Spcases.docx

G.R. No. L-3932

February 29, 1952

IN THE MATTER OF THE ESTATE OF THE LATE LEODEGARIA VILLANUEVA. ELISA CUISON, ET AL.,petitioners-appellants, vs. NICOLAS VILLANUEVA, ET AL., oppositors-appellees. FLAVIANO LACSON, judicial administrator. Hilado and Parreño, Parreño, Hizon and Arboleda for petitioner Manuel Cuison.

Hilado and

for Carreon

for

appellants. appellees.

MONTEMAYOR, J.: This case, originating in the Court of first Instance of Negros occidental, involves many facts, but only those necessary to the solution of the appeal will be stated and briefly they are, as follows: On February 14, 1939, Manuel Cuison filed in the Court of First Instance of Negros Occidental a petition for the probate of a document marked exhibit "A", said to be the last will and testament of Leodegaria Villanueva who died on December 14, 1938. The heirs instituted in said will were Reynaldo Cuison, a nephew of the testatrix and six minor children — Maria Dolores, Hernando, Leonardo, Angel, Maria Jimena and Telma, all surnamed Macasa, said to be grandnephews and nieces. Petitioner Manuel Cuison was appointed administrator and he qualified as such. The petition for probate was opposed by Nicolas Villanueva and others who claim to be relatives of the testatrix. On January 29, 1941, the lower court, presided over by Judge Sotero Rodas, dismissed the petition "por falta de gestion de solicitante." Upon motion of the petitioner the order of dismissal was reconsidered, the case reinstated and later, by order of November 28, 1941, the lower court denied the probate of the will and declared that the deceased Leodegaria Villanueva died intestate. Upon another motion for reconsideration filed by Manuel Cuison the order of denial of probate was reconsidered and Manuel Cuison was ordered to secure a transcript of the stenographic notes taken during the hearing of probate held on March 15, 1941. This order of reconsideration was dated December 6, 1941. One or two days later the Pacific war broke out. On December 16, 1948, the oppositor Nicolas Villanueva, et al., move for the definite dismissal of the petition for probate. By order of January 10, 1949, Judge Jose Teodoro, then presiding over the trial court, definitely denied the petition for probate. On January 22, 1949, petitioner Manuel Cuison moved for the reconsideration of the order of denial of the petition for probate. On August 16, 1949, Elisa, Ricardo, Josefina, Luis, Hermenigilda, all surnamed Cuison, for the first time, entered this case, claiming to be legitimate brothers and sisters of Reynaldo Cuison the nephew of the testatrix Leodegaria Villanueva instituted as one of the heirs in the will, exhibit "A". Further claiming that said Reynaldo Cuison died intestate on February 12, 1939, about two months after the death of the testatrix, they filed a petition for relief under Sections 2 and 3, Rule 38 of the Rules of Court, from the order January 10, 1949 definitely

denying probate of the will. The petitioners Elisa Cuison, et al., further claimed that Reynaldo Cuison, their brother, upon his death, left neither legitimate nor natural acknowledged children, consequently, his only heirs are the said petitioners and their brother Manuel Cuison. The petition for relief was based on the allegation that they had no actual knowledge of the order of January 10, 1949, denying the probate of the will, until the month of July, 1949; that up to the filing of the petition for relief, petitioners had never been direct or actual parties to the probate proceedings but they were constructive parties, since the proceedings were in rem and the order of the denial of probate would affect them as heirs of the legatee Reynaldo Cuison; that there non-appearance or participation in the probate proceedings may be regarded as excusable negligence; and that if they were given a chance, they would prove the validity and the due execution of the will in question and would present the instrumental witnesses. The trial court presided over by Judge Eduardo D. Enriquez, acting upon the petition, denied the same by order of February 18, 1950. However, instead of considering the merits of the petition for relief, Judge Enriquez based his order of denial on the ground that, pursuant to the provisions of Article 925 of the Civil Code, present petitioner have no right to represent their deceased brother, Reynaldo Cuison, in the inheritance of the testatrix Leodegaria Villanueva, consequently they have no interest in the will or the property involved and so have no personality to intervene in these proceedings by filing the petition for relief. It is from that order of February 18, 1950, denying the petition for relief, that the petitioners Elisa Cuison et al., are appealing. The trial court was right in holding that before any person may intervene in the proceedings for the probate of a will, he should show an interest in said will or the property affected thereby (Paras vs. Narciso, 35 Phil, 244). The lower court was equally right in holding that under Art. 925, paragraph 2, of the old Civil Code, the right of representation shall take place only infavor of children of brothers and sisters, which petitioners Elisa Cuison et al., are not. But said trial court erred in holding and assuming that petitioners Elisa Cuison et al., were invoking the right to represent their brother Reynaldo Cuison, for they were not. They seek to inherit the legacy of their brother provided for in the will for their own right and not in representation of their deceased brother. The law is clear that there is representation only when relatives of a deceased person try to succeed him in his rights which he would have had still living. In the present case, however, said deceased had already succeeded his aunt, the testatrix herein, and had acquired the right to the legacy given by her to him, upon for death, for the reason that under Arts. 657 and 65l of the Civil Code the rights to the succession of a person transmitted from the moment of his death and an heir succeeds to all rights and obligations of the decedent by the mere fact of the latter's death. It is a fact that the time of the death of the testatrix, Reynaldo Cuison was still alive. He died two months after her (testatrix's) death. And upon his death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the legacy or the right to succeed to the legacy, which he received by virtue of the will. In other words, the herein petitioners-appellants are not trying to succeed to the right to the property of the testatrix, but rather to the right of the legatee Reynaldo Cuison in said property. Inasmuch as the appellants as heirs of the legatee Reynaldo Cuison, clearly have an interest in the will or in the property affected by it, they had the right to intervene in the probate proceedings and to file the petition for relief under Rule 38 of the Rules of Court. The order appealed from is hereby set aside and this case is ordered remanded to the trial court for further proceedings, particularly to rule upon the petition for relief on the basis of its merits. No pronouncement as to costs. So ordered.

[G.R.

No.

27650.

December

24,

1927.]

Intestate estate of the late Florencia Diez. SEGUNDO DIEZ, Petitioner-Appellee, v. TOMAS SERRA for himself, and as guardian

of

the

minors

Mercedes,

Trinidad,

Arroyo

Jose,

Marcelino,

&

Hilado

Adriano

and

Felix

Serra,

Evangelista, &

opponent-appellant. for Appellant.

Hilado,

for Appellee.

SYLLABUS 1. INTESTATE PROCEEDINGS; JURISDICTION. — When a Court of First Instance declares itself with jurisdiction to act in the distribution of an estate, so far as it depends upon the place of residence of a person or the location of his estate, its jurisdiction cannot be contested except by an appeal in the original case, or when lack of jurisdiction appears in the record at the time the court declares itself with jurisdiction.

DECISION

VILLAMOR, J.:

On September 12, 1923, Segundo Diez applied to the Court of First Instance of Occidental Negros for letters of administration of the estate of the deceased Florencia Diez alleging that he is a brother of the said Florencia Diez, who died on August 21, 1921 in the municipality of Cadiz, Province of Occidental Negros, in which municipality she resided at the time of her death; that the deceased at the time of her death was a widow and left no will; that the deceased left realty consisting in a share of one-third of lots Nos. 465 and 490 of Cadiz cadastral case No. 26, more specifically described in the certificates of the office of the register of deeds of that province; that the deceased left seven children, as follows:chanrob1es virtual 1aw library Years Tomas Mercedes Trinidad Jose Marcelino

old Serra

y

Serra

y

Serra Serra Serra

Diez

y y

Diez

18

Diez

16

Diez y

21

Diez

14 17

Adriano

Serra

y

Diez

10

Felix Serra y Diez 7 That

the

deceased

Florencia

Diez’s

share

in

the

abovementioned

lots

is

assessed

at

P22,970.

On September 15, 1923, the court granted the application, ordering the appointment of Segundo Diez as administrator, upon his filing a bond in the sum of P5,000. The said bond was filed, and on May 7, 1924 Segundo Diez was appointed administrator. On October 7, 1924, he presented an inventory of the property under his administration. From then on the administration functioned until July 31, 1926, when Tomas Serra for himself and as guardian of his six minor brothers and sisters, the children of the deceased Florencia Diez, put in a special appearance, contesting that court’s authority to take cognizance of this intestate estate, on the ground that the deceased Florencia Diez resided in the municipality of San Joaquin, Province of Iloilo, at the time of her death, as evidenced by the death certificate, Exhibit A. The North Negros Sugar Co., Inc., filed an intervention in this case, as creditor of the intestate estate for a mortgage loan granted to the administrator, with the authorization of the court, maintaining the validity of these proceedings, and asking for the dismissal of the special appearance of Tomas Serra Et. Al. The

court

denied

the

petition

of

the

special

appearance.

Tomas Serra Et. Al. appealed from this decision and their counsel in this instance assigns the following errors as committed by the court below: (a) In finding itself competent and with jurisdiction to take cognizance of and act in this proceeding for the settlement of the intestate estate of the deceased Florencia Diez; (b) in not holding that the proceedings had herein are absolutely void ab initio because no evidence has been heard or introduced anent the facts alleged in the application, and particularly anent those concerning its own jurisdiction to take cognizance of this case; (c) in finding that the question set up by the herein petitioners as to the court’s jurisdiction is untimely and lacks the legal requisites for that purpose; (d) in holding that the herein appellants are now estopped from questioning the regularity and validity of its proceedings in this intestacy; (e) in permitting the North Negros Sugar Co., Inc., to intervene in the matter of the questioning of the court’s jurisdiction. The legal questions raised by this appeal relate to the jurisdiction of the court that granted the letters of administration of the estate of the deceased Florencia Diez, and to the challenge of such jurisdiction. Section 600 of the Code of Civil Procedure provides:jgc:chanrobles.com.ph "SEC. 600. Where resident’s estate settled. — If an inhabitant of the Philippine Islands dies, whether a citizen or alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death."cralaw virtua1aw library

According to the allegations of the application for letters of administration, the deceased Florencia Diez lived at Cadiz, Occidental Negros at the time of her death; it is therefore clear that the court a quo had jurisdiction to grant the letters of administration applied for. In order to render valid a grant of letters of administration the view is generally accepted that certain jurisdictional facts must exist. These facts are that the person on whose estate the letters are being granted is in fact dead, and that at the time of death he was a resident of the county wherein letters are being granted, or if not a resident that he left assets in such county. It has been said that the fact of the death of the intestate and of his residence within the county are foundation facts upon which all the subsequent proceedings in the administration of the estate rest, and that if the intestate was not an inhabitant of the state at the time of his death, and left no assets in the state, and none came into it afterwards, no jurisdiction is conferred on the court to grant letters of administration in any county. A probate court has jurisdiction to grant administration of the estate of a person who at the time of his decease was an inhabitant or resident in the county, without proof that he left an estate to be administered within the county. (11 R. C. L., par. 81.) Section 603 of the Code of Civil Procedure provides that the jurisdiction assumed by a Court of First Instance for the settlement of an estate, so far as it depends on the place of residence of a person, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the lack of jurisdiction appears in the record. In the present case the lack of jurisdiction did not appear in the record at the time when the court a quo that appointed the administrator found itself competent, and no appeal was taken from the order decreeing said appointment. This administration has functioned for two years, and the appellants after that period have appeared in this case, too late to avail themselves of the benefits offered by section 113 of the Code of Civil Procedure, and it would seem that the only remedy left to them is to ask for the reopening of the proceedings in the lower court that assumed jurisdiction. Without further need to discuss the other points raised by the appellants, the decision appealed from should be, as it is hereby, affirmed, without special pronouncement as to costs. So ordered. G.R. No. L-42226

July 26, 1935

In re estate of the JOAQUINA BASA, vs. ATILANO G. MERCADO, respondent-appellee. Briones and Jose Gutierrez David for appellee. GODDARD, J.:

deceased

Ines

Basa

ET

Martinez

for

de Mercado. AL., petitioners-appellants,

appellants.

By virtue of an order dated June 27, 1931, the Honorable Hermogenes Reyes, Judge of the Court of First Instance of Pampanga, allowed and probated the last will and testament of Ines Basa, deceased. On January 30, 1932, the same judge approved the account of the administrator of the estate, declared him the only heir of the deceased under the will and closed the administration proceedings. On April 11, 1934, the herein petitioners-appellants filed a motion in which they prayed that said proceedings be reopened and alleged that the court lacked jurisdiction to act in the matter because there was a failure to comply with requirements as to the publication of the notice of hearing prescribed in the following section of the Code of Civil Procedure: SEC. 630. Court to appoint hearing on will. — When a will is delivered to a court having jurisdiction of the same, the court shall appoint a time and place when all concerned may appear to contest the allowance of the will, and shall cause public notice thereof to be given by publication in such newspaper or newspapers as the court directs of general circulation in the province, three weeks successively, previous to the time appointed, and no will shall be allowed until such notice has been given. At the hearing all testimony shall be taken under oath, reduced to writing and signed by the witnesses. In this motion the appellants claim that the provisions of section 630 of the Code of Civil Procedure have not been complied with in view of the fact that although the trial judge, on May 29, 1931, ordered the publication of the required notice for "three weeks successively" previous to the time appointed for the hearing on the will, the first publication was on June 6, 1931, the third on June 20, 1931, and the hearing took place on the 27th of that month, only twenty-one days after the date of the first publication instead of three full weeks before the day set for the hearing. Section 630 of our Code of Civil Procedure is taken from the Code of Civil Procedure of the State of Vermont. The Supreme Court of that State, commenting on the phrase "three weeks successively", held: The date of examining and allowing P.A. Barlett's final account of administration, and for decreeing the residue of the estate to the lawful claimants of the same, was set by the probate court for December 19, 1919, at the probate office in Brighton, and an order was made to this effect on November 28, 1919. The order provided also that notice should be given by publication for three weeks successively in the Essex County Herald. In accordance with this order, the notice was published in the issues for December 4, 11 and 18, respectively. This was "public notice" to all persons interested of the time and place of examining and allowing said account and making decree of distribution, and was sufficient under the provisions of G.L. 3276. (Lenehen vs. Spaulding, 57 Vt., 115.) "The proceeding was according to law in all respects, and being in the nature of a proceeding in rem, it binds everybody by its legal effect." (Burbeck vs. Little, 50 Vt., 713.) At the time and place set for the hearing none of the petitioners or other legatees under the will of Nickerson Warner appeared. Thereupon the judge of probate then and there continued the hearing until April 6, 1920, at which time the final account of P.A .Barlett as administrator de bonis non with will annexed was filed and, no one appearing to object, the same was allowed, and the decree of distribution was entered. (In re Warner's Estate [Supreme Court of Vermont] 1925; 127 Atl. Rep., 362, 364; 98 Vt., 254, 261.) It will be noted that in the above cited case the last of the three publications was on December 18, 1919, and the hearing on the administrators's final account was set for December 19 of that year, only fifteen days after the date of the first publication.

In view of the foregoing, it is held that the language used in section 630 of the Code of Civil Procedure does not mean that the notice, referred to therein, should be published for three full weeks before the date set for the hearing on the will. In other words the first publication of the notice need not be made twenty-one days before the day appointed for the hearing. The appellants also contend that the trial court erred in ruling that the weekly newspaper, Ing Katipunan, in which the notice of hearing was published, was a newspaper of general circulation in the Province of Pampanga. The record shows that Ing Katipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made in Ing Katipunan precisely because it was a "newspaper of general circulation in the Province of Pampanga." Furthermore no attempt has been made to prove that it was a newspaper devoted to the interests or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. The fact that there is another paper published in Pampanga that has a few more subscribers (72 to be exact) and that certain Manila dailies also have a larger circulation in that province is unimportant. The law does not require that publication of the notice, referred to in the Code of Civil Procedure, should be made in the newspaper with the largest numbers is necessary to constitute a newspaper of general circulation. The assignments of error of the appellants are overruled and the appealed order of the trial court is affirmed with costs in this instance against the appellants. G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD vs. ILDEFONSO YAP, oppositor-appellee. Benedicto C. Belran, Arturo M. Tolentino for appellee.

Crispin

ESGUERRA

D.

ALTO-YAP

Baizas

and

deceased.

Roberto

FAUSTO

H.

E.

GAN, petitioner-appellant,

Benitez

for

appellant.

BENGZON, J.: On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951. Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod: Vicente Esguerra, .............................................

Sr. 5 Bahagi

Fausto E. Gan 2 Bahagi ......................................................... Rosario E. Gan 2 Bahagi ......................................................... Filomena Alto 1 Bahagi .......................................................... Beatriz Alto 1 Bahagi .............................................................. At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan. (Lagda) Felicidad E. Alto-Yap. 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 Hon. Ramon R. San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal. The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows: Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the

document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it. 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 Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time. 2 From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day. The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents 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 around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it. 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.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills. 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 indeed 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. The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.) 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. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). 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. Now, in the matter of 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." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the hands 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 so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who

also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. 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 authenticity3 — the testator's handwriting — has disappeared. Therefore, the question presents itself, 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? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed 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 law permit such a situation? 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. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) Could Rule 77 be extended, by analogy, to holographic wills? Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen 4 — an implied admission that such loss or theft renders it useless.. This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will 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. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." 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. Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them. We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del año, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . . 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.6 PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.) (According to the Fuero above, 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.7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555). 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.8 Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan. 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 admissible9 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.10 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.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will. 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. 6.11 Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with costs against petitioner. [G.R.

No.

L-6303.

June

30,

1954.

]

In the matter of the last will and testament of JOSE VAÑO, deceased. TEODORO VAÑO, Petitioner-Appellant, v. PAZ VAÑO VDA. DE GARCES, ET AL., Oppositors-Appellees. Pedro

Re.

Luspo,

Vicente

L.

Faelnar

and

Roque

R.

Luspo

for Appellant.

Pelaez, Pelaez & Pelaez and Ramon Duterte for Appellees.

SYLLABUS 1. WILLS, PROBATE OF; ISSUE IN CONTESTED WILLS; RULE IN THIS JURISDICTION — ISSUE IS FIXED BY RULES OF COURT; ISSUE MAY NOT BE VARIED BY PLEADINGS. — The rule in this jurisdiction is that the issue in contested wills is fixed by the Rules of Court, that is, before the probate court can allow the will it must be satisfied upon the proof taken and filed, that the will was duly executed and that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence, or fraud. This issue may not be varied by the pleadings. 2. ID.; ID.; EVIDENCE; OPPOSITOR MAY ADD OTHER GROUNDS AND SUBMIT EVIDENCE IN SUPPORT THEREOF. — An oppositor objecting to the probate of a will on one or two specific grounds may, during the hearing, add other grounds and submit evidence in support of the same. 3. ID.; ID.; ID.; SERVICE OF OPPOSITION TO ALL PERSONS INTERESTED PURPOSE OF. — The purpose of the law (section 10,

Rule 77 of the Rules of Court requiring a person contesting probate to state his ground of opposition and serve copy thereof to the petitioner and other residents of the province interested in the estate, is to appraise said persons of the reasons in opposing probate so that they may prepare the necessary evidence to counteract and disprove said grounds of opposition, this, in addition to apprising the court itself of the issued involved in the proceeding so that it may intelligently direct the presentation of evidence during the hearing. 4. ID.; ID.; ID.; FACTORS TO BE CONSIDERED IN DETERMINING GENUINENESS OF SIGNATURE OF TESTATOR. — When the genuineness of the testator’s signature is put in issue, his age, infirmity and state of health should be given due consideration. Where the testator, at the time the contested will was made, was 78 years old and suffering from apparently advanced pulmonary tuberculosis and rheumatism, it is natural that his signature should lack the firmness, rhythm, effort and continuity of motion that it had before he became quite ill and infirm. 5. ID.; ID.; ID.; CREDIBILITY OF WITNESSES. — Where the three subscribing witnesses to the will who were in no way related to the testator, had no interest in the execution of the will and stood to gain nothing by its probate, under oath assured the court that the testator voluntary signed the will, their disinterested testimony can no be taken lightly.

DECISION

MONTEMAYOR, J.:

This is an appeal by petitioner Teodoro Vano from a decision of the Court of First Instance of Cebu denying probate of the document (Exhibit "A"), said to be the LAST WILL AND TESTAMENT OF JOSE VANO. The appeal was first taken to the Court of Appeals where the record on appeal and the briefs of petitioner and oppositors were filed. Subsequently, however, on joint motion of both parties requesting that the appeal be elevated to the Supreme Court on the ground that the value of the properties involved as shown by the inventory was more than P50,000, the case was forwarded to this Tribunal where memoranda were filed in lieu of oral argument. Jose Vaño died on January 28, 1950, in the City of Cebu. According to the certificate of the City Health Officer and Local Civil Registrar, Exhibit "C", he was 78 years old and he died of P. T. B. (pulmonary tuberculosis). He left properties valued at P95,913.05 as per inventory of the administrator but which according to the evidence are worth much more. On February 11, 1950, Teodoro Ceblero Vaño petitioned the Court of First Instance of Cebu to have a document supposed to be the last will and testament of Jose Vaño, and which he attached to his petition, probated. We reproduce said document — "LAST IN

THIS

WILL NAME

OF

THE

FATHER,

THE

AND SON

AND

THE

HOLY

GHOST,

TESTAMENT AMEN:chanrob1es

virtual

1aw

library

I, Jose Vaño, single, Filipino citizen, of legal age and resident of Cebu City, being of sound and disposing mind and memory, do hereby

make, execute and publish, this my Last Will and Testament in English, which language is known to me and which I talk, read and understand, hereby revoking and cancelling any and all testamentary provisions heretofore made by me, and the following shall be my Last Will:chanrob1es virtual 1aw library 1.

I

2.

That

hereby I

make

known

hereby

to

bequeath

the to

world

that

aforesaid

Teodoro

Teodoro

Ceblero

Ceblero

Vaño

Vaño all

is

my

my

son.

properties.

In witness whereof, I have hereunto affixed my name at the City of Cebu, Philippines this 11th day of December, 1949. (Sgd.)

Jose

Vaño

Testator We, the undersigned attesting witnesses, whose residences are stated opposite our respective names, do hereby certify that the testator whose name is signed hereinabove, has published unto us the foregoing WILL consisting of one page, as his Last Will and Testament, and has signed the same in our presence, and in witness whereof we have each signed the same in the presence of said testator and in the presence of each other. Cebu

City,

Pedro O

Philippines,

C. Rama,

Nazario

R.

this —

Ceniza M. Paquiao

11th

—

494-B.

—

D. 553

day

P.

December,

1949.

Cebu

City

Junquera,

Basak, A.

of

Sn. del

Nicolas, Rosario,

Cebu St.,

Cebu

City City"

Teodoro asked that he be appointed administrator of the estate and that pending his appointment as regular administrator, he be designated special administrator. On March 24, 1950, Paz Vaño Vda. de Garces and the supposed heirs of Jesus Vaño, brother of Jose Vaño, filed the following opposition — "OPPOSITION Comes now Paz Vaño Vda. de Garces, and the heirs of Jesus Vaño, thru their undersigned attorneys, and to this Honorable Court respectfully states:chanrob1es virtual 1aw library 1. That the oppositor Paz Vaño Vda. de Garces is the sister of the deceased Jose Vaño, and Filomena Vaño, Felicidad Vaño, Angel

Vaño, Salvador Vaño, Norberto Vaño, Teodorico Vaño, and Ireneo Vaño, are the children and heirs of Jesus (brother of Jose Vaño), and all of them are entitled to participate in the said Estate of the deceased Jose Vaño in case of intestacy; 2. That the instrument now offered for probate as will of the deceased Jose Vaño was procured by undue and improper pressure and influence on the part of Teodoro Ceblero who is not an acknowledged natural child of the deceased Jose Vaño; 3.

That

the

said

Jose

Vaño

was

mentally

incapable

to

make

a

will

on

December

11th,

1949;

4. That the signature of the testator Jose Vaño was procured by fraud and trick on the part of Teodoro Ceblero and the said deceased Jose Vaño never intended that the said document should be his will at the time of fixing his signature thereto; 5. That the instrument now offered for probate as will of the deceased Jose Vaño is written in English language which is not the usual and proper language of the deceased, and if the deceased would have had made any will he should have it written in Spanish; 6. That the said deceased Jose Vaño never recognized Teodoro Ceblero as his acknowledged natural child, the same being a mere protege of the deceased, and not an adopted or acknowledged natural child; 7. That the deceased Jose Vaño had time and again told his sister and nephews that he will not execute a will because he wants to leave all his estate in favor of his brother and sister, and nephews; 8. That Dolores Garces de Falcon, a niece of the deceased Jose Vaño, being the nearest of kin, is a competent person to act as Administratrix of the estate of the deceased, and she is willing to serve as such; PRAYER For all the foregoing considerations, we respectfully pray this Honorable Court that the said will of the deceased Jose Vaño be declared null and void, and that it be not admitted to probate; That an administratrix of the said estate be appointed who shall distribute the same among the legal heirs of the deceased; That Dolores Garces de Falcon be appointed as Administratrix of the Estate of the deceased Jose Vaño. Cebu

City,

Philippines,

March

23,

1950."cralaw

virtua1aw

library

On August 29, 1950, Ireneo Vaño one of the persons included in the opposition, filed a motion of the following, tenor. "MOTION Comes 1.

now That

Ireneo he

Vaño is

and the

to son

this

Honorable and

only

Court

respectfully

heir

of

states:chanrob1es Jesus

Vaño,

virtual now

1aw

library

deceased.

2.

That

his

father

Jesus

Vaño

is

a

brother

of

Jose

Vaño,

also

deceased.

3. That in this case a petition has been presented for the probate of the last will and testament of Jose Vaño. 4. 5.

That That

an he

opposition is

named

has as

one

been of

filed the

against

oppositors,

the without

probate his

of

knowledge

said and

will. consent.

6. That he does not oppose nor intends to oppose the probate of the will in question, because that document contains a true expression of the wish and desire of Jose Vaño as to who shall inherit his property. 7.

That

he

has

not

authorized

anybody

to

file

an

opposition

in

his

name.

PRAYER Wherefore, the undersigned respectfully prays this Honorable Court to cancel his name from the list of oppositors mentioned in the opposition to the petition filed by Teodoro Vaño. Tagbilaran,

Bohol

(for

the

City

of

Cebu),

August

8,

1950."cralaw

virtua1aw

library

Said motion of Ireneo Vaño was granted by the Court. In the course of the hearing, he was presented as one of the witnesses for petitioner Teodoro and he declared that he was the son of Jesus Vaño, already dead; that he knew Filomena Falcon, Felicidad Calibo, Angel Falcon, Salvador Flores, Norberto Calibo, and Teodorico Falcon, who are sometimes known by the surname Vaño but that they were not related to him because he had no brothers or sisters; that his father Jesus Vaño was a younger brother of the testator Jose Vaño; that petitioner Teodoro Vaño was the cousin, son of Jose Vaño, and that he knew of the blood relationship between the testator and Teodoro Vaño because he (Ireneo) since childhood used to go to his uncle’s house where Teodoro lived and he saw that Teodoro was treated as a son by Jose Vaño, who paid for Teodoro’s board at the Colegio del Niño where the two of them were students; that he (Ireneo) never authorized anyone to include him as oppositor to the probate of the will of Jose Vaño and that he did not oppose its probate. The three attesting witnesses Pedro Ceniza, Dr. Osmundo Rama and Atty. Nazario Pacquiao testified for the petitioner and assured the court that Exhibit "A" was the last will and testament of the late Jose Vaño; that he signed Exhibit "A" in their presence, and that each of them signed the same after him, in his presence and in the presence of each other; that at the time of the execution of the document in the afternoon of December 11, 1949, the testator was of sound and disposing mind and memory and that it was his voluntary act, no pressure or influence having been exerted on him; that the blank space after the letter "I" in the first paragraph of Exhibit "A" was filled out by the testator himself although they (witnesses) differ as to who filled out the blank spaces on the document where the words "11th" and "December" appear. Atty. Pacquiao told the court that it was he who prepared the will (Exhibit A) pursuant to the wishes of the testator.

For the opposition Ciriaca Alse who formerly worked as a servant in the household of Teodoro Vaño, Dolores Garces de Falcon, a daughter of Paz Vaño Vda. de Garces and Carmen Vallore testified. The burden of their testimony is that from November 1949, Jose Vaño was already very sick; that in December he was in serious if not critical condition; that he was always in bed, oftentimes unable to move or open his eyes and he could not maintain any conversation with anyone; that he had to be fed by someone; and that he was bedridden and already had bed- sores. The idea sought to be conveyed by them was that the testator was in no condition to execute a will. Mr. Edgar Bond, an examiner of questioned documents and chief of the Questioned Documents and Ballistics Division of the National Bureau of Investigation was also presented by the opposition as a handwriting expert and he told the court that after examining the supposed signature of Jose Vaño on Exhibit "A" and comparing them with his accepted standard signatures, he was convinced that the signatures on Exhibit "A" were forgeries. His testimony was vigorously objected to by counsel for the petitioner on the ground that the genuineness of the signature of the testator on Exhibit "A" was never placed in issue because the written opposition of the opponents virtually admitted said genuineness and merely claimed that the will was not the testator’s voluntary act because said signature was obtained thru trickery and that undue pressure and influence were brought to bear upon him. To counteract the testimony of Bond, the deposition of Dr. Paul Rodriguez Versoza, another handwriting expert was taken and introduced in evidence. Dr. Versoza claims that after examining the signatures of Jose Vaño on Exhibit "A" and comparing them with accepted standard signatures of the testator, he was convinced that the signatures on Exhibit "A" were genuine and that any difference noted between them were due to the age, weakness, and illness of the testator, especially the fact that he was suffering from rheumatism. After hearing, the learned trial court noting discrepancies in the testimonies of the three attesting witnesses as to the due execution of Exhibit "A", and accepting the expert testimony of Mr. Bond over that of Dr. Versoza, came to the conclusion that the supposed signatures of Jose Vaño on Exhibit "A" are not genuine but imitated and held that Exhibit "A" was not the last will and testament of Jose Vaño. One of the errors assigned by petitioner-appellant is that the trial court erred in permitting appellees over the objection of appellant to present evidence which are contrary to their allegations in their opposition. It is his contention that the opponents not only failed to allege as a basis of their opposition that the signatures of the testator on the supposed will were forged but that on the contrary, they impliedly admitted the genuineness of said signatures, merely claiming that said signatures were obtained through trickery and fraud and under undue pressure and influence. This point brings us to a discussion of what evidence an opponent to a probate of a will may be permitted to present at the hearing — whether or not he is limited to presenting evidence to sustain the particular objection or ground on which he bases his opposition to the probate. In some jurisdictions in the United States the rule is that the issue in contested wills is made up by the pleadings or framed from the same, and no evidence can be introduced except in support of allegations contained in such pleadings. For instance, if the only opposition to the probate of a will is lack of mental capacity of the testator, then the oppositor in presenting evidence will be confined to that point. In other jurisdictions, however, it is said that the issue is fixed by the statute and is practically the old common law issue "devisavit vel non," is the instrument presented for probate the last will and testament of the testator?; that said issue may not be varied by the pleadings and that every ground of attack on the validity of the will may be employed. As the law in our jurisdiction on the probate of wills now stands, we are inclined to adopt the second view, namely, that the law itself fixes or determines the issue, because under section 12, Rule 77, of the Rules of Court, before the probate court can allow the will it must be

satisfied upon proof taken and filed that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence, or fraud. Also, under section 9 of the same rule, a will may be disallowed (a) if not executed and attested as required by law; (b) if the testator was mentally incapable of making a will; (c) if it was executed under duress, or the influence of fear, or threats; (d) if it was procured by undue and improper pressure and influence on the part of the beneficiary; and (e) if the signature of the testator was procured by fraud and trick. The oppositors in the present case therefore were not precluded from attacking the will on the ground of forgery despite the fact that their opposition was confined to grounds (b), (c) and (d) of section 12, Rule 77 as stated above. On the other hand, section 10 of the same rule 77 provides that "anyone appearing to contest the will must file a writing stating his grounds for opposing its allowance; and serve a copy thereof on the petitioner and other residents of the province interested in the estate." The purpose of this legal provision is clear, and it is to apprise the person or persons seeking the probate of will, as well as any other person interested in the estate, of the reasons in opposing probate so that they may prepare the necessary evidence to counteract and disprove said ground of opposition, this, in addition to apprising the court itself of the issue involved in the proceedings so that it may intelligently direct the presentation of evidence during the hearing. Of course, as we have already stated, an oppositor objecting to the probate of the will on one or two specific grounds may, during the hearing add to the grounds and submit evidence in support of the same, but when this happen as it did in the present case, one is more or less justified in inferring that the oppositors were not sure of their ground; that they were in doubt as to the basis of their opposition, a fact which naturally and not inconsiderably weakens their stand. One of the grounds of their opposition was that the signature of the testator was procured by fraud and trick, thereby leading one to believe, including the court and the petitioner that said signature was genuine but was not valid. At the hearing, said oppositors completely changed their stand and claimed that the signature was actually forged. As we have already said, that conduct and attitude, changeable and uncertain, does not strengthen their position. Let us now go to the evidence on the alleged forgery of the signatures of the testator Jose Vaño. We have carefully read the testimony of Mr. Bond for the oppositors and the deposition of Dr. Verzosa for the petitioner. There is no reason for doubting the qualifications, sincerity, and honesty of these two witnesses. Their opinions seem to be plausible, arrived at after an analysis and comparison of the questioned signatures with the standard and accepted signatures of the testator; but we fear that the infirmity, age, and state of health of the testator had not been given due consideration by the witness of the opponents and by the court. There is no question that there are differences and discrepancies between the two signatures reading "Jose Vaño" on Exhibit "A" and the genuine, accepted signatures of the testator even as late as the last part of the year 1949. But we should not forget that on December 11th of the same year when he executed Exhibit "A", he was suffering from apparently advanced pulmonary tuberculosis as well as rheumatism which according to Dr. Osmundo Rama who had been treating him until the day he died, affected his joints. The testator was then 78 years old, lying in bed most of the time, so much so that he developed bed-sores, sitting up in bed only once in a while, and at those times, his hands trembled. It is natural that his signatures on Exhibit "A" should lack the firmness, rhythm, lack of effort and continuity of motion that they had before he became quite ill and infirm. Examining the signatures on Exhibit "A", the original of the will, and those on "3- A", a carbon copy thereof, it will be readily observed that while the signatures on the original are already infirm, rough and jagged, suggesting a hand infirm and trembling, those on the duplicate (Exhibit "3-A") are still more so, showing the effects of the concentration of attention, exertion and effort of the testator in reading and signing the original. But there are other and equally important considerations which favor the conclusion that Exhibit "A" was duly signed and executed by the

testator. As already stated, in their written opposition the opponents did not question but on the contrary, assumed if not conceded the genuineness of the signatures of the testator. Then at the hearing, they changed their attitude and for the first time put in issue the genuineness of said signatures; this despite the fact that the original of the will (Exhibit "A") was filed in court on February 11, 1950, and the opposition was filed on March 24th of the same year. In other words the opponents and their lawyers had almost one and a half months within which to examine and scrutinize the signatures on Exhibit "A", after which examination they did not doubt their genuineness. Again, the opponents included Ireneo Vaño, a son of Jesus Vaño, brother of the testator, among the oppositors. This same Irineo later filed a motion in court repudiating the action taken by the opponents, saying that he was included among the oppositors without his knowledge or consent; that far from opposing the probate of the will of his uncle, he believed that said will was a true expression of the wish and desire of the testator. Not only this, but he testified for the petitioner and said that the petitioner Teodoro Vaño was the son of the testator and had been treated by him as such since childhood. The learned trial court lays emphasis on the uncertainty of the three subscribing witnesses as to who filled out the blank spaces on the will now occupied by the words "11th" and "December", while they are sure that the name Jose Vaño on the space at the beginning of the first paragraph was written by the testator himself. Said uncertainty on the part of the said three subscribing witnesses instead of affecting their veracity, in our opinion, strengthens it, because it refers to a minor detail and shows that they had not been rehearsed but on the contrary, testified to what they remembered. In this connection, there is every reason to believe that the fact that the space for the name Jose Vaño on Exhibit "A" was left in blank to be filled out later by the testator himself argues against the theory of forgery, because if there had been forgery, by leaving the blank space for the name of the testator to be filled out later, including the space for the date and the month, the forgers would be laying themselves open and unnecessarily creating an additional opportunity for the opponents and for the court to detect the forgery. After all, there was neither necessity nor occasion for forging the signatures of the testator in the will because there is every reason to believe that said testator would leave all his property to petitioner Teodoro Vaño. The evidence shows that Teodoro was a natural son of the testator. From childhood he had been raised by Jose Vaño, treated like a son, and sent to school, and even after Teodoro had married, he and his wife and family continued to live with the old man, or rather, the old man lived with them. Jose Vaño in 1945, in a public instrument entitled "Special Power of Attorney" (Exhibit "E") referred to Teodoro Vaño as his son and appointed him as his attorney- infact to lease to the United States of America any, some or all real properties owned by him in the City of Cebu, under such terms and conditions which Teodoro may deem just and reasonable, and to execute and sign the corresponding deeds of lease, and to collect and receive the rents. This was accepted and acted upon by Teodoro Vaño. In 1946 and 1947 the testator appointed Teodoro his attorneyin-fact giving him a power of attorney with extensive powers such as to lease to the Republic of the Philippines some of his real and personal properties in the City of Cebu, and to collect and receive the rentals accruing from the leased properties; to ask, demand, sue for, recover, and collect any and all sums of money, debts, dues, accounts, legacies, bequests, interests, dividends, etc. which thereafter become due or owing to him and to make, sign, execute, and deliver contracts, documents, agreements, and other writings of whatever nature with any and all third persons upon terms and conditions acceptable to him (Teodoro), Exhibits "F" and "G." In 1946 while the testator was in Bohol, he wrote to Teodoro a note (Exhibit "I") addressing him as his "dear son" and with the complimentary clause "your loving Dad", signing the same, asking Teodoro to send P5,000 to him. It seems that at least in Cebu and Bohol petitioner Teodoro Vaño was known by everyone to be the son of Jose Vaño because the latter had treated and accepted, even recognized him as such, and

shortly before his death, entrusted him with the complete management of his business. One of the witnesses for the opposition, Carmen Vallore, cousin-in-law of the testator, in her testimony called Milagros Vaño, wife of Teodoro Vaño, as the daughter-in-law of Jose Vaño, meaning that Teodoro was the son of the testator. During the hearing and while Teodoro Vaño was testifying, counsel for the oppositors repeatedly referred to the testator as his (Teodoro’s) father. Under all these circumstances, is it any wonder that Jose Vaño should voluntarily by means of a will, leave all his properties to his only son, though natural? It is not improbable that one of the reasons prompting the filing of the opposition to the petition for probate was that Paz Vaño Vda. de Garces, sister of the testator, could not understand why her brother, a wealthy man should leave all his wealth to a mere natural son (Teodoro) and leave nothing to her; but it was not altogether strange because it seems that the relations between Paz and the testator, were rather strained and in 1949, according to the evidence, Paz had brought a civil action against Jose Vaño and Irineo Vaño, the nephew of Jose Vaño who refused to oppose the probate of the will. And during the last and prolonged illness of the testator, Paz, living in the same city of Cebu, did not even once visit her ailing and bedridden brother. The three subscribing witnesses to the will, under oath assured the court that Jose Vaño voluntarily signed Exhibit "A", and these three witnesses were in no way related to Teodoro or to the testator, had no interest in the execution of the will and stood to gain nothing by its probate. Pedro Ceniza is a responsible businessman, Dr. Osmundo Rama, is a practising physician and Atty. Nazario Pacquio, is a member of the bar and at the time he prepared Exhibit "A", he was Assistant Provincial Fiscal of Cebu. Their disinterested testimony cannot be taken lightly. On this question of the weight to be given to the testimony of subscribing witnesses, we held in the case of Roxas v. Roxas, Et Al., 48 Off. Gaz. (6) 2177; 87 Phil. 692, that — "We do not venture to impute bias to the experts introduced during the trial but we hasten to state that the positive testimony of the three attesting witnesses ought to prevail over the expert opinions which cannot be mathematically precise but which, on the contrary are ’subject to inherent infirmities.’ "The law impliedly recognizes the almost conclusive weight of the testimony of attesting witnesses when it provides that ’if the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence or insanity of any one of them must be satisfactorily shown to the Court.’ (Section 11, Rule 77, Rules of Court.)" In the present case, the opinions of the two handwriting experts presented by the parties are conflicting and even assuming that there is doubt to our mind as to which of the two is to be accepted, the positive and clear testimony of the three subscribing witnesses should prevail. In the case of In re Will of Medina, 60 Phil., 391, this Court said:jgc:chanrobles.com.ph "In the present case, two of the subscribing witnesses are lawyers. This fact together with the circumstance that they were not shown to have any interest in the subject of the litigation, lead the trial court to consider their testimony as worthy of credit. The intervention of professional men specially lawyers, in the preparation and execution of wills, has been given by this Court the consideration deserved."cralaw virtua1aw library Reiterating the doctrine laid down in the case of Sotelo v. Luzan, 59 Phil., 908, we further held in the same case:jgc:chanrobles.com.ph

"In one case it was said: ’It is hardly conceivable that any attorney of any standing would risk his professional reputation by falsifying a will and then go before a court and give false testimony.’" There is no reason to believe that Atty. Pacquio who, at the time was not only a member of the bar but was an assistant provincial fiscal, should commit forgery by drafting Exhibit "A" and take part in forging the signature of the testator and later falsely testify in court on the due execution of said will and subject himself not only to criminal prosecution and dismissal from his post as assistant provincial fiscal, but also to disbarment proceedings. In view of the foregoing, the decision appealed from is reversed and Exhibit "A" is hereby allowed probate as the Last Will and Testament of Jose Vaño, with costs against appellees. G.R. No. L-24819

May 30, 1969

TESTATE ESTATE OF CATALINA DE vs. PEDRO DE LA CRUZ, ET AL., oppositors-appellants.

LA

CRUZ,

deceased,

Avelino Pascual Raul Manglapus and Feria, Feria, Lugtu and La'O for oppositors-appellants.

for

ANDRES

PASCUAL, petitioner-appellee,

petitioner-appellee.

REYES, J.B.L., J.: This is an appeal from the decision of the Court of First Instance of Rizal (in Sp. Proc. No. 3312) admitting to probate the purported will of Catalina de la Cruz. On 2 January 1960, Catalina de la Cruz, single and without any surviving descendant or ascendant, died at the age of 89 in her residence at San Roque, Navotas, Rizal. On 14 January 1960, a petition for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual, who was named in the said will as executor and sole heir of the decedent. 1 Opposing the petition, Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la Cruz contested the validity of the will on the grounds that the formalities required by law were not complied with; that the testatrix was mentally incapable of disposing of her properties by will at the time of its execution; that the will was procured by undue and improper pressure and influence on the part of the petitioner; and that the signature of the testatrix was obtained through fraud. After hearing, during which the parties presented their respective evidences, the probate court rendered judgment upholding the due execution of the will, and, as therein provided, appointed petitioner Andres Pascual executor and administrator of the estate of the late Catalina de la Cruz without bond. The oppositors appealed directly to the Court, the properties involved being valued at more than P300,000.00, raising only the issue of the due execution of the will.

In this instance, oppositors-appellees claim that the lower court erred in giving credence to the testimonies of the subscribing witnesses and the notary that the will was duly executed, notwithstanding the existence of inconsistencies and contradictions in the testimonies, and in disregarding their evidence that the will was not signed by all the witnesses in the presence of one another, in violation of the requirement of the law. On this point, the lower court said: Regarding the alleged contradictions and inconsistencies in the testimony of the three attesting witnesses and of the Notary Public, some of which have been enumerated in the Memorandum of Oppositors' counsel, this Court has taken pains in noting said inconsistencies but found the same not substantial in nature sufficient to discredit their entire testimony on the due execution of Exhibit "D". It is to be noted that Exhibit "D" was signed in 1954 and that the attesting witnesses testified in Court in 1962 or after a lapse of eight years from the date of the signing of the document. It is, therefore, understandable and reasonable to expect that said witnesses will not retain a vivid picture of the details surrounding the execution and signing of the will of Catalina de la Cruz. What is important and essential is that there be unanimity and certainty in their testimony regarding the identity of the signatures of the testatrix, the attesting witnesses, and the Notary Public, and the fact that they were all present at the time those signatures were affixed on the document Exhibit "D". .... In this jurisdiction, it is the observed rule that, where a will is contested, the subscribing with are generally regarded as the best qualified to testify on its due execution. However, it is similarly recognized that for the testimony of such witnesses to be entitled to full credit, it must be reasonable and unbiased, and not overcome by competent evidence, direct or circumstantial. 2 For it must be remembered that the law does not simply require the presence of three instrumental witnesses; it demands that the witnesses be credible. 3 In connection with the issue under consideration, we agree with the trial judge that the contradictions and inconsistencies appearing in the testimonies of the witnesses and the notary, pointed out by the oppositors-appellants (such as the weather condition at the time the will was executed; the sequence of the signing by the witnesses; and the length of time it took to complete the act), relate to unimportant details of the impressions of the witnesses about certain details which could have been affected by the lapse of time and the treachery of human memory, and which inconsistencies, by themselves, would not alter the probative value of their testimonies on the due execution of the will [cf. Peo. vs. Sigue, 86 Phil. 139-140 (3 years interval)]. In Estate of Javellana vs. Javellana, L-13781, 30 January 1960, 106 Phil. 1076, this Court ruled: For the purpose of determining the due execution of a will, it is not necessary that the instrumental witnesses should give an accurate and detailed account of the proceeding, such as recalling the order of the signing of the document by the said witnesses. It is sufficient that they have seen or at least were so situated at the moment that they could have seen each other sign, had they wanted to do so. In fact, in the instant case, at least two witnesses, ... both testified that the testator and the 3 witnesses signed in the presence of each and every one of them (Jaboneta vs. Gustilo, 5 Phil. 451; Neyra vs. Neyra, 42 Off. Gaz. 2817; Fernandez vs. Tantoco, 49 Phil. 380.). Neither do we believe that the fact that the witnesses were better known to proponent Andres Pascual than to the testatrix suffices to render their testimony suspect. Under the circumstances, considering the admitted fact that when the will was executed (1954) the testatrix was already 83 years old, suffering from rheumatism to the extent that she had to wear thick socks and soft shoes, it did not

unlikely that she should have entrusted the task of requesting them to act as witnesses to Andres Pascual himself, albeit the said witnesses, testifying eight years later, should have stated that they were asked by Catalina to witness her testament. The error of recall, considering the eight-year interval, is consonant with the well known vagaries of human memory and recollection, particularly since the main detail that must have stuck in his minds is that they did witness the signing of the will, upon which their attention must have principally concentrated. That they did so is attested by their signatures and those of the deceased testatrix, which are nowhere impugned; nor is there any claim by appellants that the latter was incapable of reading and understanding the will that she signed. In fact, the evidence is that she did read it before signing. The authorities are to the effect that friendly relations of the witnesses with the testator or the beneficiaries do not affect the credibility of the former, 4 so that the proven friendship between the proponent and the instrumental witnesses would have no bearing on the latter's qualification to testify on the circumstances surrounding the signing of the will. Appellant's main reliance is the alleged tape recording of a conversation between instrumental witness Manuel Jiongco and oppositor Pedro B. Cruz at the latter's house sometime in 1960 (which recording was admittedly taken without Jiongco's knowledge) wherein said witness is supposed to have stated that when he signed the will the other witnesses' signatures were already affixed, and were not then present, and that he (Jiongco) signed the document in 1958 or 1959 (Exhibit 22; transcription; Exhibit 23 et. seq.). There are two circumstances that militate against giving credence to particular evidence. The first is that there is no adequate proof that the declarations tape recorded were in fact made by Jiongco. The latter denied that the voice was his, and in this respect the trial judge stated (Record on Appeal, pages 83-84): We do not doubt the fact that Manuel Jiongco was in the house of Pedro Cruzon the occasion that Exhibit "23" was taken. But it is important to note that when said recording was replayed before Manuel Jiongco in Court he denied that the voice which uttered the above-quoted portions in the conversation was his. So that with the denial of Manuel Jiongco, the Court was left with no other recourse than to make its own comparison between the natural voice of the witness, Manuel Jiongco, while testifying on the witness stand and his supposed recorded voice in Exhibit "23". It is to be admitted that we noted some similarity between the two voices but it was not enough to justify a categorical and definite conclusion that the recorded voice identified by Pedro Cruz to be that of Manuel Jiongco is in truth and in fact the voice of the latter. Between a testimony given in Court under oath which was subjected to and stood of rigorous crossexamination and loose statements made out of Court which even then are of doubtful source, this Court gives full faith and credence to the former. And this is true even if this particular witness admits having a poor memory, and his trustworthiness is assailed due to a previous record of an administrative case filed against him wherein he was fined for a charge of falsification of public document (see Exh. "25"). This is so, because the veracity of his testimony in Court regarding the due execution of Exhibit "D" is corroborated and confirmed by the testimony of the two other attesting witnesses to the document and the Notary Public who notarized the same. Not having heard Jiongco testify, this court is not in a position to contradict the appreciation of the trial court that the voice in the tape recording was not really that of Jiongco. And considering that he denied that fact under oath, that the tape recording was not supported by truly impartial evidence, and was done without the knowledge of the witness, we cannot see our way clear to rule that Jiongco has been successfully impeached, and shown guilty of false testimony. It would be dangerous to rule otherwise.

The second point that renders incredible the alleged assertion of Jiongco in the tape recording, that he signed the testament only in 1958 or 1959, is that in the Notarial Registry of the notary, Gatdula, the ratification of the testament appears among the entries for 1954, as well as in the corresponding copies (Exhibit I) filed by him with Bonifacio Sumulong, the employee in charge of the Notarial Section of the Clerk of Court's office, who produced them at the trial upon subpoena, and who testified to his having searched for and found them in the vaults of the Clerk of Court's office. No evidence exists that these documents were not surrendered and filed at the Clerk of Court's office, as required by law, and in the regular course of official duty. Certainly, the notary could not have reported in 1954 what did not happen until 1958. In view of the evidence, we do not feel justified in concluding that the trial court erred in accepting the concordant testimony of the instrumental witnesses as warranting the probate of the will in question, taking into account the unexcelled opportunity of the court a quo to observe the demeanor, and judge the credibility, of the witness thereby. Furthermore, it would not be the first time in this jurisdiction that a will has been admitted to probate even if the instrumental witness testified contrary to the other two, provided the court is satisfied, as in this case, that the will was executed and attested in the manner provided by law (Fernandez vs. Tantoco, 49 Phil. 380; Tolentino vs. Francisco, 57 Phil. 742; Cuyugan vs. Baron, 69 Phil. 639; Ramirez vs. Butte, 100 Phil 635). There is greater reason to admit the will to probate where only the testimony of one witness is subjected to serious, if unsuccessful attack. Contestants further assail the admission to probate on the ground that the execution of the will was tainted by fraud and undue influence exerted by proponent on the testarix, and affirm that it was error for the lower court to have rejected their claim. Said the court in this regard (Record on Appeal, page 87): It is a settled rule in this jurisdiction that the mere fact that a Will was made in favor of a stranger is not in itself proof that the same was obtained through fraud and undue pressure or influence, for we have numerous instances where strangers are preferred to blood relatives in the institution of heirs. But in the case at bar, Andres Pascual, although not related by blood to the deceased Catalina de la Cruz, was definitely not a stranger to the latter for she considered him as her own son. As a matter of fact it was not only Catalina de la Cruz who loved and cared for Andres Pascual but also her sisters held him with affection so much so that Catalina's sister, Florentina Cruz, made him also her sole heir to her property in her Will without any objection from Catalina and Valentina Cruz. Before considering the correctness of these findings, it is worthwhile to recall the basic principles on undue pressure and influence as laid down by the jurisprudence of this Court: 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 (Coso vs. Fernandez Deza, 42 Phil. 596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico vs. Del Val, L-18753, 26 March 196); that the contention that a will was obtained by undue influence or improper pressure cannot be sustained on mere conjecture or suspicion, as it is enough that there was opportunity to exercise undue influence, or a possibility that it may have been exercised (Ozaeta vs. Cuartero, L-5597, 31 May 1956); that the exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised (Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L-18753, 26 March 1965); that the burden is on the person challenging the will to show that such influence was exerted at the time of its execution (Teotico vs. Del Val, ante); that mere general or reasonable influence is not sufficient to invalidate a will (Coso vs. Fernandez Deza, ante); nor is moderate and reasonable solicitation and entreaty

addressed to the testator (Barreto vs. Reyes, L-5831-31, 31 January 1956), or omission of relatives, not forced heirs, evidence of undue influence (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 416). Tested against these rulings, the circumstances marshalled by the contestants certainly fail to establish actual undue influence or improper pressure exercised on the testarix by the proponent. Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased "did not like to sign anything unless I knew it" (t.s.n., page 7, 27 January 1962), which does not amount to proof that she would sign anything that proponent desired. On the contrary, the evidence of contestants-appellants, that proponent purchased a building in Manila for the testarix, placed the title in his name, but caused the name "Catalina de la Cruz" to be painted thereon in bold letters to mislead the deceased, even if true, demonstrates that proponent's influence was not such as to overpower to destroy the free will of the testarix. Because if the mind of the latter were really subjugated by him to the extent pictured by the contestants, then proponent had no need to recourse to the deception averred.lawphi1.ñet Nor is the fact that it was proponent, and not the testarix, who asked Dr. Sanchez to be one of the instrumental witnesses evidence of such undue influence, for the reason that the rheumetism of the testarix made it difficult for her to look for all the witnesses. That she did not resort to relatives or friends is, likewise explainable: it would have meant the disclosure of the terms of her will to those interested in her succession but who were not favored by her, thereby exposing her to unpleasant importunity and recriminations that an aged person would naturally seek to avoid. The natural desire to keep the making of a will secret can, likewise, account for the failure to probate the testament during her lifetime. We conclude that the trial court committed no error in finding the appellant's evidence established at most grounds for suspicion but fell far short of establishing actual exercise of improper pressure or influence. Considering that testarix considered proponent as her own son, to the extent that she expressed no objection to his being made the sole heir of her sister, Florentina Cruz, in derogation of her own rights, we find nothing abnormalin her instituting proponent also as her own beneficiary. As stated by the Court in the Knutson case — The truth of the matter is that bequests and devises to those in whom the testator has confidence and who have won his affection are more likely to be free from undue influence that bequests or devises to others. (In re Knutson's Will, 41 Pac. 2d 793). Appellants invoked presumption of undue influence held to exist by American authorities where the beneficiary participates in the drafting of execution of the will favoring him; but since the will was prepared by Atty. Pascual, although nephew of the proponent, we do not think the presumption applies; for in the normal course of events, said attorney would follow the instructions of the testatrix; and a member of the bar in good standing may not be convicted of unprofessional conduct, or of having conspired to falsify a statement, except upon clear proof. The charge of fraud, being premised on the existence of undue influence, needs no separate discussion. WHEREFORE, the decree of probate appealed from is affirmed; with costs against contestants-appellants.