G.R. No. 123486. August 12, 1999. *      Roderico C.

Villaroya for private
EUGENIA RAMONAL CODOY and MANUEL respondents.
RAMONAL, petitioners, vs. EVANGELINE R.
CALUGAY, JOSEPHINE SALCEDO and PARDO, J.:
EUFEMIA PATIGAS, respondents.
Before us is a petition for review on certiorari of
Wills and Succession; Holographic the decision of the Court of Appeals  and its 1

Wills; Statutory Construction; Words and resolution denying reconsideration, ruling:

Phrases; Article 811 of the Civil Code is _______________
mandatory; “Shall– in a statute commonly denotes an
imperative obligation and is inconsistent with the idea  In CA-G.R. CV No. 31365, promulgated on October 9,
1

of discretion and that the presumption is that the word 1995, Justice Pedro A. Ramirez, ponente, Justices Angelina
“shall,– when used in a statute, is mandatory.–We are Sandoval
convinced, based on the language used, that Article 335
811 of the Civil Code is mandatory. The word “shall– VOL. 312, AUGUST 12, 1999 335
connotes a mandatory order. We have ruled that
“shall– in a statute commonly denotes an imperative Codoy vs. Calugay
obligation and is inconsistent with the idea of “Upon the unrebutted testimony of appellant
discretion and that the presumption is that the word Evangeline Calugay and witness Matilde Ramonal
“shall,– when used in a statute, is mandatory. Binanay, the authenticity of testators holographic will
Same; Same; Same; The goal to be achieved by has been established and the handwriting and
Article 811 is to give effect to the wishes of the signature therein (Exhibit S) are hers, enough to
deceased and the evil to be prevented is the possibility probate said will. Reversal of the judgment appealed
that unscrupulous individuals who for their benefit from and the probate of the holographic will in
_______________ question be called for. The rule is that after plaintiff
has completed presentation of his evidence and the
*
 FIRST DIVISION. defendant files a motion for judgment on demurrer to
334
evidence on the ground that upon the facts and the law
plaintiff has shown no right to relief, if the motion is
33 SUPREME COURT granted and the order to dismissal is reversed on
4 REPORTS ANNOTATED appeal, the movant loses his right to present evidence
in his behalf (Sec. 1, Rule 35, Revised Rules of
Codoy vs. Calugay Court). Judgment may, therefore, be rendered for
will employ means to defeat the wishes of the appellant in the instant case.
testator.–Laws are enacted to achieve a goal intended “Wherefore, the order appealed from is
and to guide against an evil or mischief that aims to REVERSED and judgment rendered allowing the
prevent. In the case at bar, the goal to achieve is to probate of the holographic will of the testator Matilde
give effect to the wishes of the deceased and the evil Seño Vda. de Ramonal.– 2

to be prevented is the possibility that unscrupulous

individuals who for their benefit will employ means to The facts are as follows:
defeat the wishes of the testator. On April 6, 1990, Evangeline Calugay,
Same; Same; Same; The possibility of a false Josephine Salcedo and Eufemia Patigas, devisees
document being adjudged as the will of the testator and legatees of the holographic will of the
cannot be eliminated, which is why if the holographic deceased Matilde Seño Vda. de Ramonal, filed
will is contested, the law requires three witnesses to
with the Regional Trial Court, Misamis Oriental,
declare that the will was in the handwriting of the
deceased.–In the case of Ajero vs. Court of Appeals, Branch 18, a petition  for probate of the
3

we said that “the object of the solemnities surrounding holographic will of the deceased, who died on
the execution of wills is to close the door against bad January 16, 1990.
faith and fraud, to avoid substitution of wills and In the petition, respondents claimed that the
testaments and to guaranty their truth and authenticity. deceased Matilde Seño Vda. de Ramonal, was of
Therefore, the laws on this subject should be sound and disposing mind when she executed the
interpreted in such a way as to attain these primordial will on August 30, 1978, that there was no fraud,
ends. But, on the other hand, also one must not lose undue influence, and duress employed in the
sight of the fact that it is not the object of the law to person of the testator, and the will was written
restrain and curtail the exercise of the right to make a voluntarily.
will.– However, we cannot eliminate the possibility of
The assessed value of the decedent’s property,
a false document being adjudged as the will of the
testator, which is why if the holographic will is including all real and personal property was about
contested, that law requires three witnesses to declare P400,000.00, at the time of her death. 4

______________
that the will was in the handwriting of the deceased.
Gutierrez and Conrado M. Vasquez, Jr., concurring, CA
PETITION for review on certiorari of a decision Rollo, pp. 83-92.
of the Court of Appeals.  Decision, Court of Appeals Records, pp. 83-93.
2

 Original Records, Petition, pp. 1-7.

3

The facts are stated in the opinion of the Court.  Ibid., p. 4.

4

     Amadeo D. Seno for petitioners. 336

33 SUPREME COURT REPORTS
6 ANNOTATED will of the deceased was filed. He produced and
Codoy vs. Calugay identified the records of the case. The documents
On June 28, 1990, Eugenia Ramonal Codoy and presented bear the signature of the deceased,
Manuel Ramonal filed an opposition  to the 5 Matilde Seño Vda. de Ramonal, for the purpose
petition for probate, alleging that the holographic of laying the basis for comparison of the
will was a forgery and that the same is even handwriting of the testatrix, with the writing
illegible. This gives an impression that a “third treated or admitted as genuine by the party
hand– of an interested party other than the “true against whom the evidence is offered.
hand– of Matilde Seño Vda. de Ramonal Generosa Senon, election registrar of Cagayan
executed the holographic will. de Oro, was presented to produce and identify the
Petitioners argued that the repeated dates voter’s affidavit of the decedent. However, the
incorporated or appearing on the will after every voters’ affidavit was not produced for the same
disposition is out of the ordinary. If the deceased was already destroyed and no longer available.
was the one who executed the will, and was not Matilde Ramonal Binanay, testified that the
forced, the dates and the signature should appear deceased Matilde Seño Vda. de Ramonal was her
at the bottom after the dispositions, as regularly aunt, and that after the death of Matilde’s
done and not after every disposition. And husband, the latter lived with her in her parent’s
assuming that the holographic will is in the house for eleven (11) years, from 1958 to 1969.
handwriting of the deceased, it was procured by During those eleven (11) years of close
undue and improper pressure and influence on the association with the deceased, she acquired
part of the beneficiaries, or through fraud and familiarity with her signature and handwriting as
trickery. she used to accompany her (deceased Matilde
Respondents presented six (6) witnesses and Seño Vda. de Ramonal) in collecting rentals from
various documentary evidence. Petitioners instead her various tenants of commercial buildings, and
of presenting their evidence, filed a demurrer  to 6 the deceased always issued receipts. In addition to
evidence, claiming that respondents failed to this, she (witness Matilde Binanay) assisted the
establish sufficient factual and legal basis for the deceased in posting the records of the accounts,
probate of the holographic will of the deceased and carried personal letters of the deceased to her
Matilde Seño Vda. de Ramonal. creditors.
On November 26, 1990, the lower Court Matilde Ramonal Binanay further testified that
issued an order, the dispositive portion of which at the time of the death of Matilde Vda. de
reads: Ramonal, she left a holographic will dated August
“WHEREFORE, in view of the foregoing 30, 1978, which was personally and entirely
consideration, the Demurrer to Evidence having being written, dated and signed, by the deceased and
well taken, same is granted, and the petition for that all the dispositions therein, the dates, and the
probate of the document (Exhibit “S–) on the signatures in said will, were that of the deceased.
purported Holographic Will of the late Matilde Seño 338
Vda. de Ramonal, is denied for insufficiency of 33 SUPREME COURT REPORTS
evidence and lack of merits.– 7
8 ANNOTATED
On December 12, 1990, respondents filed a notice Codoy vs. Calugay
of appeal,  and in support of their appeal, the
8 Fiscal Rodolfo Waga testified that before he was
respondents once again reiterated the testimony of appointed City Fiscal of Cagayan de Oro, he was
the following witnesses, a practicing lawyer, and handled all the pleadings
_______________ and documents signed by the deceased in
connection with the intestate proceedings of her
5
 Original Record, Opposition, pp. 13-17.
6
 Demurrer to Evidence, pp. 140-155, October 13, 1990.
late husband, as a result of which he is familiar
7
 Original Records, Order, p. 192. with the handwriting of the latter. He testified that
8
 Ibid., Notice of Appeal (November 29, 1990), p. 194. the signature appearing in the holographic will
337
was similar to that of the deceased, Matilde Seño
VOL. 312, AUGUST 12, 1999 337 Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita
Codoy vs. Calugay Vedad, an employee of the Department of
namely: (1) Augusto Neri; (2) Generosa Senon; Environment and Natural Resources, Region 10.
(3) Matilde Ramonal Binanay; (4) Teresita She testified that she processed the application of
Vedad; (5) Fiscal Rodolfo Waga; and (6) the deceased for pasture permit and was familiar
Evangeline Calugay. with the signature of the deceased, since the
To have a clear understanding of the deceased signed documents in her presence, when
testimonies of the witnesses, we recite an account the latter was applying for pasture permit.
of their testimonies. Finally, Evangeline Calugay, one of the
Augusto Neri, Clerk of Court, Court of First respondents, testified that she had lived with the
Instance of Misamis Oriental, where the special deceased since birth, and was in fact adopted by
proceedings for the probate of the holographic the latter. That after a long period of time she
became familiar with the signature of the “x x x even if the genuineness of the holographic will
deceased. She testified that the signature were contested, we are of the opinion that Article 811
appearing in the holographic will is the true and of our present civil code can not be interpreted as to
genuine signature of Matilde Seño Vda. de require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under
Ramonal.
penalty of having the probate denied. Since no witness
The holographic will which was written in may have been present at the execution of the
Visayan, is translated in English as follows: holographic will, none being required by law (Art.
“Instruction 810, new Civil Code), it becomes obvious that the
existence of witnesses possessing the requisite
*** qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding
“1. My share at Cogon, Raminal Street, for
and producing any three witnesses; they must be
Evangeline Calugay.
witnesses “who know the handwriting and signature
“(Sgd) Matilde Vda de Ramonal
of the testator– and who can declare (truthfully, of
“August 30, 1978     
course, even if the law does not express) “that the will
“2. Josefina Salcedo must be given 1,500 square
and the signature are in the handwriting of the
meters at Pinikitan Street.
testator.– There may be no available witness
“(Sgd) Matilde Vda de Ramonal
acquainted with the testator’s hand; or even if so
339 familiarized, the witness may be unwilling to give a
VOL. 312, AUGUST 12, 1999 339 positive opinion. Compliance with the rule of
paragraph 1 of article 811 may thus become an
Codoy vs. Calugay
impossibility. That is evidently the reason why the
“August 30, 1978      second paragraph of article 811 prescribes that–
“3. My jewelry’s shall be divided among:
“in the absence of any competent witness referred
to in the preceding paragraph, and if the court deems it
1. “1.Eufemia Patigas necessary, expert testimony may be resorted to.–
2. “2.Josefina Salcedo “As can be seen, the law foresees the possibility
3. “3.Evangeline Calugay that no qualified witness may be found (or what
amounts to the same thing, that no competent witness
“(Sgd) Matilde Vda de Ramonal may be willing to testify to the authenticity of the
“August 30, 1978      will), and provides for resort to expert evidence to
“4. I bequeath my one (1) hectare land at supply the deficiency.
Mandumol, Indahag to Evangeline R. Calugay “It may be true that the rule of this article
“(Sgd) Matilde Vda de Ramonal (requiring that three witnesses be presented if the will
“August 30, 1978      is contested and only one if no contest is had) was
“5. Give the 2,500 Square Meters at Sta. Cruz derived from the rule established for ordinary
Ramonal Village in favor of Evangeline R. Calugay, testaments (CF Cabang vs. Delfinado, 45 Phil. 291;
Helen must continue with the Sta. Cruz, once I am no Tolentino v. Francisco, 57 Phil. 742). But it can not be
longer around. ignored that the requirement can be considered
“(Sgd) Matilde Vda de Ramonal mandatory only in case of ordinary testaments,
“August 30, 1978      precisely because the presence of at least three
“6. Bury me where my husband Justo is ever witnesses at the execution of ordinary wills is made by
buried. law essential to their validity (Art. 805). Where the
“(Sgd) Matilde Vda de Ramonal will is holographic, no witness need be present (Art.
“August 30,1978      10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd
“Gene and Manuel: results are to be avoided.
“Again, under Art. 811, the resort to expert
“Follow my instruction in order that I will rest evidence is conditioned by the words “if the court
peacefully. deem it necessary,– which reveal that what the law
“Mama      deems essential is that the court should be con-
“Matilde Vda de Ramonal
341
On October 9, 1995, the Court of Appeals, VOL. 312, AUGUST 12, 1999 341
rendered deci-sion  ruling that the appeal was
9

Codoy vs. Calugay

meritorious. Citing the decision in the case of vinced of the will’s authenticity. Where the prescribed
Azaola vs. Singson, 109 Phil. 102, penned by Mr. number of witnesses is produced and the court is
Justice J.B.L. Reyes, a recognized authority in convinced by their testimony that the will is genuine,
civil law, the Court of Appeals held: it may consider it unnecessary to call for expert
_______________ evidence. On the other hand, if no competent witness
is available, or none of those produced is convincing,
9
 Court of Appeals Rollo, Decision, pp. 83-92.
the court may still, and in fact it should resort to
340 handwriting experts. The duty of the court, in fine, is
34 SUPREME COURT REPORTS to exhaust all available lines of inquiry, for the state is
0 ANNOTATED as much interested as the proponent that the true
intention of the testator be carried into effect.
Codoy vs. Calugay
 “Paraphrasing Azaola vs. Singson, even if the explicitly declare that the signature in the will is
genuineness of the holographic will were contested, the genuine signature of the testator.
Article 811 of the civil code cannot be interpreted as We are convinced, based on the language
to require the compulsory presentation of three used, that Article 811 of the Civil Code is
witnesses to identify the handwriting of the testator, mandatory. The word “shall– connotes a
under penalty of the having the probate denied. No
mandatory order. We have ruled that “shall– in a
witness need be present in the execution of the
holographic will. And the rule requiring the statute commonly denotes an imperative
production of three witnesses is merely permissive. obligation and is inconsistent with the idea of
What the law deems essential is that the court is discretion and that the presumption is that the
convinced of the authenticity of the will. Its duty is to word “shall,– when used in a statute, is
exhaust all available lines of inquiry, for the state is as mandatory. 11

much interested in the proponent that the true Laws are enacted to achieve a goal intended
intention of the testator be carried into effect. And and to guide against an evil or mischief that aims
because the law leaves it to the trial court to decide if to prevent. In the case at bar, the goal to achieve
experts are still needed, no unfavorable inference can is to give effect to the wishes of the deceased and
be drawn from a party’s failure to offer expert the evil to be prevented is the possibility that
evidence, until and unless the court expresses
unscrupulous individuals who for their benefit
dissatisfaction with the testimony of the lay
witnesses. 10
will employ means to defeat the wishes of the
testator.
According to the Court of Appeals, Evangeline So, we believe that the paramount
Calugay, Matilde Ramonal Binanay and other consideration in the present petition is to
witnesses definitely and in no uncertain terms determine the true intent of the deceased.
testified that the handwriting and signature in the _______________
holographic will were those of the testator herself.
 Pioneer Texturizing Corporation vs. National Labor
11

Thus, upon the unrebutted testimony of Relations Commission, 280 SCRA 806 (1997); see
appellant Evangeline Calugay and witness also Director of Lands vs. Court of Appeals, 276 SCRA
Matilde Ramonal Binanay, the Court of Appeals 276 (1997); Cecilleville Realty and Service Corporation vs.
sustained the authenticity of the holographic will Court of Appeals, 278 SCRA 819 (1997); Baranda vs.
Gustilo, 165 SCRA 757 (1988).
and the handwriting and signature therein, and
allowed the will to probate. 343
Hence, this petition. VOL. 312, AUGUST 12, 1999 343
The petitioners raise the following issues: Codoy vs. Calugay
_______________
An exhaustive and objective consideration of the
Ibid.
10 evidence is imperative to establish the true intent
of the testator.
342 It will be noted that not all the witnesses
34 SUPREME COURT REPORTS presented by the respondents testified explicitly
2 ANNOTATED that they were familiar with the handwriting of
Codoy vs. Calugay the testator. In the case of Augusto Neri, clerk of
court, Court of First Instance, Misamis Oriental,
1. (1)Whether or not the ruling of the case he merely identified the record of Special
of Azaola vs. Singson, 109 Phil. 102, Proceedings No. 427 before said court. He was
relied upon by the respondent Court of not presented to declare explicitly that the
Appeals, was applicable to the case. signature appearing in the holographic was that of
2. (2)Whether or not the Court of Appeals the deceased.
erred in holding that private respondents Generosa E. Senon, the election registrar of
had been able to present credible Cagayan de Oro City, was presented to identify
evidence to prove that the date, text, and the signature of the deceased in the voters’
signature on the holographic will were affidavit, which was not even produced as it was
written entirely in the hand of the no longer available.
testatrix. Matilde Ramonal Binanay, on the other hand,
3. (3)Whether or not the Court of Appeals testified that:
erred in not analyzing the signatures in Q And you said for eleven (11) years
the holographic will of Matilde Seño . Matilde Vda. de Ramonal resided
Vda. de Ramonal. with your parents at Pinikitan,
Cagayan de Oro City. Would you tell
In this petition, the petitioners ask whether the the court what was your occ upation
provisions of Article 811 of the Civil Code are or how did Matilde Vda. de Ramonal
permissive or mandatory. The article provides, as
keep her self busy that time?
a requirement for the probate of a contested
holographic will, that at least three witnesses A Collecting rentals.
.
Q From where? A. Carrying letters.
. Q. Letters of whom?
A From the land rentals and A. Matilde
. commercial buildings at Pabayo- Q. To whom?
Gomez streets. 12
A. To her creditors. 15

  xxx   xxx
Q Who sometime accompany her? Q. You testified that at the time of her
. death she left a will. I am showing
A I sometimes accompany her to you a document with its title
. “tugon– is this the document you
Q In collecting rentals does she issue are referring to?
. receipts? A. Yes, sir.
A Yes, sir.
13 ______________
. 14
 TSN, September 5, 1990, pp. 24-26.
  xxx 15
Ibid., pp. 28-29.
Q Showing to you the receipt dated 23 345
. October 1979, is this the one you are VOL. 312, 345
referring to as one of the receipts AUGUST
which she issued to them? 12, 1999
_______________
Codoy vs. Calugay
 TSN, September 5, 1990, p. 23.
12
Q. Showing to you this
Ibid., p. 24.
Exhibit “S,– there is that
13

344 handwritten “tugon,–

34 SUPREME COURT REPORTS whose handwriting is
4 ANNOTATED this?
Codoy vs. Calugay A. My aunt.
A. Yes, sir. Q. Why do you say this is the
Q. Now there is that signature of handwriting of your
Matilde Vda. De Ramonal, whose aunt?
signature is that Mrs. Binanay? A. Because I am familiar
A. Matilde Vda. De Ramonal. with her signature. 16

Q. Why do you say that that is a What Ms. Binanay saw were pre-prepared
signature of Matilde Vda. De receipts and letters of the deceased, which she
Ramonal? either mailed or gave to her tenants. She did not
A. I am familiar with her signature. declare that she saw the deceased sign a
Q. Now, you tell the court Mrs. document or write a note.
Further, during the cross-examination, the
Binanay, whether you know
counsel for petitioners elicited the fact that the
Matilde Vda. de Ramonal kept will was not found in the personal belongings of
records of the accounts of her the deceased but was in the possession of Ms.
tenants? Binanay. She testified that:
A. Yes, sir. Q Mrs. Binanay, when you were asked
Q. Why do you say so? . by counsel for the petitioners if the
A. Because we sometimes post a late Matilde Seno Vda. de Ramonal
record of accounts in behalf of left a will you said, yes?
Matilde Vda. De Ramonal. A Yes, sir.
Q. How is this record of accounts .
made? How is this reflected? Q Who was in possession of that will?
A. In handwritten. 14
.
  xxx A I.
Q. In addition to collection of rentals, .
posting records of accounts of Q Since when did you have the
tenants and deed of sale which you . possession of the will?
said what else did you do to acquire A It was in my mother’s possession.
familiarity of the signature of .
Matilde Vda. De Ramonal? Q So, it was not in your possession?
A. Posting records. .
Q. Aside from that? A Sorry, yes.
. A Yes, sir.
Q And when did you come into .
. possession since as you said this was Q Again the third signature of Matilde
originally in the possession of your . Vda. de Ramonal the letter L in
mother? Matilde is continued towards letter
A 1985.17
D.
. A Yes, sir.
  xxx .
Q Now, Mrs. Binanay was there any Q And there is a retracing in the word
. particular reason why your mother . Vda.?
left that will to you and therefore you A Yes, sir. 20

have that in your possession? .

A It was not given to me by my   xxx
. mother, I took that in the aparador _______________
when she died. 18
 TSN, September 5, 1990, p. 49.
_______________ 19
 TSN, p. 62.
20
 TSN, pp. 58-59.
 TSN, September 5, 1990, pp. 28-29.
16

 TSN, September 5, 1990, p. 48.

17
347

346
VOL. 312, 347
34 SUPREME COURT REPORTS AUGUST
6 ANNOTATED 12, 1999
Codoy vs. Calugay Codoy vs. Calugay
Q. After taking that document you Q. Now, that was 1979,
kept it with you? remember one year after the
A. I presented it to the fiscal. alleged holographic will.
Q. For what purpose? Now, you identified a
A. Just to seek advice. document marked as Exhibit
Q. Advice of what? R. This is dated January 8,
A. About the will. 18 1978 which is onlyabout
In her testimony it was also evident that Ms. eight months from August
Binanay kept the fact about the will from 30, 1978. Do you notice that
petitioners, the legally adopted children of the the signature Matilde Vda.
deceased. Such actions put in issue her motive of de Ramonal is beautifully
keeping the will a secret to petitioners and written and legible?
revealing it only after the death of Matilde Seño A. Yes, sir the handwriting
Vda. de Ramonal. shows that she was very
In the testimony of Ms. Binanay, the following exhausted.
were established:
Q. You just say that she was
Q Now, in 1978 Matilde Seno Vda. de very exhausted while that in
. Ramonal was not yet a sickly person 1978 she was healthy was
is that correct? not sickly and she was agile.
A Yes, sir. Now, you said she was
. exhausted?
Q She was up and about and was still A. In writing.
. uprightly and she could walk agilely Q. How did you know that she
and she could go to her building to was exhausted when you
collect rentals, is that correct? were not present and you
A Yes, sir. 19
just tried to explain yourself
. out because of the apparent
  xxx inconsistencies?
Q Now, let us go to the third signature A. That was I think. (sic)
. of Matilde Ramonal. Do you know Q. Now, you already observed
that there are retracings in the word this signature dated 1978,
Vda.? the same year as the alleged
A Yes, a little. The letter L is holographic will. In exhibit
. continuous. I, you will notice that there
Q And also in Matilde the letter L is is no retracing; there is no
. continued to letter D?
 hesitancy and the signature here below item No. 1, will you tell
was written on a fluid this court whose signature is this?
movement. x x x And in A. Yes, sir, that is her signature.
fact, the name Eufemia R. Q. Why do you say that is her
Patigas here refers to one of signature?
the petitioners? A. I am familiar with her signature. 23

A. Yes, sir.    
Q. You will also notice Mrs. So, the only reason that Evangeline can give as to
Binanay that it is not only why she was familiar with the handwriting of the
with the questioned deceased was because she lived with her since
signature appearing in the birth. She never declared that she saw the
alleged holographic will deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal
marked as Exhibit X but in
Waga, testified that:
the handwriting themselves,
Q Do you know Matilde Vda. de
here you will notice the
. Ramonal?
hesitancy and tremors, do
A Yes, sir I know her because she is
you notice that?
. my godmother the husband is my
A. Yes, sir.
21

godfather. Actually I am related to

Evangeline Calugay declared that the holographic
will was written, dated and signed in the the husband by consanguinity.
handwriting of the testator. She testified that: Q Can you tell the name of the
Q You testified that you stayed with the . husband?
. house of the spouses Matilde and A The late husband is Justo Ramonal. 24

Justo Ramonal for the period of 22 .

_______________
years. Could you tell the court the
services if any which you rendered to 22
 TSN, September 27, 1990, pp. 145-147.
Matilde Ramonal? 23
 TSN, p. 148.
______________
24
 TSN, September 6, 1990, p. 74.

349
 TSN, pp. 64-66.
21

VOL. 312, 349

348 AUGUST
34 SUPREME COURT REPORTS 12, 1999
8 ANNOTATED Codoy vs. Calugay
Codoy vs. Calugay   xxx
A. During my stay I used to go with Q. Can you tell this court
her to the church, to the market and whether the spouses Justo
then to her transactions. Ramonal and Matilde
Q. What else? What services that you Ramonal have legitimate
rendered? children?
A. After my college days I assisted her A. As far as I know they have
in going to the bank, paying taxes no legitimate children. 25

and to her lawyer.   xxx

Q. What was your purpose of going to Q. You said after becoming a
her lawyer? lawyer you practice your
A. I used to be her personal driver. profession? Where?
Q. In the course of your stay for 22 A. Here in Cagayan de Oro
years did you acquire familiarity of City.
the handwriting of Matilde Vda. de Q. Do you have services
Ramonal? rendered with the deceased
A. Yes, sir. Matilde Vda. de Ramonal?
Q. How come that you acquired A. I assisted her in terminating
familiarity? the partition, of properties.
A. Because I lived with her since Q. When you said assisted,
birth.
22
you acted as her counsel?
  xxx Any sort of counsel as in
Q. Now, I am showing to you Exhibit what case is that, Fiscal?
S which is captioned “tugon– dated A. It is about the project
Agosto 30, 1978 there is a signature partition to terminate the
 property, which was under Vda. de Ramonal.
the court before. 26
Q. Now, in item No. 2 there is that
  xxx signature here of Matilde Vda. de
Q. Appearing in special Ramonal, can you tell the court
proceeding No. 427 is the whose signature is this?
amended inventory which is A. Well, that is similar to that
marked as Exhibit N of the signature appearing in the project of
estate of Justo Ramonal and partition.
there appears a signature Q. Also in item no. 3 there is that
over the type written word signature Matilde Vda. de
Matilde vda de Ramonal, Ramonal, can you tell the court
whose signature is this? whose signature is that?
A. That is the signature of A. As I said, this signature also seems
Matilde Vda. de Ramonal. to be the signature of Matilde Vda.
Q. Also in Exhibit n-3, whose de Ramonal.
signature is this? Q. Why do you say that?
A. This one here that is the A. Because there is a similarity in the
signature of Mrs. Matilde way it is being written.
Vda. de Ramonal. 27
Q. How about this signature in item
  xxx no. 4, can you tell the court whose
Q. Aside from attending as signature is this?
counsel in that Special A. The same is true with the signature
Proceeding Case No. 427 in item no. 4. It seems that they are
what were the other similar. 29

assistance wherein you   xxx

were rendering professional Q. Mr. Prosecutor, I heard you when
service to the deceased you said that the signature of
Matilde Vda. de Ramonal? Matilde Vda. de Ramonal
A. I can not remember if I Appearing in exhibit S seems to be
have assisted her in other the signature of Matilde Vda. de
matters but if there are Ramonal?
documents to show that I A. Yes, it is similar to the project of
have assisted then I can partition.
recall. 28
Q So you are not definite that this is
  xxx the signature of Matilde Vda. de
______________ Ramonal. You are merely
 Ibid.
25
supposing that it seems to be her
 TSN, September 6, 1990, pp. 76-77.
26 signature because it is similar to
 Ibid.
27
the signature of the project of
 TSN, September 6, 1990, pp. 79-80.
28

partition which you have made?

350 A. That is true. 30

35 SUPREME COURT REPORTS _______________

0 ANNOTATED 29
 TSN, pp. 80-82.
Codoy vs. Calugay 30
 TSN, September 6, 1990, pp. 83-84.
Q. Now, I am showing to you exhibit
351
S which is titled “tugon,– kindly go VOL. 312, AUGUST 12, 1999 351
over this document, Fiscal Waga
Codoy vs. Calugay
and tell the court whether you are
From the testimonies of these witnesses, the
familiar with the handw riting Court of Appeals allowed the will to probate and
contained in that document marked disregard the requirement of three witnesses in
as exhibit “S–? case of contested holographic will, citing the
A. I am not familiar with the decision in Azaola vs. Singson,  ruling that the31

handwriting. requirement is merely directory and not

Q. This one, Matilde Vda. de mandatory.
Ramonal, whose signature is this? In the case of Ajero vs. Court of Appeals,  we 32

A. I think this signature here it seems said that “the object of the solemnities
to be the signature of Mrs. Matilde surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid
substitution of wills and testaments and to to allow petitioners to adduce evidence in support
guaranty their truth and authenticity. Therefore, of their opposition to the probate of the
the laws on this subject should be interpreted in holographic will of the deceased Matilde Seño
such a way as to attain these primordial ends. But, Vda. de Ramonal.
on the other hand, also one must not lose sight of No costs.
the fact that it is not the object of the law to SO ORDERED.
restrain and curtail the exercise of the right to      Davide,
make a will.– Jr. (C.J.), Puno, Kapunan and Ynares-Santiago,
However, we cannot eliminate the possibility JJ.,concur.
of a false document being adjudged as the will of
the testator, which is why if the holographic will Appealed decision set aside.
is contested, that law requires three witnesses to Notes.–The requirements of Article 813 of the
declare that the will was in the handwriting of the New Civil Code affects the validity of the
deceased. dispositions contained in the holographic will, but
The will was found not in the personal not its probate. (Ajero vs. Court of Appeals, 236
belongings of the deceased but with one of the SCRA 488 [1994])
respondents, who kept it even before the death of A will is essentially ambulatory–at any time
the deceased. In the testimony of Ms. Binanay, prior to the testator’s death, it may be changed or
she revealed that the will was in her possession as revoked, and until ad-
________________
early as 1985, or five years before the death of the
deceased. 33
 Original Record, Exhibit “S,– p. 101.
There was no opportunity for an expert to 34
 Ibid., Exhibit “T,– p. 103.
compare the signature and the handwriting of the
35
 Ibid., Exhibit “V,– p. 105.
deceased with other documents signed and 353
executed by her during her lifetime. The only
chance at comparison was during the cross- VOL. 312, AUGUST 12, 1999 353
examination of Ms. Binanay when the lawyer of Garcia vs. House of Representatives
petitioners asked Ms. Binanay to compare the Electoral Tribunal
documents which contained the signature of the mitted to probate, it has no effect whatever and no
deceased with that of the holographic will and she right can be claimed thereunder; An owner’s
is not a handwriting expert. Even the former intention to confer title in the future to persons
lawyer of the deceased expressed doubts as to the possessing property by his tolerance is not
authenticity of the signature in the holographic inconsistent with the former’s taking back
will. possession in the meantime for any reason
_______________ deemed sufficient. (Cañiza vs. Court of
Appeals, 268 SCRA 640 [1997])
 Supra.
31

 236 SCRA 489 (1994).

32

––o0o––
352
35 SUPREME COURT REPORTS
2 ANNOTATED
Codoy vs. Calugay
A visual examination of the holographic will
convince us that the strokes are different when
compared with other documents written by the
testator. The signature of the testator in some of
the disposition is not readable. There were uneven
strokes, retracing and erasures on the will.
Comparing the signature in the holographic
will dated August 30, 1978,  and the signatures in
33

several documents such as the application letter

for pasture permit dated December 30, 1980,  and
34

a letter dated June 16, 1978,  the strokes are

35

different. In the letters, there are continuous flows

of the strokes, evidencing that there is no
hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain
that the holographic will was in the handwriting
by the deceased.
IN VIEW WHEREOF, the decision appealed
from is SET ASIDE. The records are ordered
remanded to the court of origin with instructions