clause, taken together, clearly shows that the
witnesses signed the will and on all the margins thereof in the presence of the testatrix and
of each other." (Rey vs. Cartagena, 56 Phil., pp. 282, 284)

In view of the foregoing, we find that the lower court did not commit any of the errors assigned by
appellants and, therefore, we affirm the decision appealed from, with costs.

6. DIAZ V DE LEON

G.R. No. 17714 May 31, 1922

Facts:

1. Jesus de Leon executed 2 wills, the second will was not deemed in conformance to
the requirements under the law. After executing his first will, he asked it to be
immediately returned to him. As it was returned, he instructed his servant to tear it. This
was done in the testator's presence and his nurse. After sometime, he was asked by his
physician about the incident wherein he replied that the will has already been destroyed.

Issue: Whether or not there was a valid revocation of the will

RULING: Yes. His intention to revoke is manifest from the facts that he was anxious to
withdraw or change the provisions he made in the first will. This fact was shown from his
own statements to the witnesses and the mother superior of the hospital where he was
subsequently confined. The original will which was presented for probate is deemed
destroyed hence, it cannot be probated as the last will and testament of testator.

7.PAYAD v TOLENTINO
Dispositive: The appealed order of the trial court is reversed and the questioned will of
Leoncia Tolentino, deceased, is hereby admitted to probate with the costs of this appeal
against the oppositor-appellant.

Topic: Notarial Wills Doctrine/s: TESTATOR'S SIGNATURE. — It was not necessary

that the attestation clause in question should state that the testatrix requested Attorney
A to sign her name inasmuch as the testatrix signed the will in question in accordance
with law. TESTATOR'S MARK. — "A statute requiring a will to be 'signed' is satisfied if
the signature is made by the testator's mark."

Facts: 1. VIctorio Payad and Aquilina Tolentino filed an appeal from the decision of the
trial court to deny the probate of the will of one Leoncia Tolentino. That court found that
the will in question was executed by the deceased on the date appearing thereon,
September 7, 1933, one day before the death of the testatrix, but the court, denied
probate on the ground that the attestation clause was not in conformity with the
requirements of law in that it is not stated therein that the testatrix caused Attorney
Almario to write her name at her express direction. The appeal of Tolentino is based
upon the alleged failure of the trial court in not finding that the will in question was
executed after the death of Leoncia Tolentino, or that she was mentally and physically
incapable of executing said will one day before her death. The contention of VIctorio
Payad on the otherhand was that the trial court denied probate of the will on the sole
ground that the attestation clause does not state that the testatrix requested Attorney
Almario to write her name.

Issue: W/N the attestation clause was in conformity with the requirements of law

Held: Yes. The evidence of record establishes the fact the Leoncia Tolentino, assisted
by Attorney Almario, placed her thumb mark on each and every page of the questioned
will and that said attorney merely wrote her name to indicate the place where she
placed said thumb mark. In other words Attorney Almario did not sign for the testatrix.
She signed by placing her thumb mark on each and every page thereof. It is clear,
therefore, that it was not necessary that the attestation clause in question should state
that the testatrix requested Attorney Almario to sign her name inasmuch as the testatrix
signed the will in question in accordance with law.

Notes: (facts from the sept. 1936 case, baka kasi magulo yung instant case kasi wala
masyado details) Leoncia Tolentino, notwithstanding her advanced age of 92 years,
was in good health until September 1, 1933. She had a slight cold on said date for
which reason she was visited by her physician, Dr. Florencio Manuel. Said physician
again visited her three or four days later and found her still suffering from said illness
but there was no indication that she had but a few days to live. She ate comparatively
well and conserved her mind and memory at least long after noon of September 7,
1933. On September 7, 1933, she made a will prepared by Attorney Marciano Almario
between 11 and 12 o'clock noon in her house bequeathing her property to the petitioner
Victorio Payad in compensation according to her, for his diligent and faithful services
rendered to her. The 3 page will was: · written by Attorney Almario in his own
handwriting, and was written in Spanish because he had been instructed to do so by the
testatrix · read to her in the presence of: Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L.
Ona and other persons who were then present. · approved all the contents of the
document by the testatrix and · sign by means of testatrix’s thumbmark because she
was too weak to hold a pen. · attorney later signed the three pages of the will in the
presence of the testatrix and also of Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L.
Ona, who all then signed as well.

8. Garcia v. Lacuesta

FACTS:

This case involves the will of Antero Mercado, which among other defects was signed by the
testator through a cross mark (an “X”). The will was signed by Atty. Javier who wrote the name
of Mercado as testator and the latter allegedly wrote a cross mark after his name. The CFI
allowed the will but the CA disallowed it because its attestation clause was defective for failing
to certify 1) that the will was signed by Atty. Javier at the express direction of the testator, 2) that
the testator wrote a cross at the end of his name after Atty. Javier signed for him, and 3) that the
3 witnesses signed the will in the presence of the testator and of each other.

ISSUE:

Whether the will should be allowed despite the defect of the attestation clause since the testator
had placed a cross mark himself as his signature.

HELD:

The attestation clause is fatally defective for failing to state that Mercado directed Javier to write
the testator’s name under his express direction. Petitioner’s argument that such recital is
unnecessary because the testator signed the will himself using a cross mark which should be
considered the same as a thumb-mark (which has been held sufficient in past cases) is not
acceptable. A cross mark is not the same as a thumb mark, because the cross mark does not
have the same trustworthiness of a thumb mark.

9. CRUZ v VILLASOR

ESGUERRA, J. The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow; to own as genuine, to assent, to
admit; and "before" means in front or preceding in space or ahead of. Consequently, if the third
witness were the notary public himself, he would have to avow assent, or admit his having
signed the will in front of himself. This cannot be done because he cannot split his personality
into two so that one will appear before the other to acknowledge his participation in the making
of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.

FACTS: One of the three instrumental witnesses in the will of Agapita N. Cruz is Atty. Angel H.
Teves, Jr. He was, at the same time, the Notary Public before whom the will was supposed to
have been acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself, petitioner argues that
the result is that only two witnesses appeared before the notary public to acknowledge the will.
On the other hand, private respondent appellee, Manuel B. Lugay, who is the supposed
executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the
notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p.
227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical
reason that one of the witnesses required by law signed as certifying to an acknowledgment of
the testator's signature under oath rather than as attesting the execution of the instrument.

ISSUE: Whether the notary public before whom the will was acknowledged can be considered
as the third instrumental witness. (NO)

RULING: The notary public before whom the will was acknowledged cannot be considered as
the third instrumental witness since he cannot acknowledge before himself his having signed
the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262;
Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before"
means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of
the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English
Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third
witness were the notary public himself, he would have to avow assent, or admit his having
signed the will in front of himself. This cannot be done because he cannot split his personality
into two so that one will appear before the other to acknowledge his participation in the making
of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the
notary public were one of the attesting instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him and the validity of his own act. It
would place him in inconsistent position and the very purpose of acknowledgment, which is to
minimize fraud (Report of Code Commission p. 106-107), would be thwarted. Admittedly, there
are American precedents holding that notary public may, in addition, act as a witness to the
executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17
SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as
notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback,
122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also
Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law
in this jurisdiction or are not decisive of the issue herein because the notaries public and
witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting
witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil
Code which reads: ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a copy of the will or
file another with the office of the Clerk of Court. [Emphasis supplied] To allow the notary public
to act as third witness, or one the attesting and acknowledging witnesses, would have the effect
of having only two attesting witnesses to the will which would be in contravention of the
provisions of Article 80 be requiring at least three credible witnesses to act as such and of
Article 806 which requires that the testator and the required number of witnesses must appear
before the notary public to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for or that purpose. In the circumstances,
the law would not be duly in observed.

10. Gan v. Yap

FACTS:

Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan, and in Manila.Fausto
E. Gan, her nephew, initiated the proceedings in the Manila CFI with a petition for the probate of
a holographic will allegedly executed by the deceased.

The will was not presented because Felicidad’s husband, Ildefonso, supposedly took it. What
was presented were witness accounts of relatives who knew of her intention to make a will and
allegedly saw it as well. According to the witnesses, Felicidad did not want her husband to know
about it, but she had made known to her other relatives that she made a will.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Judge refused to probate the
alleged will on account of the discrepancies arising from the facts. For one thing, it is strange
that Felicidad made her will known to so many of her relatives when she wanted to keep it a
secret and she would not have carried it in her purse in the hospital, knowing that her husband
may have access to it. There was also no evidence presented that her niece was her confidant.

In the face of these improbabilities, the trial judge had to accept the oppositor’s evidence that
Felicidad did not and could not have executed such holographic will.

ISSUE:

1. May a holographic will be probated upon the testimony of witnesses who have allegedly seen
it and who declare that it was in the handwriting of the testator?

2. W/N Felicidad could have executed the holographic will.

HELD:

1. No. The will must be presented.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. “A person
may execute a holographic will which must 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 of the Philippines,
and need not be witnessed.”

This is a radical departure from the form and solemnities provided for wills under Act 190, which
for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three
credible witnesses in each and every page; such witnesses to attest to the number of sheets
used and to the fact that the testator signed in their presence and that they signed in the
presence of the testator and of each other. Authenticity and due execution is the dominant
requirements to be fulfilled when such will is submitted to the courts for allowance. For that
purpose the testimony of one of the subscribing witnesses would be sufficient if there is no
opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. From the testimony of
such witnesses (and of other additional witnesses) the court may form its opinion as to the
genuineness and authenticity of the testament, and the circumstances its due execution.

With regard to holographic wills, no such guaranties of truth and veracity are demanded, since
as stated, they need no witnesses; provided however, that they are “entirely written, dated, and
signed by the hand of the testator himself.”

“In the probate of a holographic will” says the New Civil Code, “it shall be necessary that at least
one witness who knows the handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will is contested, at least three
such witnesses shall be required. In the absence of any such witnesses, (familiar with
decedent’s handwriting) and if the court deem it necessary, expert testimony may be resorted
to.”

The witnesses need not have seen the execution of the holographic will, but they must be
familiar with the decedent’s handwriting. Obviously, when the will itself is not submitted, these
means of opposition, and of assessing the evidence are not available. And then the only
guaranty of authenticity — the testator’s handwriting — has disappeared.

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed
will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet
such Rules could not have contemplated holographic wills which could not then be validly made
here. Could Rule 77 be extended, by analogy, to holographic wills? (NO)

Spanish commentators agree that one of the greatest objections to the holographic will is that it
may be lost or stolen — an implied admission that such loss or theft renders it useless.

As it is universally admitted that the holographic will is usually done by the testator and by
himself alone, to prevent others from knowing either its execution or its contents, the above
article 692 could not have the idea of simply permitting such relatives to state whether they
know of the will, but whether in the face 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.
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter.(According to the Fuero, the will itself must
be compared with specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature.

Taking all the above circumstances together, we reach the conclusion that the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.

At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The
difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the
handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and
of the notary, now). The loss of the holographic will entails the loss of the only medium of proof;
if the ordinary will is lost, the subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and
acts on the particular day, the likelihood that they would be called by the testator, their intimacy
with the testator, etc. And if they were intimates or trusted friends of the testator they are not
likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they
can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and
read the forgery; and the latter, having no interest, could easily fall for it, and in court they would
in all good faith affirm its genuineness and authenticity. The will having been lost — the forger
may have purposely destroyed it in an “accident” — the oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature —

feasibility of forgery — would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.

One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion
of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the handwriting itself is not at hand.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will,
we think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that “clear and distinct” proof required by Rule 77,
sec. 6.
2. No. Even if oral testimony were admissible to establish and probate a lost holographic will, we
think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that “clear and distinct” proof required by Rule 77,
sec. 6.

11. Rodelas v. Aranza

FACTS:

Rodelas filed a petition with the CFI of Rizal for the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in her favor.

Aranza, et al. filed a MTD on the grounds of:

1.Rodelas was estopped from claiming that the deceased left a will by failing to produce the will
within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of
Court;

2.the copy of the alleged holographic will did not contain a disposition of property after death
and was not intended to take effect after death, and therefore it was not a will, it was merely an
instruction as to the management and improvement of the schools and colleges founded by the
decedent;

3.the hollographic will itself, and not an alleged copy thereof, must be produced, otherwise it
would produce no effect because lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.

4.the deceased did not leave any will, holographic or otherwise, executed and attested as
required by law.

MTD was denied. Aranza et al. filed an MR, Rodelas filed an opposition.

The CFI set aside its order and dismissed the petition for the probate of the will stating that “in
the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that ‘in the matter of
holographic wills the law, it is reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.”

And that the alleged holographic will was executed on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. The lapse of more than 14 years from the time of the execution of
the will to the death of the decedent and the fact that the original of the will could not be located
shows to that the decedent had discarded the alleged holographic will before his death.

Rodelas filed an MR which was denied. Rodelas appealed to the CA. Aranza et al. moved to
forward the case to the SC as it involves a question of law not of fact.

ISSUE: W/N a holographic will which was lost or cannot be found can be proved by means of a
photostatic copy.
HELD: If the holographic will has been lost or destroyed and no other copy is available, the will
cannot 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 handwritten statements of the
testator and the handwritten will.

But, a photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made by the probate court with the standard writings of the testator. The
probate court would be able to determine the authenticity of the handwriting of the testator.

In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that “the execution and the contents
of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses
who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity.” But, in
Footnote 8 of said decision, it says that “Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be exhibited and tested before
the probate court,”

12. MOLO V MOLO

BAUTISTA ANGELO, J. 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 testator meant the
revocation of the old to depend upon the efficacy of a new disposition intended to be
substituted, the revocation will be conditional and dependent upon the efficacy of the new
disposition; and if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full force. We hold therefore, that
even in the supposition that the destruction of the original will by the testator could be presumed
from the failure of the petitioner to produce it 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 mistaken belief that
the will of 1939 has been validly executed and would be given due effect. It is true that our law
on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or
other writing executed as proved in case of wills" but it cannot be said that the 1939 will should
be regarded, not as a will within the meaning of said word, but as "other writing executed as
provided in the case of wills", simply because it was denied probate. And even if it be regarded
as any other writing within the meaning of said clause, there is authority for holding that unless
said writing is admitted to probate, it cannot have the effect of revocation

FACTS: Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any forced heir either in the descending or ascending line. He
was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his
nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo,
who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator.
Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, and another executed
on June 20, 1939. The later will executed in 1918. On February 7, 1941, Juana Juan Vda. de
Molo, filed in the Court of First Instance of Rizal a petition docketed as special proceeding
no.8022 seeking the probate of the will executed by the deceased on June 20, 1939. There
being no opposition, the will was probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to probate was set aside and the case was
reopened. After hearing, at which both parties presented their evidence, the court rendered
decision denying the probate of said will on the ground that the petitioner failed to prove that the
same was executed in accordance with law. In view of the disallowance of the will executed on
June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will
executed by the deceased on August 17, 1918, which was docketed as special proceeding No.
56, in the same court. Again, the same oppositors filed an opposition to the petition based on
three grounds: (1) that petitioner is now estopped from seeking Testate Estate of the Deceased
MARIANO MOLO Y the probate of 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. But before the
second petition could be heard, the battle for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could produce the copies required for its
reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the
one destroyed, to which the oppositors filed an opposition based on the same grounds as those
contained in their former opposition. The court issued an order admitting the will to probate.

ISSUES: 1. W/N the probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself. (NO) 2. W/N the lower court erred in not holding that
Molo's will of 1918 was subsequently revoked by the decedent's will of 1939. (NO)

RULING: 1. The oppositors contend that the testator, after executing the 1939 will, and with full
knowledge of the recovatory clause contained said will, himself deliberately destroyed the
original of the 1918 will, and for that reason the will submitted by petitioner for probate in these
proceedings is only a duplicate of said original. There is no evidence which may directly indicate
that the testator deliberately destroyed the original of the 1918 will because of his knowledge of
the revocatory clause contained in the will he executed in 1939. Granting for the sake of
argument that the earlier will was voluntarily destroyed by the testator after the execution of the
second will, which revoked the first, could there be any doubt, under this theory, that said earlier
will was destroyed by the testator in the honest belief that it was no longer necessary because
he had expressly revoked it in his will of 1939? In other words, can we not say that the
destruction of the earlier will was but the necessary consequence of the testator's belief that the
revocatory clause contained in the subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the earlier will can still be admitted to
probate under the principle of "dependent relative revocation". 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 testator meant the revocation of the old to depend upon the efficacy of a new
disposition intended to be substituted, the revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the original will remains in full force. We hold
therefore, that even in the supposition that the destruction of the original will by the testator
could be presumed from the failure of the petitioner to produce it 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 mistaken belief that the will of 1939 has been validly executed and would be given due
effect. The theory on which this principle is predicated is that the testator did not intend to die
intestate. And this intention is clearly manifest when he executed two wills on two different
occasion and instituted his wife as his universal heir. There can therefore be no mistake as to
his intention of dying testate.LEGASPI. JUANA JUAN VDA. DE MOLO, Petitioner-appellee, -
versus- LUZ, GLICERIA and CORNELIO MOLO, Oppositors appellants. G.R. No. L-2538, EN
BANC, September 21, 1951, BAUTISTA ANGELO, J. 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 testator meant the revocation of the old to depend upon the efficacy of a new disposition
intended to be substituted, the revocation will be conditional and dependent upon the efficacy of
the new disposition; and if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full force. We hold therefore, that
even in the supposition that the destruction of the original will by the testator could be presumed
from the failure of the petitioner to produce it 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 mistaken belief that
the will of 1939 has been validly executed and would be given due effect. It is true that our law
on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or
other writing executed as proved in case of wills" but it cannot be said that the 1939 will should
be regarded, not as a will within the meaning of said word, but as "other writing executed as
provided in the case of wills", simply because it was denied probate. And even if it be regarded
as any other writing within the meaning of said clause, there is authority for holding that unless
said writing is admitted to probate, it cannot have the effect of revocation FACTS: Mariano Molo
y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without
leaving any forced heir either in the descending or ascending line. He was survived, however,
by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the
oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi
left two wills, one executed on August 17, 1918, and another executed on June 20, 1939. The
later will executed in 1918. On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of
First Instance of Rizal a petition docketed as special proceeding no.8022 seeking the probate of
the will executed by the deceased on June 20, 1939. There being no opposition, the will was
probated. However, upon petition filed by the herein oppositors, the order of the court admitting
the will to probate was set aside and the case was reopened. After hearing, at which both
parties presented their evidence, the court rendered decision denying the probate of said will on
the ground that the petitioner failed to prove that the same was executed in accordance with
law. In view of the disallowance of the will executed on June 20, 1939, the widow on February
24, 1944, filed another petition for the probate of the will executed by the deceased on August
17, 1918, which was docketed as special proceeding No. 56, in the same court. Again, the
same oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is
now estopped from seeking 2. The next contention of appellants refers to the revocatory clause
contained in 1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid and still has the
effect of nullifying the prior of 1918. A subsequent will, containing a clause revoking a previous
will, having been disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot
produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. It is
universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator who has not sufficient
mental capacity to make a will or the will is procured through undue influence, or the such, in
other words, where the second will is really no will, it does not revoke the first will or affect it in
any manner. It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that
a will may be some will, codicil, or other writing executed as proved in case of wills" but it cannot
be said that the 1939 will should be regarded, not as a will within the meaning of said word, but
as "other writing executed as provided in the case of wills", simply because it was denied
probate. And even if it be regarded as any other writing within the meaning of said clause, there
is authority for holding that unless said writing is admitted to probate, it cannot have the effect of
revocation.

13. NUGUID V NUGUID

SANCHEZ, J. Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though mentioned, are
neither instituted as heirs nor are expressly disinherited. In the case at bar, Rosario left no
descendants but left forced heirs in the direct ascending line, her parents. It must be noted that
the subject will completely omits both the mother and the father, thus, they were deprived of
their legitime. This is a clear case of preterition which rendered the will a complete nullity
considering that no specific legacies or bequests were provided for in the will. Rosario died
intestate. This is not a case of effective disinheritance as claimed by Remedios. Disinheritance
is a testamentary disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law. In the case at bar, the will does not explicitly disinherit Rosario’s
parents, the forced heirs.

FACTS: Rosario Nuguid died single and without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix and Paz, and 6 brothers and sisters, namely:
Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto. Remedios filed in the Court of
First Instance a holographic will allegedly executed by Rosario, 11 years before her demise for it
to be admitted to probate and for the letters of administration to be issued to her. Felix and Paz,
however, filed an opposition. They claimed that by the institution of Remedios as the universal
heir of Rosario, they, as the compulsory heirs in the direct ascending line, were illegally
preterited. As such, the institution is void. Remedios, on the other hand, believed that there is
effective disinheritance instead of preterition in this case. The court ruled in favor of the parents.

ISSUE: Whether the institution of Remedios preterited the compulsory heirs. (YES)

RULING: Article 854 of the Civil Code, in part, provides: The preterition or omission of one,
some, or all of the compulsory heirs in the direct line, whether living at the time of the execution
of the will or born after the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not inofficious. Preterition consists in the
omission in the testator's will of the forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, are neither instituted as heirs nor are expressly
disinherited. In the case at bar, Rosario left no descendants but left forced heirs in the direct
ascending line, her parents. It must be noted that the subject will completely omits both the
mother and the father, thus, they were deprived of their legitime. This is a clear case of
preterition which rendered the will a complete nullity considering that no specific legacies or
bequests were provided for in the will. Rosario died intestate. This is not a case of effective
disinheritance as claimed by Remedios. Disinheritance is a testamentary disposition depriving
any compulsory heir of his share in the legitime for a cause authorized by law. It is a voluntary
act, unlike preterition, supported by a legal cause specified in the will itself. In the case at bar,
the will does not explicitly disinherit Rosario’s parents, the forced heirs. It simply omits their
names altogether. It must be noted that the legacies and devises, under Article 854, merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854
suggests that the mere institution of a universal heir in a will would give the heir so instituted a
share in the inheritance. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the nullified institution of
heir. In the case at bar, there is no other provision in the will except the institution of Remedios
as universal heir. The disputed order declares the will in question "a complete nullity". Article
854 of the Civil Code, on the other hand, merely nullifies "the institution of heir". Considering,
however, that the will before us solely provides for the institution of Remedios as universal heir,
and nothing more, the result is the same. The entire will is null.
14. PECSON V CORONEL

ROMUALDEZ, J. The liberty to dispose of one’s estate by will when there are no forced heirs is
rendered sacred by the Civil Code in force in the Philippines since 1889. It is so provided article
763 in the following terms: Any person who has no forced heirs may dispose by will of all his
property or any part of it in favor of any persons qualified to acquire it. In the case at bar, the
Court finds nothing strange in the preterition made by Dolores of her blood relatives, nor in the
designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution of
the beneficiary here would not seem the most usual and customary, still this would not be null
per se contrary to what the responsents’ claim.

FACTS: The Court of First Instance probated the will of Dolores Coronel who named as her sole
heir Lorenzo Pecson, the husband of her niece, in consideration of the good services which the
latter has rendered. The relatives of Dolores by consanguinity questioned the genuineness of
the will on the following grounds: (a) that the proof does not show that it contains the last will of
Dolores, and (b) that the attestation clause is not in accordance with the provisions of section
618 of the Code of Civil Procedure, as amended by Act No. 2645. They argue that it was
improbable and exceptional that Dolores should dispose of her estate without considering her
blood relatives. Extraneous illegal influence must have been exerted against her as there is no
sufficient motive for such exclusion inasmuch as until her death, she maintained very cordial
relations with the aforesaid relatives. It appears, however, that Dolores suspects some of her
nephews as having been accomplices in a robbery of which she had been a victim.

ISSUE: Whether the decedent can exclude her blood relatives in the disposition of her estate.
(YES)

RULING: The liberty to dispose of one’s estate by will when there are no forced heirs is
rendered sacred by the Civil Code in force in the Philippines since 1889. It is so provided in
Article 763 in the following terms: “Any person who has no forced heirs may dispose by will of all
his property or any part of it in favor of any persons qualified to acquire it.”. In the case at bar,
the Court finds nothing strange in the preterition made by Dolores of her blood relatives, nor in
the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution
of the beneficiary here would not seem the most usual and customary, still, this would not be
null per se contrary to what the respondents’ claim. It must be noted that in the absence of any
statutory restriction, every person possesses absolute dominion over his property and he may
bestow it upon whomsoever he pleases without regard to natural or legal claim upon his bounty.
If the testator possesses the requisite capacity to make a will, and the disposition of his property
is not affected by fraud or undue influence, the will is not rendered invalid by the fact that it is
unnatural, unreasonable, or unjust. Nothing can prevent the testator from making a will as
eccentric, as injudicious, or as unjust as caprice, frivolity, or revenge can dictate. However, the
unreasonableness or injustice of a will may be considered on the question of testamentary
capacity. However, the testamentary capacity of Dolores is not disputed in this case. In any
case, in the case at bar, the preference given to Lorenzo Pecson is not purely arbitrary. The
proof adduced, although contradicted, shows by a preponderance of evidence that services had
been rendered to Dolores Coronel

15. Coso vs Fernandez

Law: Article 839. The will shall be disallowed in any of the following cases: (2) If the testator was
insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was
executed through force or under duress, or the influence of fear, or threats; (4) If it was procured
by undue and improper pressure and influence, on the part of the beneficiary or of some other
person;

Doctrine: Mere general or reasonable influence over a testator is not sufficient to invalidate a
will; to have that effect, the influence must be undue.

Facts: The testator is a married man and a resident of the Philippines. The testator had an illicit
affair with Rosario Lopez from 1898 to his death in 1919. They begot a son. The testator
(allegedly) executed a will which was presented for probate after his death. The will gives the
free portion (tercio de libre disposicion) to the illegitimate child of the testator with Rosario, and
payment or reimbursement for the expenses incurred by Rosario in taking care of the testator
during the years 1909-1916 when he was suffering from severe illness. CFI denied the probate
of the testator’s will on the ground of undue influence alleged to have been exerted over the
time of the testator by Rosario. There is no doubt that Rosario exercised some influence over
the testator.

Issue: WON the influence exercised was of such a character to vitiate the will

Held & Rationale: No. Mere general or reasonable influence over a testator is not sufficient to
invalidate a will; to have that effect, the influence must be undue. The rule as to what constitutes
undue influence has been variously stated, but the substance of the different statements is that,
to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and
subjugates the mind of the testator as to destroy his free agency and make him express the will
of another rather than his own. Such influence must be actually exerted on the mind of the
testator in regard to the execution of the will in question, either at the time of the execution of
the will, or so near thereto as to be still operative, with the object of procuring a will in favor of
particular parties, and it must result in the making of testamentary dispositions which the
testator would not otherwise have made. And while the same amount of influence may become
undue when exercise by one occupying an improper and adulterous relation to testator, the
mere fact that some influence is exercised by a person sustaining that relation does not
invalidate a will, unless it is further shown that the influence destroys the testator’s free agency.

The burden is upon the parties challenging the will to show that undue influence existed at the
time of its execution. While it is shown that the testator entertained strong affections for Rosario
Lopez, it does not appear that her influence so overpowered and subjugated his mind as to
destroy his free agency and make him express the will of another rather than his own. He was
an intelligent man, a lawyer by profession, appears to have known his own mind, and may well
have been actuated only by a legitimate sense of duty in making provisions for the welfare of his
illegitimate son and by a proper feeling of gratitude in repaying Rosario Lopez for the sacrifices
she had made for him. Mere affection, even if illegitimate, is not undue influence and does not
invalidate a will. Influence gained by kindness and affection will not be regarded as undue, if no
imposition or fraud be practiced, even though it induces the testator to make an unequal and
unjust disposition of his property in favor of those who have contributed to his comfort and
ministered to his wants, if such disposition is voluntarily made. Note/What’s wrong: The
beneficiary accused of exercising undue influence on the testator is a mistress of the testator.
Yet, the Court allowed the will, including the disposition in favor of the mistress. In the case of
Nepomuceno v Court of Appeals, supra, the Court invalidated a testamentary disposition in
favor of a mistress. A distinction between these two cases is therefore necessary.

16. Teotico v. Del Val

FACTS:

Maria Mortera died on July 1955 leaving properties worth P600,000. She executed a will written
in Spanish, affixed her signature and acknowledged before Notary Public by her and the
witnesses. Among the legacies made in the will was the P20,000 for Rene Teotico who was
married to the testatrix‟s niece, Josefina Mortera. The usufruct of Maria‟s interest in the Calvo
Building were left to the said spouses and the ownership thereof was left in equal parts to her
grandchildren, the legitimate children of said spouses. Josefina was likewise instituted, as sole
and universal heir to all the remainder of her properties not otherwise disposed by will. Vicente
Teotico filed a petition for the probate of the will but was opposed by Ana del Val Chan, claiming
that she was an adopted child of Francisca (deceased sister of Maria) and an acknowledged
natural child of Jose (deceased brother of Maria), that said will was not executed as required by
law and that Maria as physically and mentally incapable to execute the will at the time of its
execution and was executed under duress, threat, or influence of fear.

ISSUE:

Whether or not defendant has right to intervene in this proceeding.

RULING:

No. It is a well-settled rule that in order that a person may be allowed to intervene in a probate
proceeding is that he must have an interest in the estate, will or in the property to be affected by
either as executor or as a claimant of the estate and be benefited by such as an heir or one who
has a claim against it as creditor. Under the terms of the will, defendant has no right to intervene
because she has no such interest in the estate either as heir, executor or administrator because
it did not appear therein any provision designating her as heir/ legatee in any portion of the
estate. She could have acquired such right if she was a legal heir of the deceased but she is not
under the CIVIL CODE. Even if her allegations were true, the law does not give her any right to
succeed the estate of the deceased sister of both Jose and Francisca because being an
illegitimate child she is prohibited by law from succeeding to the legitimate relatives of her
natural father and that relationship established by adoption is limited solely to the adopter and
adopted and does not extend to the relatives of the adopting parents except only as expressly
provided by law. As a consequence, she is an heir of the adopter but not of the relatives of the
adopter. Hence, defendant has no right to intervene either as testamentary or as legal heir in
the probate proceeding.