G.R. No. L-2538 September 21, 1951 II.

1951 II. The court a quo erred in not holding that the petitioner is now estopped from seeking
the probate of Molo's alleged will of 1918.

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee, III. The lower court erred in not holding that petitioner herein has come to court with
vs. "unclean hands" and as such is not entitled to relief.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918
Claro M. Recto and Serafin C. Dizon for appellants. was not executed in the manner required by law.
Delgado & Flores for appellee.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately
BAUTISTA ANGELO, J.: revoked by Molo himself.

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last VI. The lower court erred in not holding that Molo's will of 1918 was subsequently
will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The revoked by the decedent's will of 1939.
oppositors-appellants brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.
In their first assignment of error, counsel for oppositors contend that the probate court erred in not
holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on
without leaving any forced heir either in the descending or ascending line. He was survived, August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that
however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of
nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the the 1939 will because of her knowledge that said will intrinsically defective in that "the one and
legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y only testamentory disposition thereof was a "disposicion captatoria". These circumstances,
Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner with
20, 1939. (Exhibit I). The later will executed in 1918. a view to insuring the realization of her plan of securing the probate of the 1918 will which she
believed would better safeguard her right to inherit from the decease.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a
petition, which was docketed as special proceeding No. 8022 seeking the probate of the will These imputations of fraud and bad faith allegedly committed in connection with special
executed by the deceased on June 20, 1939. There being no opposition, the will was probated. proceedings No. 8022, now closed and terminated, are vigorously met by counsel for petitioner
However, upon petition filed by the herein oppositors, the order of the court admitting the will to who contends that to raise them in these proceedings which are entirely new and distinct and
probate was set aside and the case was reopened. After hearing, at which both parties presented completely independent from the other is improper and unfair as they find no support whatsoever
their evidence, the court rendered decision denying the probate of said will on the ground that the in any evidence submitted by the parties in this case. They are merely based on the presumptions
petitioner failed to prove that the same was executed in accordance with law. and conjectures not supported by any proof. For this reason, counsel, contends, the lower court
was justified in disregarding them and in passing them sub silentio in its decision.

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, A careful examination of the evidence available in this case seems to justify this contention. There
1918, which was docketed as special proceeding No. 56, in the same court. Again, the same is indeed no evidence which may justify the insinuation that petitioner had deliberately intended to
oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another
estopped from seeking the probate of the will of 1918; (2) that said will has not been executed in will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto
the manner required by law and (3) that the will has been subsequently revoked. But before the Perez that he went out of the room to answer an urgent call of nature when Artemio Reyes was
second petition could be heard, the battle for liberation came and the records of the case were signing the will and the failure of petitioner later to impeach the character of said witness in spite of
destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record
impossible because neither petitioner nor oppositors could produce the copies required for its discloses that this failure has been explained by petitioner when she informed the court that she
reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the one was unable to impeach the character of her witness Canuto Perez because of her inability to find
destroyed, to which the oppositors filed an opposition based on the same grounds as those witnesses who may impeach him, and this explanation stands uncontradicted. Whether this
contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes
court issued an order admitting the will to probate already stated in the early part of this decision. within the province of the former case. The failure of petitioner to present the testimony of Artemio
From this order the oppositors appealed assigning six errors, to wit. Reyes at the hearing has also been explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the unfairness of this
I. The probate court erred in not holding that the present petitioner voluntarily and imputation becomes more glaring when we stock of the developments that had taken place in
deliberately frustrated the probate of the will dated June 20, 1939, in special these proceedings which show in bold relief the true nature of the conduct, behavior and character
proceeding No. 8022, in order to enable her to obtain the probate of another alleged of the petitioner so bitterly assailed and held in disrepute by the oppositors.
will of Molo dated 191.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939, section 618 of the Code of Civil Procedure as to the making of wills, cannot produce
was filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated. the effect of annulling the previous will, inasmuch as said revocatory clause is void. (41
Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said Phil., 838.)
will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case
was reopened. The reopening was ordered because of the strong opposition of the oppositors who
contended that he will had not been executed as required by law. After the evidence of both Apropos of this question, counsel for oppositors make the remark that, while they do not disagree
parties had been presented, the oppositors filed an extensive memorandum wherein they with the soundness of the ruling laid down in the Samson case, there is reason to abandon said
reiterated their view that the will should be denied probate. And on the strenght of this opposition, ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in
the court disallowed the will. American jurisprudence. They maintain that said ruling is no longer controlling but merely
represents the point of view of the minority and should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of
If petitioner then knew that the 1939 will was inherently defective and would make the wills, is of American origin and as such should follow the prevailing trend of the majority view in the
testamentary disposition in her favor invalid and ineffective, because it is a "disposicion United States. A long line of authorities is cited in support of this contention. And these authorities
captatoria", which knowledge she may easily acquire through consultation with a lawyer, there was hold the view, that "an express revocation is immediately effective upon the execution of the
no need her to go through the order of filing the petition for the probate of the will. She could subsequent will, and does not require that it first undergo the formality of a probate proceeding".
accomplish her desire by merely suppressing the will or tearing or destroying it, and then take (p. 63, appellants' brief .
steps leading to the probate of the will executed in 1918. But for her conscience was clear and
bade her to take the only proper step possible under the circumstances, which is to institute the
necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to While they are many cases which uphold the view entertained by counsel for oppositors, and that
probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants view appears to be in controlling the states where the decisions had been promulgated, however,
filed a petition for reopening, and over her vigorous objection, the same was granted and the case we are reluctant to fall in line with the assertion that is now the prevailing view in the United States.
was reopened. Her motion for reconsideration was denied. Is it her fault that the case was In the search we have made of American authorities on the subject, we found ourselves in a pool
reopened? Is it her fault that the order admitting the will to probate was set aside? That was a of conflicting opinions perhaps because of the peculiar provisions contained in the statutes
contingency which petitioner never expected. Had appellants not filed their opposition to the adopted by each State in the subject of revocation of wills. But the impression we gathered from a
probate of the will and had they limited their objection to the intrinsic validity of said will, their plan review and the study of the pertinent authorities is that the doctrine laid down in the Samson case
to defeat the will and secure the intestacy of the deceased would have perhaps been is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision
accomplished. But they failed in their strategy. If said will was denied probate it is due to their own Published in 1948, we found the following passages which in our opinion truly reflect the present
effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to trend of American jurisprudence on this matter affecting the revocation of wills:
protect her own interest and prevent the intestacy of the deceased to happen.
SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes
Having reached the foregoing conclusions, it is obvious that the court did not commit the second which permit the revocation of a will by another writing provide that to be effective as a
and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered revocation, the writing must be executed with the same formalities which are required
guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply to be observed in the execution of a will. Accordingly, where, under the statutes,
because of her effort to obtain the allowance of the 1939 will has failed considering that in both the attestation is necessary to the making of a valid will, an unattested non testamentary
1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be charged with writing is not effective to revoke a prior will. It has been held that a writing fails as a
bad faith far having done so because of her desire to prevent the intestacy of her husband. She revoking instrument where it is not executed with the formalities requisite for the
cannot be blamed being zealous in protecting her interest. execution of a will, even though it is inscribed on the will itself, although it may effect a
revocation by cancellation or obliteration of the words of the will. A testator cannot
reserve to himself the power to modify a will by a written instrument subsequently
The next contention of appellants refers to the revocatory clause contained in 1939 will of the prepared but not executed in the manner required for a will.
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.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will
which is invalid because of the incapacity of the testator, or of undue influence can
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case have no effect whatever as a revoking will. Moreover, a will is not revoked by the
of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or
fours with the facts of this case. Hence, the doctrine is that case is here controlling. codicil, even though the latter contains a clause expressly revoking the former will, in a
jurisdiction where it is provided by a controlling statute that no writing other than a
testamentary instrument is sufficient to revoke a will, for the simple reason that there is
There is merit in this contention. We have carefully read the facts involved in the Samson case we no revoking will. Similarly where the statute provides that a will may be revoked by a
are indeed impressed by their striking similarity with the facts of this case. We do not need to recite subsequent will or other writing executed with the same formalities as are required in
here what those facts are; it is enough to point out that they contain many points and the execution of wills, a defectively executed will does not revoke a prior will, since it
circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case cannot be said that there is a writing which complies with the statute. Moreover, a will
(which we quote hereunder) should not apply and control the present case. or codicil which, on account of the manner in which it is executed, is sufficient to pass
only personally does not affect dispositions of real estate made by a former will, even
though it may expressly purport to do so. The intent of the testator to revoke is
A subsequent will, containing a clause revoking a previous will, having been
immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)
disallowed, for the reason that it was not executed in conformity with the provisions of
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after
Volume 123, there appear many authorities on the "application of rules where second will is the execution of the second will, which revoked the first, could there be any doubt, under this
invalid", among which a typical one is the following: 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
It is universally agreed that where the second will is invalid on account of not being that the revocatory clause contained in the subsequent will was valid and the latter would be given
executed in accordance with the provisions of the statute, or where the testator who effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate
has not sufficient mental capacity to make a will or the will is procured through undue under the principle of "dependent relative revocation".
influence, or the such, in other words, where the second will is really no will, it does not
revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo.
App., 632, 78 S.W. (2d), 498. This doctrine is known as that of dependent relative revocation, and is usually applied
where the testator cancels or destroys a will or executes an instrument intended to
revoke a will with a present intention to make a new testamentary disposition as a
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case substitute for the old, and the new disposition is not made or, if made, fails of effect for
is predicated. They reflect the opinion that this ruling is sound and good and for this reason, we same reason. The doctrine is n limited to the existence of some other document,
see no justification for abondoning it as now suggested by counsel for the oppositors. however, and has been applied where a will was destroyed as a consequence of a
mistake of law. . . . (68 C.J.P. 799).
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 The rule is established that where the act of destruction is connected with the making
1939 will should be regarded, not as a will within the meaning of said word, but as "other writing of another will so as fairly to raise the inference that the testator meant the revocation
executed as provided in the case of wills", simply because it was denied probate. And even if it be of the old to depend upon the efficacy of a new disposition intended to be substituted,
regarded as any other writing within the meaning of said clause, there is authority for holding that the revocation will be conditional and dependent upon the efficacy of the new
unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. disposition; and if, for any reason, the new will intended to be made as a substitute is
pp. 329-330). inoperative, the revocation fails and the original will remains in full force. (Gardner, pp.
232, 233.)
But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918
cannot still be given effect because of the presumption that it was deliberately revoked by the This is the doctrine of dependent relative revocation. The failure of a new testamentary
testator himself. The oppositors contend that the testator, after executing the 1939 will, and with disposition upon whose validity the revocation depends, is equivalent to the non-
full knowledge of the recovatory clause contained said will, himself deliberately destroyed the fulfillment of a suspensive conditions, and hence prevents the revocation of the original
original of the 1918 will, and for that reason the will submitted by petitioner for probate in these will. But a mere intent to make at some time a will in the place of that destroyed will not
proceedings is only a duplicate of said original. render the destruction conditional. It must appear that the revocation is dependent
upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)
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 We hold therefore, that even in the supposition that the destruction of the original will by the
executed in 1939. The only evidence we have is that when the first will was executed in 1918, testator could be presumed from the failure of the petitioner to produce it in court, such destruction
Juan Salcedo, who prepared it, gave the original and copies to the testator himself and apparently cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on
they remained in his possession until he executed his second will in 1939. And when the 1939 will the mistaken belief that the will of 1939 has been validly executed and would be given due effect.
was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for The theory on which this principle is predicated is that the testator did not intend to die intestate.
another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She And this intention is clearly manifest when he executed two wills on two different occasion and
did not find the original. instituted his wife as his universal heir. There can therefore be no mistake as to his intention of
dying testate.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge
of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his The remaining question to be determined refers to the sufficiency of the evidence to prove the due
wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate execution of the will.
copy in order that it may likewise be destroyed. But this was not done as shown by the fact that
said duplicate copy remained in the possession of petitioner. It is possible that because of the long
lapse of twenty-one (21) years since the first will was executed, the original of the will had been The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the
another will containing exactly the same testamentary dispositions. Whatever may be the present proceedings. So the only instrumental witness available was Angel Cuenca and under our
conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no law and precedents, his testimony is sufficient to prove the due execution of the will. However,
direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter petitioner presented not only the testimony of Cuenca but placed on the witness stand Juan
cannot be inference or conjectur. Salcedo, the notary public who prepared and notarized the will upon the express desire and
instruction of the testator, The testimony of these witnesses shows that the will had been executed
in the manner required by law. We have read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the The other opponent, Monica Naval, assigned, besides the first two errors already mentioned, the
appellants.1âwphïl.nêt finding of the court that the disallowance of the will of said deceased, dated February 13, 1915, on
the ground that is was not executed in such form that it could transmit real and personal property,
according to section 618 of the Code of Civil Procedure, also had the effect of annulling the
revocatory clause in said will.

G.R. No. L-11823 February 11, 1918 From the evidence it appears, as we have already stated, that the trial court declared that the first
document presented by the executor of the deceased, Simeona F. Naval, as a will executed by her
on February 13, 1915, and which was the subject-matter of case No. 13386 of said court, could not
CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-
be allowed, on the ground that it was not executed with the requisites and formalities prescribed by
appellants,
law. Article 739 of the Civil Code provides that a former will is by operation of law revoked by
vs.
another valid subsequent will, if the testator does not state in the later will his desire that the former
MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.
should subsist wholly or partly. In harmony with this provision of substantive law, we find section
623 of the Code of Civil Procedure, which provides that no will shall be revoked, except by
Guillermo Lualhati for appellants. implication of law, otherwise than by some will, codicil, or other writing executed as provided in
Perfecto Gabriel for appellees. case of wills.

ARAULLO, J.: Therefore, according to the legal provisions, in order that the will of February 13, 1915, that is, the
first document presented as the will of the deceased Simeona F. Naval, could have the effect of
revoking that which was presented afterwards by the petitioners as executed by the same
On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First Instance of the deceased on October 31, 1914, that is, on a date previous to the execution of the first, it was
city of Manila for allowance as the will of Simeona F. Naval, who died in said city two days necessary and indispensable that the later will, that is, that first presented for allowance, should be
previously, a document executed by her of February 13, 1915, and in which he was appointed perfect or valid, that it, executed as provided by lay in case of wills.
executor. The case was recorded as No. 13386 and, after hearing the petition for allowance filed
by said executor, it was denied on the ground that said document was not duly executed by the
deceased as her last will and testament, inasmuch as she did not sign it in the presence of three It also appears from the record that the opponents themselves maintained that said later will, that
witness and the two witnesses did not sign it in the presence of each other. Thereafter the nieces is, that of February 13, 1915, was not perfect, or executed as provided by law in case of wills, and
and legatees of the same deceased filed in the same court for allowance as her will, another the Court of First Instance of Manila has so held in disallowing said documents as the will of the
document executed by her on October 31, 1914, and, consequently, the case was registered deceased. So that it very evident that the second will presented, that is, that of October 31, 1914,
under another number, which was No. 13579. The petition for allowance was opposed by Monica was not and could not have been revoked by the first, and the court was not in error in so holding
Naval, Rosa Naval, and Cristina Naval on the ground that the will, the allowance of which is asked, in the order appealed from. We deem it unnecessary to add a single word mere or cite well-known
could not be allowed, because of the existence of another will of subsequent date, executed during doctrines and opinions of jurists in support of what has already been stated.
her lifetime by the same Simeona F. Naval, and because said will has been revoked by another
executed subsequently by her during her lifetime, and further, because sail will has not been
As to the second error assigned by the opponents, we believe it sufficient to refer to what the court
executed with the formalities required by existing laws. Trial having taken place, at which evidence
below stated in the judgment appealed from. It is as follows:
was adduced, the court on February 8, 1916, issued an order, admitting said second document
and ordering its allowance as the last will and testament o said deceased. From said order the
opponents appealed to this court and transmitted to us the corresponding declarations. Tow of the The court finds no incongruency in the presentation of a prior will when another will of
opponents, that is, Rosa and Cristina Naval, assigned, as errors committed by the court, the subsequent date has been disallowed. Disregarding the fact that the petitioners in this
following: case were not those who presented the will in No. 13386, in which the petition was
presented by the same D. Perfecto Gabriel as executor, it is proper to take into
account that the object of a petition for allowance is to ask for an order declaring that a
1. The finding of the court that the will of October 31, 1914, has not been revoked by that of
will has been executed in accordance with the requisites and formalities required by
February 13, 1915;
law. This is a question for the court to decide and is out of the control of the party who
presents the will. The allowance or disallowance of a will by a competent court
2. The act of the court in permitting the petitioner to institute and proceed with the proceedings depends upon whether the evidence adduced at the trial shows or does not show that
relative to the last case for the allowance of the will, No. 13579, notwithstanding that proceedings the formalities required by law have been complied with, and this cannot be
had already been had in the other case No. 13386 and final judgment rendered therein; and determined in advance, as a general rule, by the person who presents the testament.
for he has not always concurred in or seen the execution of the will.

3. The act of the court in denying the motion for continuance of the trial on the allowance of the will
of October 31, 1914, which motion was presented for the sole purpose of introducing evidence to If, therefore, the personal who presents a will and asks that if be allowed does not
show the falsity of the signature appearing in said will and submitting said signature to the Bureau secure its allowance, and he has in his possession another will, or has information that
of Science for analysis. another exists, he does not contradict himself by asking for the allowance of the will of
earlier date merely because the later will was declared invalid by the proper court. If in
this case there is any who adopts a contradictory position, it is the respondent himself,
 inasmuch as in case No. 13386 he alleged, as a ground for the disallowance of the will the acknowledgment of natural children, of some debt or obligation. In such case, the document
then presented, that it was not executed in accordance with the law, and now he could produce effect, but not as will, but simply as a written admission made by the person
maintains the contrary, for he claims that said will revoked that which is now presented. executing it. And It is beyond doubt that the revocatory clause contained in a document, like the
present, which contains provisions proper of a will, as those relating to legacies and distribution of
the properties of the testator after his death as well as the appointment of executors, is not matter
With respect to the third error, it is beyond doubt that the court did not commit it, for it appears that extraneous to the will, but merely a part thereof, intimately connected with it as well as with the will
when the examination of the witness, Cristina Samson, was finished and the court told Attorney or wills, the revocation of which is declared in said clause; in short, the desire of the testator
Lualhati, counsel for the respondents, to continue adducing his evidence, he said he had no more declared in the revocatory clause is related to the desire of the same testator expressed in the
proof, although he added that he would ask the court to grant him permission to send the will of provisions of the testament in which said clause is found and to that which he might have
1914 to the Bureau of Science, which petition was objected to by the attorney for the proponents expressed in the testaments which he may have previously executed. There is such relation
and denied by the court. Immediately thereafter the attorney for the opponents asked for the between the revocatory clause and the will which contains it, that if the will does not produce legal
continuance of the trial, which was also denied by the court, after objection was made by the effects, because it has not been executed in accordance with the provisions of the law, neither
proponents. The attorney for the opponents excepted to said ruling. would the revocatory clause therein produce legal effects. And if, in the present case, the so-called
will of the deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by her as
her last will and testament, ad declared by the court in its decision of November 19, 1915, in case
Therefore, the petition of said attorney for the remission of said will to the Bureau of Science, in the
No. 13386, for which reason its allowance was denied, neither may it be maintained that the
terms in which it was made to the court, after ha had stated that he had no more evidence to
revocatory clause contained in said will is the expression of the last will of said deceased. The
present, signified that he left it to the discretion of the court to grant it or not. Furthermore, no
disallowance of the ill, therefore, produced the effect of annulling the revocatory clause, not exactly
exception was taken to the order to the order denying this motion, and although the attorney for
because said will was not executed in such from that it could transmit real and personal property,
the opponents excepted to the order denying the motion for continuance of the trial, such
as inaccurately alleged by the appellant, Monica Naval, to be the court's finding, upon which said
exception was completely useless and ineffective for the purpose of alleging before this court that
assignment of error is based, but because it was proved that said will was not executed or signed
the trial court erred in that respect, for said resolution, being one of those left to the discretion of
with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause
the court in the exercise of it functions, according to section 141 of the Code of Civil Procedure, it
which also produces the nullity of the same will, according to section 634 of said law; and of
could not be the subject of an exception, unless the court, in denying said motion, abused its
course what is invalid in law can produce no effect whatever.
discretional power and thereby prejudiced the essential rights of the respondents, which is not the
case here.
If the instrument propounded as a revocation be in form a will, it must be perfect as
such, and be subscribed and attested as is required by the statute. An instrument
The error which, in addition to the first two already mentioned, has been assigned by the opponent
intended to be a will, but filing of its effect as such on account of some imperfection in
and appellant, Monica Naval, and refers, according to her, to the court's action in declaring that the
its structure or for want of due execution, cannot be set up for the purpose of revoking
disallowance of the will of the deceased Simeona F. Naval, dated February 13, 1915, for the
a former will. (40 Cyc., p. 1177, and cases cited therein.)
reason that it was not executed in such manner and from that it could transmit real and personal
property, according to the provisions of section 618 of the Code of Civil Procedure, also had the
effect of annulling the revocatory clause of said will. A subsequent will containing a clause revoking an earlier will must, as a general rule,
be admitted to probate before the clause of revocation can have any effect, and the
same kind, quality, and method of proof is required for the establishment of the
First of all, it is not true that the court made such statement in the terms given in said assignment
subsequent will as was required for the establishment of the former will. (40 Cyc., p.
of error, that is, it is not true that the court declared that, because said will was not executed in the
1178, and cases cited therein.)
form required by law in order that it may transmit real and personal property, according to the
provisions of section 618, the disallowance of said will also had the effect of annulling the
revocatory clause therein contained. In the order appealed from there is no declaration or But admitting that the will said to have been executed by the deceased Simeona F. Naval on
conclusion made in these terms. The court did not say that the annulment of the revocatory clause February 13, 1915, notwithstanding its inefficacy to transmit property for the reason that it has not
in said will was the effect or consequence of the fact that it was not allowed on the ground that it been executed, according to the provisions of said section 618 of the Code of Civil Procedure,
was not executed in the form required by law in order that it may transmit real and personal should be considered as executed by her in order to express her desire, appearing in one of its
property. Referring to the construction, given by the respondent to sections 618 and 623 of the clauses, to revoke and annul any previous will of hers, as stated in clause 13, this being the
Code of Civil Procedure, to the effect that a subsequent will may revoke a previous will, although argument adduced by the appellant, Monica naval, in support of said assignment of error —
the later will has not been allowed by the competent court, it being sufficient that the intention of neither could it be maintained that, the allowance of said will having been denied by the court on
the testator to revoke the previous will should be clearly expressed, and that, while the requisite of November 11, 1915, said revocatory clause subsists and the intention expressed by the testratrix
allowance is necessary in order that it may transmit property from one person to another, it is not therein is valid and legally effective, for the simple reason that, in order that a will may be revoked
necessary in order that it might procedure other effects, for example, the effect of a revocatory by a document, it is necessary, according to the conclusive provisions of section 623 of said
clause, or a clause of aknowledgment of a child, — what the court declared, we repeat, was that procedural law, that such documents be executed according to the provisions relating to will in
although the revocation of a will should have been effected, not by means of another will or codicil, section 618, and the will in question, or, according to the respondent, the so-called document, was
but by mans of a document, as authorized by said section 623, which document should have the not executed according to the provisions of said section, according to the express finding of the
requisites and conditions fixed in section 618, the presentation of the document to the court was trial court in its order of November 11, 1915, acquiesced in by the opponent herself, and which is
necessary in order that the latter might allow it, by declaring that it was executed with the now final and executory. Therefore, the disallowance of said will and the declaration that it was not
formalities required by law for the execution of a will, and finally concluding that, just as to, is to be executed according to the provisions of law as to wills, produced the effect of annulling said
proved that the requisites of section 618 have been complied with in order that a will may be of revocatory clause.
value through its allowance, so without such allowance the revocatory clause like the other
provisions of the will, has no value or effect except to show extraneous matters, as, for example,
In support of the argument advanced in her brief said appellant, Monica Naval, cites the was impossible to present it for allowance, but requires for that purpose that it be proved that said
declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (114 Mass., 510, subsequent will has been executed, attested, and subscribed in due form and that it contained,
512)m which, according to the appellant herself, was in the following terms: furthermore, that revocatory clause. This is what said declaration and, in relation thereto, also what
the syllabus of the decision thereof clearly says. The court, through Chief Justice Gray, in giving its
opinion, thus began by saying:
If it be shown that a later will was duly executed and attested, containing a clause
expressly revoking former will nothing else appearing as to its contents, it is
nevertheless good as a revocation, but it can only be made available by setting it up in By our law, no will can be revoked by any subsequent instrument, other than a "will,
opposition to the probate of the earlier will. codicil or writing, signed, attested and subscribed in the manner provided for making a
will." And when an instrument of revocation is in existence and capable of being
propounded for probate, its validity should be tried by a direct proceeding instituted for
In the decision of said case the finding referred to be by the appellant appears not to have been the purpose in the Probate Court. (Loughton vs. Atkins, 1 Pick., 535.)
made by the Supreme Court of Massachusetts.

It results, therefore, that while perfect parity does not exist between the case decided by the
The syllabus of said decision says: Supreme Court of Massachusetts, to which the appellant Monica Naval refers, and that which is
not before us, it is wholly unquestionable that, whether the case deals with a subsequent will
revocatory of a previous will, which may possibly be presented to a probate court for allowance, or
When a will revoking a former will is in existence, it must be established in the Probate
of a subsequent will, also revocatory of a previous will, which could not be presented for
Court; but when it has been lost or destroyed, and its contents cannot be sufficiently
allowance, because it has been taken or hidding, or mislaid — in order that such will may
proved to admit it to probate, it may nevertheless be availed of as a revocation in
constitute a valid revocation and be utilized in the second case, although the remaining provisions
opposition to the probate of the will revoked by it.:
may not be proven, in opposition to the allowance of the previous will, it is necessary to prove that
it was executed, attested, and subscribed in due form, and, of course, also that it contained a
And in the body of the decision there is a declaration, to which the appellant must have desired to clause expressly revoking the previous will, or, what is the same thing, that said subsequent will
refer in her brief, which declaration says: has been executed according to the provisions relating to wills, as expressed in section 623 of the
procedural law in force. There can be no doubt whatever that this applies when the revocation had
been made to appear in a writing or document susceptible of presentation for allowance, like the
If it can be proved that a later will was duly executed, attested and subscribed, and that so-called will of the deceased Simeona F. Naval, dated February 13, 1915, and considered by said
it contained a clause expressly revoking all former wills, but evidence of the rest of its respondent and appellant as a mere document of revocation, for, as already seen in said decision
contents cannot be obtained, it is nevertheless a good revocation; and it can be made invoked by her, the requisite as to signing, attesting, and subscribing in the form, required by law
available only by allowing it to be set up in opposition to the probate of the earlier will,. . for the execution of wills in order that it may revoke a previous will, is also required in a will as well
. as in a codicil, or in a writing, and in referring to a document of revocation, it is also expressed that
its validity should be proved in a direct proceeding, instituted for the purpose in a probate court. In
the case at bar, the document, executed by the deceased, Simeona F. Naval, as her last will and
The facts of the case in which this decision was rendered are different from the facts of the case at testament, dated February 13, 1915, has been presented for allowance; it validity has been proved
bar. That was a case concerning a will filed by one of the children of the testatrix, Mary Wallis, as by means of said procedure in the Court of Probate of Manila, and that court denied its allowance,
her last will, to the allowance of which another son objected, alleging that said will had been on the ground that the document in question had not been duly executed by the deceased, as her
revoked by another executed by the same deceased subsequent to the will that was filed, and that last will and testament, because she did not sign in the presence of three witnesses, and two of
it had been fraudulently destroyed or taken by his brother, the proponent and his wife, or by one of these witnesses did not sign in the presence of each other, or what is the same thing, that said
them, in order to deprive him of the rights conferred upon him by said will. Therefore, the will said document has not be attested and subscribed in the manner established by law for the execution
to have been subsequently executed by the testatrix and in which, according to the oppositor, the of will, or, in other words, as provided by law in case of wills, as stated by section 623 of said
clause revocatory of the former will appeared, was not presented by said oppositor, while the procedural law, and this resolution was acquiesced in, as already stated, by the respondents in
previous will was, in the contrary, filed for allowance by the son of the testratrix, who appeared to this case, and is, therefore, final and executory.
be favored therein, said oppositor having alleged that the subsequent will, that is, that containing
the revocatory clause, had been drawn, subscribed and executed in accordance with the
provisions of the law, a fact which he was ready to prove just as he was ready to prove that it had In conclusions, the doctrine laid down in the decision of the Supreme Court of Massachusetts,
been destroyed or suppressed by the proponent, his brother and his wife, or one of them. In the invoked by the appellant, Monica Naval, is in conformity with the provision of said section 623 of
case at bar, the subsequent will containing the revocatory clause of the previous will executed by our procedural law and article 739 of the Civil Code, and the will executed by the deceased
the deceased Simeona F. Naval was presented to the court for allowance and it was disallowed — Simeona F. Naval on October 31, 1914, not having been revoked, according to these provisions,
a fact which gave opportunity to the legatees of said deceased to present a previous will executed by the will presented and alleged as executed by the same deceased subsequently on February
by her on October 31, 1914, and said two wills having been successively presented, evidence as 13, 1915, the allowance of which was denied by the Court of First Instance of Manila, the court
to them was also successively adduced for their allowance by the court. below was not in error in ordering the allowance of said will, that is, of that of October 31, 1914, as
the last will and testament of said deceased.
Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis
(supra), to the effect that a subsequent will containing a revocatory clause of previous wills, Wherefore, the order appealed from is affirmed, with the costs of this instance against the
constitutes a valid revocation and may be used in objecting to the allowance of the previous will, appellants. So ordered.
even when it is not possible to obtain proof of the remainder of the contents of said subsequent
will, refers to the case in which the latter had been taken away, destroyed or suppressed, and it
G.R. No. L-26317 January 29, 1927 the deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for
the applicant." From that order the petitioner appealed.

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant, The appellant contends that the lower court committed an error in not finding from the evidence
vs. that the will in question had been executed with all the formalities required by the law; that the
CORNELIO MAMUYAC, AMBROSIO LARIOSA, same had been revoked and cancelled in 1920 before his death; that the said will was a mere
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees. carbon copy and that the oppositors were not estopped from alleging that fact.

Nicanor Tavora for appellant. With reference to the said cancellation, it may be stated that there is positive proof, not denied,
Jose Rivera for appellees. which was accepted by the lower court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of a will to be preserved. It
therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that
JOHNSON, J.: such cancellation or revocation has taken place must either remain unproved of be inferred from
evidence showing that after due search the original will cannot be found. Where a will which
cannot be found is shown to have been in the possession of the testator, when last seen, the
The purpose of this action was to obtain the probation of a last will and testament of Miguel
presumption is, in the absence of other competent evidence, that the same was cancelled or
Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of
destroyed. The same presumption arises where it is shown that the testator had ready access to
La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel
the will and it cannot be found after his death. It will not be presumed that such will has been
Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said
destroyed by any other person without the knowledge or authority of the testator. The force of the
Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for
presumption of cancellation or revocation by the testator, while varying greatly, being weak or
the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
strong according to the circumstances, is never conclusive, but may be overcome by proof that the
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union).
will was not destroyed by the testator with intent to revoke it.
After hearing all of the parties the petition for the probation of said will was denied by the
Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased
had on the 16th day of April, 1919, executed a new will and testament. In view of the fat that the original will of 1919 could not be found after the death of the testator
Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are
forced to the conclusion that the conclusions of the lower court are in accordance with the weight
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure
of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent
the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
clearly to establish not only its execution but its existence. Having proved its execution by the
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their
proponents, the burden is on the contestant to show that it has been revoked. In a great majority of
oppositions, alleging (a) that the said will is a copy of the second will and testament executed by
instances in which wills are destroyed for the purpose of revoking them there is no witness to the
the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of
act of cancellation or destruction and all evidence of its cancellation perishes with the testator.
Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased
Copies of wills should be admitted by the courts with great caution. When it is proven, however, by
Miguel Mamuyac.
proper testimony that a will was executed in duplicate and each copy was executed with all the
formalities and requirements of the law, then the duplicate may be admitted in evidence when it is
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the made to appear that the original has been lost and was not cancelled or destroyed by the testator.
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the (Borromeo vs. Casquijo, G.R. No. L-26063.)1
same had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the
evidence adduced, found that the following facts had been satisfactorily proved:
After a careful examination of the entire record, we are fully persuaded that the will presented for
probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is
That Exhibit A is a mere carbon of its original which remained in the possession of the hereby affirmed. And without any finding as to costs, it is so ordered.
deceased testator Miguel Mamuyac, who revoked it before his death as per testimony
of witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos
Bejar, who saw on December 30, 1920, the original Exhibit A (will of 1919) actually
cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as
he had sold him a house and the land where the house was built, he had to cancel it
(the will of 1919), executing thereby a new testament. Narcisa Gago in a way
corroborates the testimony of Jose Fenoy, admitting that the will executed by the
deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel
Mamuyac. The opponents have successfully established the fact that father Miguel
Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the
deceased, who was living in the house with him, when cross-examined by attorney for
the opponents, testified that the original Exhibit A could not be found. For the foregoing
consideration and for the reason that the original of Exhibit A has been cancelled by
G.R. No. 17857 June 12, 1922 testatrix on the day of its execution. Palileo's testimony is entirely contradicted by Gonzalo Abaya
not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's testimony cannot
prevail over that of the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants
In re will of Josefa Zalamea y Abella, deceased. impeach the credibility of Eugenio Zalamea, for having made a sworn declaration before the justice
PEDRO UNSON, petitioner-appellee, of the peace of Santa Cruz, Laguna, before the trial of this case, to the effect that he was really
vs. one of the witnesses to the will in question, which fact was corroborated by himself at the trial. The
ANTONIO ABELLA, ET AL., opponents-appellants. appellants take Zalamea's testimony in connection with the dismissal of a criminal case against a
nephew of his, in whose success he was interested, and infer from this fact the partiality of his
testimony. We deem this allegation of little importance to impeach the credibility of the witness
Crispin Oben for appellants.
Zalamea, especially because his testimony is corroborated by the other attesting witness. Gonzalo
Pedro Guevarra and Carlos Ledesma for appellee.
Abaya, and by attorney Luis Abaya, who had prepared the testament at the instance of the
testatrix. The foregoing is sufficient for us to conclude that the first assignment of error made by
VILLAMOR, J.: the appellants is groundless.

On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old, who was residing in the The appellants contend that the court below erred in admitting the will to probate notwithstanding
municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an the omission of the proponent to produce one of the attesting witnesses.
attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who
signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921,
At the trial of this case the attorneys for the proponent stated to the court that they had necessarily
and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the court of First
to omit the testimony of Pedro de Jesus, one of the persons who appear to have witnessed the
Instance of Laguna on the 19th of January of the same year an application for the probate of the
execution of the will, for there were reasonable grounds to believe that said witness was openly
will and the issuance of the proper letters of administration in his favor.
hostile to the proponent, inasmuch as since the announcement of the trial of the petition for the
probate of the will, said witness has been in frequent communication with the contestants and their
To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia attorney, and has refused to hold any conference with the attorneys for the proponent. In reply to
Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not this, the attorney for the contestants, said to the court, "without discussing for the present whether
executed in conformity with the provinces of the law, inasmuch as it was not paged correlatively in or not in view of those facts (the facts mentioned by the attorneys for the petitioner), in the
letters, nor was there any attestation clause in it, nor was it signed by the testatrix and the hypothesis that the same are proven, they are relieved from producing that witness, for while it is a
witnesses in the presence of each other. matter not decided, it is a recognized rule that the fact that a witness is hostile does not justify a
party to omit his testimony; without discussing this, I say, I move that said statement be stricken
out, and if the proponent wants these facts to stand to stand in the record, let him prove them."
Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered The court a quo ruled, saying, "there is no need."
the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents
contained the true and last will of the deceased Josefa Zalamea.
To this ruling of the court, the attorney for the appellants did not take any exception.

From the judgment of the court below, the contestants have appealed, and in their brief they
assign three errors, which, in their opinion, justify the reversal of the judgment appealed from. In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court, in
deciding the question 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
The first error assigned by the appellants as committed by the court below is its finding to the two, it was said; "while it is undoubtedly true that an uncontested will may be proved by the
effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with all the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
solemnities required by the law. 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.
The arguments advanced by appellants' counsel in support of the first assignment of error tend to
impeach the credibility of the witnesses for the proponent, specially that of Eugenio Zalamea. We
have made a careful examination of the evidence, but have not found anything that would justify us In the present case no explanation was made at the trial as to why all three of the
in disturbing the finding of the court a quo. The attesting witnesses, Eugenio Zalamea and Gonzalo attesting witnesses were not produced, but the probable reason is found in the fact
Abaya, clearly testify that together with the other witness to the will, Pedro de Jesus, they did sign that, although the petition for the probate of this will had been pending from December
each and every page of the will and of the inventory in the presence of each other and of the 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest
testatrix, as the latter did likewise sign all the pages of the will and of the inventory in their was entered until the very day set for the hearing; and it is probable that the attorney
presence. for the • proponent, believing in good faith that 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
In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix, without asking for a postponement of the trial in order that he might produce all the
nor by the witnesses on the day of the execution of the will, that is, on the 19th of July, 1918, attesting witnesses.
basing their contention on the testimony of Aurelio Palileo, who says that on one occasion Gonzalo
Abaya told him that one of the pages of the will had not been signed by the witnesses, nor by the
Although this circumstance may explain why the three witnesses were not produced, it In the case at bar, we do not think this question properly to have been raised at the trial, but in the
does not in itself supply any basis for changing the rule expounded in the case above memorandum submitted by the attorney for the appellants to the trial court, he contended that the
referred to; and were it not for a fact now to be mentioned, this court would probably be will could not be admitted to probate because one of the witnesses to the will was not produced,
compelled to reverse this case on the ground that the execution of the will had not and that the voluntary non-production of this witness raises a presumption against the pretension
been proved by a sufficient number of attesting witnesses. of the proponent. The trial court found that the evidence introduced by the proponent, consisting of
the testimony of the two attesting witnesses and the other witness who was present at the
execution, and had charge of the preparation of the will and the inventory, Exhibits A and A-1, was
It appears, however, that this point was not raised by the appellant in the lower court sufficient. As announced in Cabang vs. Delfinado, supra, the general rule is that, where opposition
either upon the submission of the cause for determination in that court or upon the is made to the probate of a will, the attesting witnesses must be produced. But there are
occasion of the filing of the motion for a new trial. Accordingly it is insisted for the exceptions to this rule, for instance, when a witness is dead, or cannot be served with process of
appellee that this question cannot now be raised for t he first time in this court. We the court, or his reputation for truth has been questioned or he appears hostile to the cause of the
believe this point is well taken, and the first assignment of error must be declared not proponent. In such cases, the will may be admitted to probate without the testimony of said
to be well taken. This exact question has been decided by the Supreme Court of witness, if, upon the other proofs adduced in the case, the court is satisfied that the will has been
California adversely to the contention of the appellant, and we see no reason why the duly executed. Wherefore, we find that the non-production of the attesting witness, Pedro de
same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, Jesus, as accounted for by the attorney for the proponent at the trial, does not render void the
337.) decree of the court a quo, allowing the probate.

There are at least two reasons why the appellate tribunals are disinclined to permit But supposing that said witness, when cited, had testified adversely to the application, this would
certain questions to be raised for the first time in the second instance. In the first place not by itself have change the result reached by the court a quo, for section 632 of the Code of Civil
it eliminates the judicial criterion of the Court of First Instance upon the point there Procedure provides that a will can be admitted to probate, notwithstanding that one or more
presented and makes the appellate court in effect a court of first instance with witnesses do not remember having attested it, provided the court is satisfied upon the evidence
reference to that point, unless the case is remanded for a new trial. In the second adduced that the will has been executed and signed in the manner prescribed by the law.
place, it permits, if it does not encourage, attorneys to trifle with the administration of
justice by concealing from the trial court and from their opponent the actual point upon
which reliance is placed, while they are engaged in other discussions more simulated The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit
than real. These considerations are, we think, decisive. A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is made in
Arabic numerals and not in letters.

In ruling upon the point above presented we do not wish to be understood as laying
down any hard and fast rule that would prove an embarrassment to this court in the In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom
administration of justice in the future. In one way or another we are constantly here of said will, the testatrix Josefa Zalamea says:
considering aspects of cases and applying doctrines which have escaped the attention
of all persons concerned in the litigation below; and this is necessary if this court is to
contribute the part due from it in the correct decision of the cases brought before it. In witness whereof, I sign this will composed of ten folios including the page containing
What we mean to declare is that when we believe that substantial justice has been the signatures and the attestation of the witnesses; I have likewise signed the inventory
done in the Court of First Instance, and the point relied on for reversal in this court attached to this will composed of ten folios in the presence of Messrs. Gonzalo Abaya,
appears to be one which ought properly to have been presented in that court, we will in Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna,
the exercise of a sound discretion ignore such question upon appeal; and this is the Philippine Islands, this 19th of July, 1918.
more proper when the question relates to a defect which might have been cured in the
Court of First Instance if attention had been called to it there. In the present case, if the
And the attestation clause is as follows:
appellant had raised this question in the lower court, either at the hearing or upon a
motion for a new trial, that court would have had the power, and it would have been its
duty, considering the tardy institution of the contest, to have granted a new trial in order The foregoing will composed of ten folios including this one whereunto we have affixed
that all the witnesses to the will might be brought into court. But instead of thus calling our signatures, as well as the inventory of the properties of Doña Josefa Zalamea y
the error to the attention of the court and his adversary, the point is first raised by the Abella, was read to Doña Josefa Zalamea y Abella, and the latter affixed her name to
appellant in this court. We hold that this is too late. the last, and each and every page of this will and inventory composed of ten folios in
our presence; and she declared this to be her last will and testament and at her
request we have affixed hereunto our respective signatures in her presence and in the
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
presence of each other as witnesses to the will and the inventory this 19th of July,
inconsistent with the ruling we now make, for it appears from the opinion in that case
1918, at Pagsanjan, Laguna, P.I.
that the proponent of the will had obtained an order for a republication and new trial for
the avowed purpose of presenting the two additional attesting witnesses who had not
been previously examined, but nevertheless subsequently failed without any apparent (Sgd.) GONZALO ABAYA,
reason to take their testimony. Both parties in that case were therefore fully apprised EUGENIO ZALAMEA,
that the question of the number of witnesses necessar to prove the will was in issue in PEDRO DE JESUS.
the lower court.
In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the "Still some details at time creep into legislative enactments which are so trivial that it
foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires this would be absurd to suppose that the Legislature could have attached any decisive
solemnity for the validity of a will, and makes unnecessary any other attestation clause at the end importance to them. The provision to the effect that the signatures of the testator and
of the inventory. witnesses shall be written on the left margin of each page — rather than on the margin
— seems to be of 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
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine the left or on the right margin, provided they are on one or the other. In Craig vs.
announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In that Tatlonghari (G. R. No. 12558, decided March 23, 1918, not reported), this court
case the validity of the will was assailed on the ground that its folios were paged with the letters A, declared a will void which was totally lacking in the signatures required to be written on
B, C, etc., instead of with the letters "one," two," "three," etc. It was held that this way of numbering its several pages; and in the case of Re Estate of Saguinsin (41 Phil., 875) a will was
the pages of a will is in compliance with the spirit of the law, inasmuch as either one of these likewise declared void which contained the necessary signatures on the margin of each
methods indicates the correlation of the pages and serves to prevent the abstraction of any of leaf (folio), but not in the margin of each page containing written matter."
them. In the course of the decision, we said: "It might be said that the object of the law in requiring
that the paging be made in letters is to make falsification more difficult, but it should be noted that
since all the pages of the testament are signed at the margin by the testatrix and the witnesses, We do not desire to intimate that the numbering in letters is a requisite of no importance. But since
the difficulty of forging the signatures in either case remains the same. In other words the more or its principal object is to give the correlation of the pages, we hold that his object may be attained
less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the by writing one, two, three, etc., as well as by writing A, B, C, etc.
easiness to forge the signatures. And as in the present case there exists the guaranty of the
authenticity of the testament, consisting in the signatures on the left margins of the testament and
the paging thereof as declared in the attestation clause, the holding of this court in Abangan vs. We see no reason why the same rule should not be applied where the paging is in Arabic
Abangan (40 Phil., 476), might as well be repeated: numerals, instead of in letters, as in the inventory in question. So that, adhering to the view taken
by this court in the case of Abangan vs. Abangan, and followed in Aldava vs. Roque, with regard to
the appreciation of the solemnities of a will, we find that the judgement appealed from should be,
"The object of the solemnities surrounding the execution of wills is to close the door as is hereby, affirmed with the costs against the appellants. So ordered.
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an interpretation whatsoever,
that adds nothing but demands more requisites entirely unnecessary, useless, and
frustrative of the testator's last will, must be disregarded."

In that case the testament was written on one page, and the attestation clause on another. Neither
one of these pages was numbered in any way, and it was held: "In a will consisting of two sheets
the first of which contains all the testamentary dispositions and is signed at the bottom by the
testator and three witnesses, and the second contains only the attestation clause and is signed
also at the bottom by the three witnesses it is not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be paged."

This means that, according to the particular case, the emission of paging does not necessarily
render the testament invalid.

The law provides that the numbering of the pages should be in letters placed on the upper part of
the sheet, but if the paging should be placed in the lower part, would the testament be void for this
sole reason? We believe not. The law also provides that the testator and the witnesses must sign
the left margin of each of the sheets of the testament; but if they should sign on the right margin,
would this fact also annul the testament? Evidently not. This court has already held in Avera vs.
Garcia and Rodriguez (42 Phi., 145):

"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 execution for wills must be fully complied
with. The same doctrine is also deducible from cases heretofore decided by this court."
G.R. No. 6845 September 1, 1914 On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said
parties. Gabriel La O accepted said appointment, took the oath of office and entered upon the
performance of his duties as guardian ad litem of said parties. On the 2d day of March, 1910, the
YAP TUA, petitioner-appellee, said Gabriel La O appeared in court and presented a motion in which he alleged, in substance:
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the
court on the 29th day of September, 1909, was null, for the following reasons:
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
(a) Because the same had not been authorized nor signed by the witnesses as the law
prescribes.
JOHNSON, J.:

(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap
It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing Caong was not then mentally capacitated to execute the same, due to her sickness.
the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila,
asking that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and
testament of Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap (c) Because her signature to the will had been obtained through fraud and illegal
Caong died in the city of Manila on the 11th day of August, 1909. Accompanying said petition and influence upon the part of persons who were to receive a benefit from the same, and
attached thereto was the alleged will of the deceased. It appears that the will was signed by the because the said Tomasa Elizaga Yap Caong had no intention of executing the same.
deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Second. That before the execution of the said will, which they alleged to be null, the said Tomasa
Said petition, after due notice was given, was brought on for hearing on the 18th day of Elizaga Yap Caong had executed another will, with all the formalities required by law, upon the 6th
September, 1909. Timoteo Paez declared that he was 48 years of age; that he had known the said day of August, 1909.
Tomasa Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her
death she had executed a last will and testament; that he was present at the time of the execution
of the same; that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had
had also signed said will as witnesses and that they had signed the will in the presence of the been negligent in presenting their opposition to the legalization of the will, said negligence was
deceased. excusable, on account of their age.

Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day
Tomasa Elizaga Yap Caong during her lifetime; that she died on the 11th day of August, 1909, in of September, 1909, and to grant to said minors an opportunity to present new proof relating to the
the city of Manila; that before her death she had executed a last will and testament; that he was due execution of said will. Said petition was based upon the provisions of section 113 of the Code
present at the time said last will was executed; that there were also present Timoteo Paez and of Procedure in Civil Actions.
Severo Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the
will in the presence of the witnesses; that he had seen her sign the will with his own eyes; that the
While it is not clear from the record, apparently the said minors in their petition for a new trial,
witnesses had signed the will in the presence of the said Tomasa Elizaga Yap Caong and in the
attached to said petition the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong,
presence of each other; that the said Tomasa Elizaga Yap Caong signed the will voluntarily, and in
and the affidavits of Severo Tabora, Clotilde and Cornelia Serrano.
his judgment, she was in the possession of her faculties; that there were no threats or intimidation
used to induce her to sign the will; that she signed it voluntarily.
Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable
A. S. Crossfield, judge, granted said motion and ordered that the rehearing should take place upon
No further witnesses were called and there was no further opposition presented to the legalization
the 18th day of March, 1910, and directed that notice should be given to the petitioners of said
of the said will.
rehearing and to all other persons interested in the will. At the rehearing a number of witnesses
were examined.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of
September, 1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be
It will be remembered that one of the grounds upon which the new trial was requested was that the
allowed and admitted to probate. The will was attached to the record and marked Exhibit A. The
deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August,
court further ordered that one Yap Tua be appointed as executor of the will, upon the giving of a
1909; that in support of that allegation, the protestants, during the rehearing, presented a witness
bond, the amount of which was to be fixed later.
called Tomas Puzon. Puzon testified that he was a professor and an expert in handwriting, and
upon being shown the will (of August 11, 1909) Exhibit A, testified that the name and surname on
From the record it appears that no further proceedings were had until the 28th of February, 1910, Exhibit A, in his judgment were written by two different hands, though the given name is the same
when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were as that upon Exhibit 1 (the will of August 6, 1909), because he found in the name "Tomasa" on
interested in the matters of the said will and desired to intervene and asked that a guardian ad Exhibit A a similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname on
litem be appointed to represent them in the cause. Exhibit A with the surname on Exhibit 1 he found that the character of the writing was thoroughly
distinguished and different by the tracing and by the direction of the letters in the said two exhibits; child; that Tomasa was dead; that he had written the will exhibit A; that it was all in his writing
that from his experience and observation he believed that the name "Tomasa" and "Yap Caong," except the last part, which was written by Carlos Sobaco; that he had written the will Exhibit A at
appearing in the signature on Exhibit A were written by different person. the request of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who
had instructed him as to the terms of the will ; that the deceased had not spoken to him concerning
the terms of the will; that the will was written in the dining room of the residence of the deceased;
Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that Tomasa was in another room different from that in which the will was written; that the will was
that while he was a student in the Ateneo de Manila, he had studied penmanship; that he could not not written in the presence of Tomasa; that he signed the will as a witness in the room where
tell exactly when that was, except that he had concluded his course in the year 1882; that since Tomasa was lying; that the other witnesses signed the will in the same room that when he went
that time he had been a telegraph operator for seventeen years and that he had acted as an into the room where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his
expert in hand- writing in the courts in the provinces. hands; that when Lorenzo came to the bed he showed the will to his sister (Tomasa) and
requested her to sign it; that she was lying stretched out on the bed and two women, who were
taking care of her, helped her to sit up, supporting her by lacing their hands at her back; that when
Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will
she started to write her name, he withdrew from the bed on account of the best inside the room;
of the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in
when he came back again to the sick bed the will was signed and was again in the hands of
accordance with her request and under her directions; that she had signed it; that the same had
Lorenzo; that he did not see Tomasa sign the will because he withdrew from the room; that he did
been signed by three witnesses in her presence and in the presence of each other; that the will
not know whether Tomasa had been informed of the contents of the will or not; he supposed she
was written in her house; that she was sick and was lying in her bed, but that she sat up to sign the
must have read it because Lorenzo turned the will over to her; that when Lorenzo asked her to
will; that she signed the will with great difficulty; that she was signed in her right mind.
sign the will, he did not know what she said — he could not hear her voice; that he did not know
whether the sick woman was him sign the will or not; that he believed that Tomasa died the next
The said Severo Tabora was also called as a witness again during the rehearing. He testified that day after the will had been signed; that the other two witnesses, Timoteo Paez and Severo Tabora,
he knew Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a had signed the will in the room with the sick woman; that he saw them sign the will and that they
witness to Exhibit A (the will of August 11, 1909) was placed there by him; that the deceased, saw him sign it; that he was not sure whether the testatrix could have seen them at the time they
Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she signed it signed the will or not; that there was a screen before the bed; that he did not think that Lorenzo
before he (the witness) did; that he did not know whether anybody there told her to sign the will or had been giving instructions as to the contents of the will; that about ten or fifteen minutes elapsed
not; that he signed two bills; that he did not know La O; that he did not believe that Tomasa had from the time Lorenzo handed the will to Tomasa before she started to sign it; that the pen with
signed the will (Exhibit A) before he arrived at the house; that he was not sure that he had seen which she signed the will as given to her and she held it.
Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and there was a
screen at the door and he could not see; that he was called a a witness to sign the second will and
Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong
was told by the people there that it was the same as the first; that the will (Exhibit A) was on a
and that she was dead; that she had made two wills; that the first one was written by La O and the
table, far from the patient, in the house but outside the room where the patient was; that the will
second by Zacarias; that he was present at the time Zacarias wrote the second one; that he was
was signed by Paez and himself; that Anselmo Zacarias was there; that he was not sure whether
present when the second will was taken to Tomasa for signature; that Lorenzo had told Tomasa
Anselmo Zacarias signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong
that the second will was exactly like the first; that Tomasa said she could not sign it.
could see the table on which the will was written at the time it was signed or not; that there were
many people in the house; that he remembered the names of Pedro and Lorenzo; that he could
not remember the names of any others; that the will remained on the table after he signed it; that On cross examination he testified that there was a lot of visitors there; that Zacarias was not there;
after he signed the will he went to the room where Tomasa was lying; that the will was left on the that Paez and Tabora were there; that he had told Tomasa that the second will was exactly like the
table outside; that Tomasa was very ill; that he heard the people asking Tomasa to sign the will first.
after he was (the witness) had signed it; that he saw Paez sign the will, that he could not
remember whether Anselmo Zacarias had signed the will, because immediately after he and Paez
signed it, he left because he was hungry; that the place where the table was located was in the During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses.
same house, on the floor, about two steps down from the floor on which Tomasa was. There is nothing in their testimony, however, which in our opinion is important.

Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that
Elizaga Yap Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A). she knew Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa
Papa declared that he was a physician; that he knew Tomasa Elizaga Yap Caong; that he had during the last week of her illness; that Tomasa had made two wills; that she was present when
treated her in the month of August; that he visited her first on the 8th day of August; that he visited the second one was executed; that a lawyer had drawn the will in the dining room and after it had
her again on the 9th and 10th days of August; that on the first visit he found the sick woman been drawn and everything finished , it was taken to where Doña Tomasa was, for her signature;
completely weak — very weak from her sickness, in the third stage of tuberculosis; that she was that it was taken to her by Anselmo Zacarias; that she was present at the time Tomasa signed the
lying in bed; that on the first visit he found her with but little sense, the second day also, and on the will that there were many other people present also; that she did not see Timoteo Paez there; that
third day she had lost all her intelligence; that she died on the 11th of August; tat he was requested she saw Severo Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde
to issue the death certificate; that when he asked her (Tomasa) whether she was feeling any pain Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa that the second
or anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as will was the same sa the first; that Tomasa asked her to help her to sit up and to put a pillow to her
he believed, by the stage of uraemia from which she was suffering. back when Zacarias gave her some paper or document and asked her to sign it; that she saw
Tomasa take hold of the pen and try to sign it but she did not see the place she signed the
document, for the reason that she left the room; that she saw Tomasa sign the document but did
Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses not see on what place on the document she signed; and that a notary public came the next
during the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a
morning; that Tomasa was able to move about in the bed; that she had seen Tomasa in the act of With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not
starting to write her signature when she told her to get her some water. of sound mind and memory at the time of the execution of the will, we find the same conflict in the
declarations of the witnesses which we found with reference to the undue influence. While the
testimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Caong, yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the
Elizaga Yap Caong and knew that she had made a will; that he saw the will at the time it was execution of the will in question (Exhibit A). Several witnesses testified that at the time the will was
written; that he saw Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa to sign presented to her for her signature, she was of sound mind and memory and asked for a pen and
the will; that Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the ink and kept the will in her possession for ten or fifteen minutes and finally signed it. The lower
will on a table near the bed; that the table was outside the curtain or screen and near the entrance court found that there was a preponderance of evidence sustaining the conclusion that Tomasa
to the room where Tomasa was lying. Elizaga Yap Caong was of sound mind and memory and in the possession of her faculties at the
time she signed this will. In view of the conflict in the testimony of the witnesses and the finding of
the lower court, we do not feel justified in reversing his conclusions upon that question.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and
that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him
instructions; that Tomasa had said that she sign the will; that the will was on a table near the bed With reference to the third assignment of error, to wit, that the lower court committed an error in
of Tomasa; that Tomasa, from where she was lying in the bed, could seethe table where the declaring that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909,
witnesses had signed the will. Exhibit 1), is identical with that which appears in the second will (August 11, 1909, Exhibit A), it
may be said:
During the rehearing certain other witnesses were also examined; in our opinion, however, it is
necessary to quote from them for the reason that their testimony in no way affects the First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit
preponderance of proof above quoted. 1), was not the question presented to the court. The question presented was whether or not she
had duly executed the will of August 11, 1909 (Exhibit A).
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion,
reached the conclusion that the last will and testament of Tomasa Elizaga Yap Caong, which was Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will
attached to the record and marked Exhibit A was the last will and testament of the said Tomasa of August 6, 1909. Several witnesses testified to that fact. The mere fact, however, that she
Elizaga Yap Caong and admitted it to probate and ordered that the administrator therefore executed a former will is no proof that she did not execute a later will. She had a perfect right, by
appointed should continue as such administrator. From that order the protestants appealed to this will, to dispose of her property, in accordance with the provisions of law, up to the very last of
court, and made the following assignments of error: moment her life. She had a perfect right to change, alter, modify or revoke any and all of her
former wills and to make a new one. Neither will the fact that the new will fails to expressly revoke
all former wills, in any way sustain the charge that she did not make the new will.
I. The court erred in declaring that the will, Exhibit A, was executed by the deceased
Tomasa Yap Caong, without the intervention of any external influence on the part of
other persons. Third. In said third assignment of error there is involved in the statement that "The signature of
Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in
her second will (Exhibit A)" the inference that she had not signed the second will and all the
II. The court erred in declaring that the testator had clear knowledge and knew what
argument of the appellants relating to said third assignment of error is based upon the alleged fact
she was doing at the time of signing the will.
that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified that they saw
her write the name "Tomasa." One of the witnesses testified that she had written her full name. We
III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong are of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap
in the first will, Exhibit 1, is identical with that which appears in the second will, Exhibit Caong signed any portion of her name tot he will, with the intention to sign the same, that the will
A. amount to a signature. It has been held time and time again that one who makes a will may sign
the same by using a mark, the name having been written by others. If writing a mark simply upon a
will is sufficient indication of the intention of the person to make and execute a will, then certainly
IV. The court erred in declaring that the will, Exhibit A, was executed in accordance the writing of a portion or all of her name ought to be accepted as a clear indication of her intention
with the law. to execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs.
Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's
Will, 61 Penn., 196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)
With reference to the first assignment of error, to wit, that undue influence was brought to bear
upon Tomasa Elizaga Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the
lower court found that no undue influence had been exercised over the mind of the said Tomasa We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited
Elizaga Yap Caong. While it is true that some of the witnesses testified that the brother of Tomasa, by the appellees, which was known as "Knox's Appeal." In this case one Harriett S. Knox died very
one Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the suddenly on the 17th of October, 1888, at the residence of her father. After her death a paper was
other hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of found in her room, wholly in her handwriting, written with a lead pencil, upon three sides of an
the execution of the will, to influence her mind in any way. The lower court having had an ordinary folded sheet of note paper and bearing the signature simply of "Harriett." In this paper the
opportunity to see, to hear, and to note the witnesses during their examination reached the deceased attempted to make certain disposition of her property. The will was presented for
conclusion that a preponderance of the evidence showed that no undue influence had been used. probate. The probation was opposed upon the ground that the same did not contain the signature
we find no good reason in the record for reversing his conclusions upon that question. of the deceased. That was the only question presented to the court, whether the signature, in the
form above indicated, was a sufficient signature to constitute said paper the last will and testament G.R. No. L-40207 September 28, 1984
of Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In
deciding that question, Justice Mitchell said:
ROSA K. KALAW, petitioner,
vs.
The precise case of a signature by the first name only, does not appear to have arisen HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
either in England or the United States; but the principle on which the decisions already City, and GREGORIO K. KALAW, respondents.
referred to were based, especially those in regard to signing by initials only, are equally
applicable to the present case, and additional force is given to them by the decisions
as to what constitutes a binding signature to a contract. (Palmer vs. Stephens, 1 Denio, Leandro H. Fernandez for petitioner.
478; Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls,
etc. Co. vs. Goddard, 14 How. (U. S.), 446.)
Antonio Quintos and Jose M. Yacat for respondents.

The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is
held to "sign" as effectually as if he had written his initials or his full name. It would seem to be
sufficient, under the law requiring a signature by the person making a will, to make his mark, to
place his initials or all or any part of his name thereon. In the present case we think the proof MELENCIO-HERRERA, J.:
shows, by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full
name, did at least sign her given name "Tomasa," and that is sufficient to satisfy the statute.
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
With reference to the fourth assignment of error, it may be said that the argument which was Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24,
preceded is sufficient to answer it also. 1968.

During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap The holographic Will reads in full as follows:
Caong did not sign her name in the presence of the witnesses and that they did not sign their
names in their presence nor in the presence of each other. Upon that question there is
considerable conflict of proof. An effort was made to show that the will was signed by the My Last will and Testament
witnesses in one room and by Tomasa in another. A plan of the room or rooms in which the will
was signed was presented as proof and it was shown that there was but one room; that one part of
the room was one or two steps below the floor of the other; that the table on which the witnesses In the name of God, Amen.
signed the will was located upon the lower floor of the room. It was also shown that from the bed in
which Tomasa was lying, it was possible for her to see the table on which the witnesses signed the I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
will. While the rule is absolute that one who makes a will must sign the same in the presence of the disposing mind and memory, do hereby declare thus to be my last will and testament.
witnesses and that the witnesses must sign in the presence of each other, as well as in the
presence of the one making the will, yet, nevertheless, the actual seeing of the signatures made is
not necessary. It is sufficient if the signatures are made where it is possible for each of the 1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance
necessary parties, if they desire to see, may see the signatures placed upon the will. with the rights of said Church, and that my executrix hereinafter named provide and erect at the
expose of my state a suitable monument to perpetuate my memory.
In cases like the present where there is so much conflict in the proof, it is very difficult for the
courts to reach conclusions that are absolutely free from doubt. Great weight must be given by xxx xxx xxx
appellate courts who do not see or hear the witnesses, to the conclusions of the trial courts who
had that opportunity.
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole
heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in
Upon a full consideration of the record, we find that a preponderance of the proof shows that substance, that the holographic Will contained alterations, corrections, and insertions without the
Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all proper authentication by the full signature of the testatrix as required by Article 814 of the Civil
her faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court Code reading:
admitting said will to probate is hereby affirmed with costs.

Art. 814. In case of any insertion, cancellation, erasure or alteration in a

holographic will the testator must authenticate the same by his full
signature.

ROSA's position was that the holographic Will, as first written, should be given effect and probated
so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in given effect because she failed to authenticate it in the manner required by law by affixing her full
part: signature,

The document Exhibit "C" was submitted to the National Bureau of The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
Investigation for examination. The NBI reported that the handwriting, the alterations in a holographic Will, which affect only the efficacy of the altered words themselves but
signature, the insertions and/or additions and the initial were made by one not the essence and validity of the Will itself. As it is, with the erasures, cancellations and
and the same person. Consequently, Exhibit "C" was the handwriting of the alterations made by the testatrix herein, her real intention cannot be determined with certitude. As
decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article
'C', should be admitted to probate although the alterations and/or insertions 814 of the new Civil Code was derived:
or additions above-mentioned were not authenticated by the full signature
of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner
contends that the oppositors are estopped to assert the provision of Art. ... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia
814 on the ground that they themselves agreed thru their counsel to submit que no declara la nulidad de un testamento olografo que contenga
the Document to the NBI FOR EXAMINATIONS. This is untenable. The palabras tachadas, enmendadas o entre renglones no salvadas por el
parties did not agree, nor was it impliedly understood, that the oppositors testador bajo su firnia segun previene el parrafo tercero del mismo, porque,
would be in estoppel. en realidad, tal omision solo puede afectar a la validez o eficacia de tales
palabras, y nunca al testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las condiciones necesarias para la
The Court finds, therefore, that the provision of Article 814 of the Civil Code validez del testamento olografo, ya porque, de admitir lo contrario, se
is applicable to Exhibit "C". Finding the insertions, alterations and/or Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada
additions in Exhibit "C" not to be authenticated by the full signature of the afectasen a la parte esencial y respectiva del testamento, vinieran a anular
testatrix Natividad K. Kalaw, the Court will deny the admission to probate of este, y ya porque el precepto contenido en dicho parrafo ha de entenderse
Exhibit "C". en perfecta armonia y congruencia con el art. 26 de la ley del Notariado
que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se salven en la forma
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of prevenida, paro no el documento que las contenga, y con mayor
Natividad K. Kalaw is hereby denied. motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas
no tengan importancia ni susciten duda alguna acerca del pensamiento del
testador, o constituyan meros accidentes de ortografia o de purez
SO ORDERED.
escrituraria, sin trascendencia alguna(l).

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
Mas para que sea aplicable la doctrina de excepcion contenida en este
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her
ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados
right of testamentary disposition. Reconsideration was denied in an Order, dated November 2,
sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo
1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no
substancial la express voluntad del testador manifiesta en el documento.
necessity for interpretation."
Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo
un testamento olografo por no estar salvada por el testador la enmienda
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, del guarismo ultimo del año en que fue extendido3(Emphasis ours).
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not the original unaltered text after subsequent alterations and insertions
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should
September 3, 1973, is hereby affirmed in toto. No costs.
be probated or not, with her as sole heir.

SO ORDERED.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
gave an Identical commentary when he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
Relova, J., took no part.

However, when as in this case, the holographic Will in dispute had only one substantial provision,
which was altered by substituting the original heir with another, but which alteration did not carry
the requisite of full authentication by the full signature of the testator, the effect must be that the
entire Will is voided or revoked for the simple reason that nothing remains in the Will after that
which could remain valid. To state that the Will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix. But that change of mind can neither be
Separate Opinions G.R. No. L-3378 August 22, 1951

TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO. NAZARIO

TRILLANA, administrator-appellee,
vs.
TEEHANKEE, J., concurring: CONSORCIA P. CRISOSTOMO, ET ALS, petitioners-appellants.

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial Francisco R. Capistrano and Jesus T. Quiambao for petitioners and appellants.
court's factual finding that the peculiar alterations in the holographic will crossing out Rosa's name Jose G. Generoso and Jose B. Bautista for administrator and appellee.
and instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by
the testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an
educated person would unthinkingly make such crude alterations instead of consulting her lawyer FERIA, J.:
and writing an entirely new holographic wig in order to avoid any doubts as to her change of heir. It
should be noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother
Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration This is an appeal from an order of the Court of First Instance of Bulacan denying the appellants'
crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is petition for relief from the judgment of the said court allowing the will of October 19, 1948,
initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly executed by the deceased Damasa Crisostomo.
denied, since the same was not duly authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The original unaltered will naming Rosa as
The appellants, in support of their sole assignment that the lower court erred in denying their
sole heir cannot, however, be given effect in view of the trial court's factual finding that the testatrix
petition for relief from the judgment of January 5, 1949, admitting to probate the will of October 19,
had by her own handwriting substituted Gregorio for Rosa, so that there is no longer any will
1948, submits to this Court three propositions, to wit: (a) "The judgment of January 5 was obtained
naming Rosa as sole heir. The net result is that the testatrix left no valid will and both Rosa and
through fraud," (b) "The lower court failed to perform its legal duty to set date for proving the will of
Gregorio as her next of kill succeed to her intestate estate.
August 16, 1948;" and (c) "The failure to set aside a date for proving the will of August 16 with the
will of October 19 was entirely due to the lower court's fault or negligence."

In support of their proposition (a), attorneys for the appellant allege that the fraud in obtaining the
judgment of January 5 consisted in that the proponents of the will of October 19 did not cause
personal notice of the hearing to be made upon the legal heirs of the decedent, contrary to the
requirement of Rule 77, sec. 4 of the Rules of Court. We can not consider now for the first time in
Separate Opinions this appeal the question whether the lower court (not the proponents) complied with the
requirement of said sec. 4 of Rule 77 of the Rules of Court, for that question has not been raised
by the appellants in the court below, either in their original petition for relief of May 12, 1949 (pp. 2-
TEEHANKEE, J., concurring: 8, Record on Appeal), or in their motion for reconsideration dated August 27, 1949, of the order
denying their petition for relief (pp. 67-71). And there being no evidence to the contrary, the legal
presumption is that the court which probated the will of October, 19, 1948., complied with its duty
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial
and acted in lawful exercise of its jurisdiction in probating said will (Sec. 69 (m) (n), Rule 123 of the
court's factual finding that the peculiar alterations in the holographic will crossing out Rosa's name
Rules of Court). Besides, appellee's attorney, in the statement of facts in to the appellants' petition
and instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by
for relief, stated that "This Honorable Court set its hearing [of the petition for allowance of the will
the testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an
of October 19, 1948] on December 2, 1948. Copy of this order was published in "The Star
educated person would unthinkingly make such crude alterations instead of consulting her lawyer
Reporter", newspaper of general circulation in Bulacan on November 5, 12 and 19 respectively,
and writing an entirely new holographic wig in order to avoid any doubts as to her change of heir. It
and the corresponding notices served by the office of the Clerk of Court, in accordance with law"
should be noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother
(pp. 25 26, Record on Appeal). And the attorneys for the petitioners-appellant had not denied said
Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration
statement.
crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly
denied, since the same was not duly authenticated by the full signature of the executrix as The petitioners-appellants having failed to show that the judgment of the lower court of January 5,
mandatorily required by Article 814 of the Civil Code. The original unaltered will naming Rosa as 1948, probating the will of testatrix of October 19, was obtained through fraud, the lower court did
sole heir cannot, however, be given effect in view of the trial court's factual finding that the testatrix not commit any error in denying the appellant's petition for relief under sec. 2, Rule 38 of the Rules
had by her own handwriting substituted Gregorio for Rosa, so that there is no longer any will of Court, and therefore it is not necessary for us to discuss and pass upon the other propositions of
naming Rosa as sole heir. The net result is that the testatrix left no valid will and both Rosa and the appellant.
Gregorio as her next of kill succeed to her intestate estate.

Where a will is duly probated after publication pursuant to 630 of the Code of Civil
Procedure, the order admitting the will is, in the absence of fraud, effective against an
persons. The fact that an heir or other interested party lives so far away as to make it
impossible for such party to be present at the date appointed for the, probate of the will
 does not render the order of probate void for lack of due process. (In re Estate of
Johnson, 39 Phil. 156)

Besides, even assuming without deciding, that under sec. 3 of Rule 77, the court shall set aside a
date for proving a will even without petition when it is delivered to the, court having jurisdiction, as
contended by the appellants, the lower court was right in not setting a date for proving the will of
August 16, 1948, because this will was expressly and absolutely revoked by the will of October 19,
1948, executed by the same executrix or deceased, which was filed for allowance on November 1,
1948, with the same Court of First Instance of Bulacan. According to the attorneys for the
appellant, the will dated August 16, 1948, was sent together with a writing called "Manifestation" by
registered mail on October 30, 1948, from Manila to the Court of First Instance of Bulacan, by
Attorney Mr. Tomas V. Barnes, and said will must have been received by the Clerk of Said Court
on or after November 1, 1948, the date when the subsequent will of October 19, was filed for
probate. It stands to reason that if two wills are presented for allowance but one of them revoked
will cannot be included in the probate of the latter subsequent will, because it would be a waste of
time to allow the revoked will if the subsequent revoking will is allowed. The revoked will may be
probated and allowed only if the subsequent revoking will is disallowed. (11. McAra vs .MacCay, L.
R. 23 Ir., 138; Pepper vs. Pepper, Ir. R. 5 Eq., 85; Matter of Palmer, 58 L.J. P.D. and Adm., 44;
Matter of Stephens, 22 L.T. Rep., N.S. 727.) [68 C.J. 886]

Besides, the appellants in the present case, who merely allege in their petition for relief that they
are "nephews and nieces and therefore legal heirs of the deceased Damasa Crisostomo," without
specifying the degree of relationship they had the latter, do not pretend that it if the will October 19,
1949, be disallowed, they will inherit the estate left by the testatrix. They contend that said will
should be probated jointly or together with the will of August 16, 1948, and the latter be allowed
instead of the former. As in her will of October 19, 1949, as well in that of August 16, 1948, the
testatrix is leaving all her properties as legacies to other persons, the appellants have no interest in
the probate of said wills, and they can not appeal from the judgment which allowed one of them
instead of the other.

Appellants argue that they are in interested parties and therefore may appeal in the present case,
because in the event the will of October 19 is disallowed and in its that of August 16 is allowed,
and the legacies in the latter are declared invalid or the legatees incapable to inherit, the legacies
will go to appellants. This argument has no merit. In civil actions and special proceedings, unless
otherwise provided by law, the interest in order that a person may be a party on appeal must be
material and direct, so that he will be materially and directly benefited or injured by the court's
order, decree or judgment: and not indirect or contingent (Espinosa vs. Barrios, 40 Off. Gaz., [8
Supp. No. 12]. p. 145). The interest claimed by the appellants is purely contingent or dependent
upon several uncertain and future events to (1) The disallowance of the will of October 19, 1948
(2)The allowance of the will of August 16, 1948, and (3) invalidation of certain legacies left in said
will of August 16, 1948.

In view of all the foregoing, the order appealed from is affirmed with costs against the appellants.
So ordered.