cases

Republic of the PhilippinesSUPREME COURTManilaSECOND DIVISIONG.R. No. 82027 March 29, 1990ROMARICO G. VITUG, petitioner, vs.THE HONORABLE COURT O APPEALS a!" RO#ENA AUSTINO$CORONA, respondents.Rufino B. Javier Law Office for petitioner.Quisumbing, Torres & Evangelista for private respondent. SARMIENTO, J.:his case is a chapter in an earlier suit decided b! this Court 1 involvin" the probate of the t#o #ills of the late Dolores $uchan"co Vitu", #ho died in Ne# %or&, '. S.(., on Nove)ber *+, *,-+, na)in" private respondent Ro#ena .austino/Corona e0ecutri0. In our said decision, #e upheld the appoint)ent of Nenita (lonte as co/special ad)inistrator of Mrs. Vitu"1s estate #ith her 2Mrs. Vitu"1s3 #ido#er, petitioner Ro)arico 4. Vitu", pendin" probate.On 5anuar! *6, *,-7, Ro)arico 4. Vitu" filed a )otion as&in" for authorit! fro) the probate court to sell certain shares of stoc& and real properties belon"in" to the estate to cover alle"edl! his advances to the estate in the su) of P889,96*.88, plus interests, #hich he clai)ed #ere personal funds. (s found b! the Court of (ppeals, 2the alle"ed advances consisted of P7-,*:9.:+ spent for the pa!)ent of estate ta0, P7*-,-6:.;9 as deficienc! estate ta0, and P,+,9:,.,, as oined b! both the codicil and the Civil Code, of seiFure of $ot No. *6,; and its reversion to the estate of (le>a =elleFa in case of such non/co)pliance, this Court dee)s it proper to order the reconve!ance of title over $ot No. *6,; fro) the estates of 5or"e Rabadilla to the estate of (le>a=elleFa. Co#ever, plaintiff/appellant )ust institute separate proceedin"s to re/open (le>a =elleFa1s estate,secure the appoint)ent of an ad)inistrator, and distribute $ot No. *6,; to (le>a =elleFa1s le"al heirs in order to enforce her ri"ht, reserved to her b! the codicil, to receive her le"ac! of *++ piculs of su"ar per !ear out of the produce of $ot No. *6,; until she dies.(ccordin"l!, the decision appealed fro) is SE (SIDE and another one entered orderin" defendants/appellees, as heirs of 5or"e Rabadilla, to reconve! title over $ot No. *6,;, to"ether #ith its fruits and interests, to the estate of (le>a =elleFa.SO ORDERED.a =elleFa on the basis of para"raph 8 of the Codicil, and in rulin" that the testa)entar! institution of Dr. 5or"e Rabadilla is a )odal institution #ithin the purvie# of (rticle --; of the Ne# Civil Code.he petition is not i)pressed #ith )erit.Petitioner contends that the Court of (ppeals erred in resolvin" the appeal in accordance #ith (rticle --; of the Ne# Civil Code on )odal institutions and in deviatin" fro) the sole issue raised #hich is the absence or pre)aturit! of the cause of action. Petitioner )aintains that (rticle --; does not find application as there #as no )odal institution and the testatri0 intended a )ere si)ple substitution / i.e. the instituted heir, Dr. 5or"e Rabadilla, #as to be substituted b! the testatri01s ect CodicilD on #hich issue the Court of (ppeals ruled in accordance #ith la#.It is a "eneral rule under the la# on succession that successional ri"hts are trans)itted fro) the )o)ent of death of the decedent*+ and co)pulsor! heirs are called to succeed b! operation of la#. he le"iti)ate children and descendants, in relation to their le"iti)ate parents, and the #ido# or #ido#er, are co)pulsor! heirs.** hus, the petitioner, his )other and sisters, as co)pulsor! heirs of the instituted heir, Dr. 5or"e Rabadilla, succeeded the latter b! operation of la#, #ithout need of further proceedin"s, and thesuccessional ri"hts #ere trans)itted to the) fro) the )o)ent of death of the decedent, Dr. 5or"e Rabadilla.'nder (rticle 998 of the Ne# Civil Code, inheritance includes all the propert!, ri"hts and obli"ations of a person, not e0tin"uished b! his death. Confor)abl!, #hatever ri"hts Dr. 5or"e Rabadilla had b! virtue of sub>ect Codicil #ere trans)itted to his forced heirs, at the ti)e of his death. (nd since obli"ations not e0tin"uished b! death also for) part of the estate of the decedentD corollaril!, the obli"ations i)posed b! the Codicil on the deceased Dr. 5or"e Rabadilla, #ere li&e#ise trans)itted to his co)pulsor! heirs upon his death.In the said Codicil, testatri0 (le>a =elleFa devised $ot No. *6,; to Dr. 5or"e Rabadilla, sub>ect to the condition that the usufruct thereof #ould be delivered to the herein private respondent ever! !ear. 'pon the death of Dr. 5or"e Rabadilla, his co)pulsor! heirs succeeded to his ri"hts and title over the said propert!, and the! also assu)ed his 2decedent1s3 obli"ation to deliver the fruits of the lot involved to herein private respondent. Such obli"ation of the instituted heir reciprocall! corresponds to the ri"ht of private respondent over the usufruct, the fulfill)ent or perfor)ance of #hich is no# bein" de)anded b! the latter throu"h the institution of the case at bar. herefore, private respondent has a cause of action a"ainst petitioner and the trial court erred in dis)issin" the co)plaint belo#.Petitioner also theoriFes that (rticle --; of the Ne# Civil Code on )odal institutions is not applicable because #hat the testatri0 intended #as a substitution / Dr. 5or"e Rabadilla #as to be substituted b! the testatri01s near descendants should there be nonco)pliance #ith the obli"ation to deliver the piculs of su"ar to private respondent.("ain, the contention is #ithout )erit.Substitution is the desi"nation b! the testator of a person or persons to ta&e the place of the heir or heirs first instituted. 'nder substitutions in "eneral, the testator )a! either 2*3 provide for the desi"nation of another heir to #ho) the propert! shall pass in case the ori"inal heir should die before hi)Eher, renounce the inheritance or be incapacitated to inherit, as in a si)ple substitution,*; or 2;3 leave hisEher propert! to one person #ith the e0press char"e that it be trans)itted subse?uentl! to another or others, as in a fideico))issar! substitution.*6 he Codicil sued upon conte)plates neither of the t#o.In si)ple substitutions, the second heir ta&es the inheritance in default of the first heir b! reason of incapacit!, predecease or renunciation.*: In the case under consideration, the provisions of sub>ect Codicildo not provide that should Dr. 5or"e Rabadilla default due to predecease, incapacit! or renunciation, the testatri01s near descendants #ould substitute hi). Ahat the Codicil provides is that, should Dr. 5or"e Rabadilla or his heirs not fulfill the conditions i)posed in the Codicil, the propert! referred to shall be seiFed and turned over to the testatri01s near descendants.Neither is there a fideico))issar! substitution here and on this point, petitioner is correct. In a fideico))issar! substitution, the first heir is strictl! )andated to preserve the 0ro0+r12 a!" 1o 1ra!3451 the sa)e later to the second heir.*7 In the case under consideration, the instituted heir is in fact allo#ed under the Codicil to alienate the propert! provided the ne"otiation is #ith the near descendants orthe sister of the testatri0. hus, a ver! i)portant ele)ent of a fideico))issar! substitution is lac&in"D the obli"ation clearl! i)posin" upon the first heir the preservation of the propert! and its trans)ission to the second heir. ect Codicil is in the nature of a )odal institution and therefore, (rticle --; of the Ne# Civil Code is the provision of la# in point. (rticles --; and --6 of the Ne# Civil Code provide@(rt. --;. he state)ent of the ob>ect of the institution or the application of the propert! left b! the testator, or the char"e i)posed on hi), shall not be considered as a condition unless it appears that such #as his intention.hat #hich has been left in this )anner )a! be clai)ed at once provided that the instituted heir or his heirs "ive securit! for co)pliance #ith the #ishes of the testator and for the return of an!thin" he or the! )a! receive, to"ether #ith its fruits and interests, if he or the! should disre"ard this obli"ation.(rt. --6. Ahen #ithout the fault of the heir, an institution referred to in the precedin" article cannot ta&e effect in the e0act )anner stated b! the testator, it shall be co)plied #ith in a )anner )ost analo"ous to and in confor)it! #ith his #ishes.he institution of an heir in the )anner prescribed in (rticle --; is #hat is &no#n in the la# of succession as aninstitucion sub modo or a )odal institution. In a )odal institution, the testator states 2*3 the ob>ect of the institution, 2;3 the purpose or application of the propert! left b! the testator, or 263 the char"e i)posed b! the testator upon the heir.*- ( ect propert! be inherited b! Dr. 5or"e Rabadilla. It is li&e#ise clearl! #orded that the testatri0 i)posed an obli"ation on the said instituted heir and his successors/in/interest to deliver one hundred piculs of su"ar to the herein private respondent, Marlena Coscolluela =elleFa, durin" the lifeti)e of the latter. Co#ever, the testatri0 did not )a&e Dr. 5or"e Rabadilla1s inheritance and the effectivit! of his institution as a devisee, dependent on the perfor)ance of the said obli"ation. It is clear, thou"h, that should the obli"ation be not co)plied #ith, the propert! shall be turned over to the testatri01s near descendants. he )anner of institution of Dr. 5or"e Rabadilla under sub>ect Codicil is evidentl! )odal in nature because it i)poses a char"e upon the instituted heir #ithout, ho#ever, affectin" the efficac! of such institution.hen too, since testa)entar! dispositions are "enerall! acts of liberalit!, an obli"ation i)posed upon the heir should not be considered a condition unless it clearl! appears fro) the Aill itself that such #as the intention of the testator. In case of doubt, the institution should be considered as )odal and not conditional.;;Neither is there tenabilit! in the other contention of petitioner that the private respondent has onl! a ri"ht of usufruct but not the ri"ht to seiFe the propert! itself fro) the instituted heir because the ri"ht to seiFe #as e0pressl! li)ited to violations b! the bu!er, lessee or )ort"a"ee.In the interpretation of Aills, #hen an uncertaint! arises on the face of the Aill, as to the application of an! of its provisions, the testator1s intention is to be ascertained fro) the #ords of the Aill, ta&in" into consideration the circu)stances under #hich it #as )ade.;6 Such construction as #ill sustain and uphold the Aill in all its parts )ust be adopted.;:Sub>ect Codicil provides that the instituted heir is under obli"ation to deliver One Cundred 2*++3 piculs of su"ar !earl! to Marlena =elleFa Coscuella. Such obli"ation is i)posed on the instituted heir, Dr. 5or"e Rabadilla, his heirs, and their bu!er, lessee, or )ort"a"ee should the! sell, lease, )ort"a"e or other#ise ne"otiate the propert! involved. he Codicil further provides that in the event that the obli"ation to deliver the su"ar is not respected, Marlena =elleFa Coscuella shall seiFe the propert! and turn it over to the testatri01s near descendants. he non/perfor)ance of the said obli"ation is thus #ith the sanction of seiFure of the propert! and reversion thereof to the testatri01s near descendants. Since the said obli"ationis clearl! i)posed b! the testatri0, not onl! on the instituted heir but also on his successors/in/interest, thesanction i)posed b! the testatri0 in case of non/fulfill)ent of said obli"ation should e?uall! appl! to the instituted heir and his successors/in/interest.Si)ilarl! unsustainable is petitioner1s sub)ission that b! virtue of the a)icable settle)ent, the said obli"ation i)posed b! the Codicil has been assu)ed b! the lessee, and #hatever obli"ation petitioner had beco)e the obli"ation of the lesseeD that petitioner is dee)ed to have )ade a substantial and constructive co)pliance of his obli"ation throu"h the consu))ated settle)ent bet#een the lessee and the private respondent, and havin" consu))ated a settle)ent #ith the petitioner, the recourse of the private respondent is the fulfill)ent of the obli"ation under the a)icable settle)ent and not the seiFure of sub>ect propert!.Suffice it to state that a Aill is a personal, sole)n, revocable and free act b! #hich a person disposes of his propert!, to ta&e effect after his death.;7 Since the Aill e0presses the )anner in #hich a person intends ho# his properties be disposed, the #ishes and desires of the testator )ust be strictl! follo#ed. hus, a Aill cannot be the sub>ect of a co)pro)ise a"ree)ent #hich #ould thereb! defeat the ver! purpose of )a&in" a Aill.#HEREORE, the petition is hereb! DISMISSED and the decision of the Court of (ppeals, dated Dece)ber ;6, *,,6, in C(/4.R. No. CV/67777 (..IRMED. No pronounce)ent as to costsSO OR-ERE-.Republic of the PhilippinesSUPREME COURTManilaEN =(NC G.R. No3. L$219%8$%9 Ma2 29, 1970VICENTE URIARTE, petitioner, vs.THE COURT O IRST INSTANCE O NEGROS OCCI-ENTAL 6121h )*"5c5a7 -531r5c18 THE COURT O IRST INSTANCE O MANILA, BRANCH IV, )UAN URIARTE .AMACONA a!" HIGINIO URIARTE, respondents.*orberto J. Quisumbing for petitioner.Ta+ada, Tee(an"ee & #arreon for respondents. -I.ON, J.:On October 6, *,86 petitioner Vicente 'riarte filed an ori"inal petition for certiorari I doc&eted as 4.R. $/;*,6- I a"ainst the respondents 5uan 'riarte Ha)acona, Ci"inio 'riarte, and the Courts of .irst Instance of Ne"ros Occidental and of Manila, =ranch IV, #ho #ill be referred to hereinafter as the Ne"ros Court and the Manila Court, respectivel! I pra!in"@... that after due proceedin"s >ud")ent be rendered annullin" the orders of *, (pril *,86 2(nne0 1C13 and ** 5ul! *,86 2(nne0 1I13 of respondent Ne"ros court dis)issin" the first instituted Special Proceedin" No. 86::, supra, and the order of * 5ul! *,86 2(nne0 1B13 ofrespondent Manila court den!in" petitioner1s omnibus )otion to intervene and to dis)iss the later/instituted Special Proceedin" No. 7*6,8, supra, both special proceedin"s pertainin" to the settle)ent of the sa)e estate of the sa)e deceased, and conse?uentl! annullin" all proceedin"s had in Special Proceedin" No. 7*6,8D supra, of the respondent Manila court as all ta&en #ithout >urisdiction..or the preservation of the ri"hts of the parties pendin" these proceedin"s, petitioner pra!s for the issuance of a #rit of preli)inar! in>unction en>oinin" respondents Manila court, 5uan 'riarte Ha)acona and Ci"inio 'riarte fro) proceedin" #ith Special Proceedin" No. 7*6,8, supra, until further orders of this Court.Reasons in support of said petition are stated therein as follo#s@8. Respondent Ne"ros court erred in dis)issin" its Special Proceedin" No. 86::, supra, and failin" to declare itself 1the court first ta&in" co"niFance of the settle)ent of the estateof1 the deceased Don 5uan 'riarte ! 4oite as prescribed in Rule 97 section * of the Rulesof Court. Respondent Manila court erred in failin" to dis)iss its Special Proceedin" No. 7*6,8, supra, not#ithstandin" proof of prior filin" of Special Proceedin" No. 86::, supra, in the Ne"ros court.he #rit of preli)inar! in>unction pra!ed for #as "ranted and issued b! this Court on October ;:, *,86.On (pril ;;, *,8: petitioner filed a"ainst the sa)e respondents a pleadin" entitled S'PP$EMEN($ PEIION .OR M(ND(M'S I doc&eted in this Court as 4.R. No. $/;*,6, I pra!in", for the reasons therein stated, that >ud")ent be rendered annullin" the orders issued b! the Ne"ros Court on Dece)ber 9, *,86 and .ebruar! ;8, *,8:, the first disapprovin" his record on appeal and the second den!in" his )otion for reconsideration, and further co))andin" said court to approve his record on appeal and to "ive due course to his appeal. On 5ul! *7, *,8: Ae issued a resolution deferrin" action on this Supple)ental Petition until the ori"inal action for certiorari 24.R. $/;*,6-3 is ta&en up on the )erits.On October ;*, *,86 the respondents in 4.R. $/;*,6- filed their ans#er traversin" petitioner1s contentionthat the respondent courts had co))itted "rave abuse of discretion in relation to the )atters alle"ed in the petition forcertiorari.It appears that on Nove)ber 8, *,8* petitioner filed #ith the Ne"ros Court a petition for the settle)ent of the estate of the late Don 5uan 'riarte ! 4oite 2Special Proceedin" No. 86::3 alle"in" therein, inter alia, that, as a natural son of the latter, he #as his sole heir, and that, durin" the lifeti)e of said decedent, petitioner had instituted Civil Case No. 8*:; in the sa)e Court for his co)pulsor! ac&no#led")ent as such natural son. 'pon petitioner1s )otion the Ne"ros Court appointed the Philippine National =an& as special ad)inistrator on Nove)ber *6, *,8* and t#o da!s later it set the date for the hearin" of the petition and ordered that the re?uisite notices be published in accordance #ith la#. he record discloses, ho#ever, that, for one reason or another, the Philippine, National =an& never actuall! ?ualified as special ad)inistrator.On Dece)ber *,, *,8*, Ci"inio 'riarte, one of the t#o private respondents herein, filed an opposition to the above/)entioned petition alle"in" that he #as a nephe# of the deceased 5uan 'riarte ! 4oite #ho had ud")ent for his co)pulsor! ac&no#led")ent as his natural child. Clearl! inferrable fro) this is that at the ti)e he filed the action, as #ell as #hen he co))enced the aforesaid special proceedin", he had not !et been ac&no#led"ed as natural son of 5uan 'riarte ! 4oite. 'p to this ti)e, no final >ud")ent to that effect appears to have been rendered.he record further discloses that the special proceedin" before the Ne"ros Court has not "one farther than the appoint)ent of a special ad)inistrator in the person of the Philippine National =an& #ho, as stated heretofore, failed to ?ualif!.On the other hand, it is not disputed that, after proper proceedin"s #ere had in Special Proceedin" No. 7*6,8, the Manila Court ad)itted to probate the docu)ent sub)itted to, it as the last #ill of 5uan 'riarte !4oite, the petition for probate appearin" not to have been contested. It appears further that, as stated heretofore, the order issued b! the Manila Court on 5ul! *, *,86 denied petitioner. Vicente 'riarte1s O)nibus Motion for Intervention, Dis)issal of Petition and (nnul)ent of said proceedin"s.$i&e#ise, it is not denied that to the )otion to dis)iss the special proceedin" pendin" before the Ne"ros Court filed b! Ci"inio 'riarte #ere attached a cop! of the alle"ed last #ill of 5uan 'riarte ! 4oite and of the petition filed #ith the Manila Court for its probate. It is clear, therefore, that al)ost fro) the start of Special Proceedin" No. 86::, the Ne"ros Court and petitioner Vicente 'riarte &ne# of the e0istence of the aforesaid last #ill and of the proceedin"s for its probate.he principal le"al ?uestions raised in the petition for certiorari are 2a3 #hether or not the Ne"ros Court erred in dis)issin" Special Proceedin" No. 88::, on the one hand, and on the other, 2b3 #hether the Manila Court si)ilarl! erred in not dis)issin" Special Proceedin" No. 7*6,8 not#ithstandin" proof of the prior filin" of Special Proceedin" No. 86:: in the Ne"ros Court.'nder the 5udiciar! (ct of *,:- JSection ::, para"raph 2e3K, Courts of .irst Instance have ori"inal e0clusive >urisdiction over urisprudence in this >urisdiction, testate proceedin"s, for the settle)ent of the estate of a deceased person ta&e precedence over intestate proceedin"s for the sa)e purpose. hus it has been held repeatedl! that, if in the course of intestate proceedin"s pendin" before a court of first instance it is found it hat the decedent had left a last #ill, proceedin"s for the probate of the latter should replace the intestate proceedin"s even if at that sta"e an ad)inistrator had alread! been appointed, the latter bein" re?uired to render final account and turn over the estate in his possession to the e0ecutor subse?uentl! appointed. his, ho#ever, is understood to be #ithout pre>udice that should the alle"ed last #ill be re>ected or is disapproved, the proceedin" shall continue as an intestac!. (s alread! adverted to, this is a clear indication that proceedin"s for the probate of a #ill en>o! priorit! over intestate proceedin"s.'pon the facts before 's the ?uestion arises as to #hether 5uan 'riarte Ha)acona should have filed the petition for the probate of the last #ill of 5uan 'riarte ! 4oite #ith the Ne"ros Court I particularl! in Special Proceedin" No. 86:: I or #as entitled to co))ence the correspondin" separate proceedin"s, as he did, in the Manila Court.he follo#in" considerations and the facts of record #ould see) to support the vie# that he should have sub)itted said #ill for probate to the Ne"ros Court, either in a separate special proceedin" or in an appropriate )otion for said purpose filed in the alread! pendin" Special Proceedin" No. 86::. In the first place, it is not in accord #ith public polic! and the orderl! and ine0pensive ad)inistration of >ustice to unnecessaril! )ultipl! liti"ation, especiall! if several courts #ould be involved. his, in effect, #as the result of the sub)ission of the #ill aforesaid to the Manila Court. In the second place, #hen respondent Ci"inio 'riarte filed an opposition to Vicente 'riarte1s petition for the issuance of letters of ad)inistration, he had alread! infor)ed the Ne"ros Court that the deceased 5uan 'riarte ! 4oite had left a #ill in Spain, of #hich a cop! had been re?uested for submission to said courtD and #hen the other respondent, 5uan 'riarte Ha)acona, filed his )otion to dis)iss Special Proceedin" No. 86::, he had sub)itted to the Ne"ros Court a cop! of the alle"ed #ill of the decedent, fro) #hich fact it )a! be inferred that, li&e Ci"inio 'riarte, he &ne# before filin" the petition for probate #ith the Manila Court that there #as alread! a special proceedin" pendin" in the Ne"ros Court for the settle)ent of the estate of the sa)e deceased person. (s far as Ci"inio 'riarte is concerned, it see)s ?uite clear that in his opposition to petitioner1s petition in Special Proceedin" No. 86::, he had e0pressl! pro)ised to sub)it said #ill for probate to the Ne"ros Court.=ut the fact is that instead of the aforesaid #ill bein" presented for probate to the Ne"ros Court, 5uan 'riarte Ha)acona filed the petition for the purpose #ith the Manila Court. Ae can not accept petitioner1s contention in this re"ard that the latter court had no >urisdiction to consider said petition, albeit #e sa! thatit #as not the proper venue therefor.It is #ell settled in this >urisdiction that wrong venue is )erel! a waiveable procedural defect, and, in the li"ht of the circu)stances obtainin" in the instant case, #e are of the opinion, and so hold, that petitioner has #aived the ri"ht to raise such ob>ection or is precluded fro) doin" so b! laches. It is enou"h to consider in this connection that petitioner &ne# of the e0istence of a #ill e0ecuted b! 5uan 'riarte ! 4oite since Dece)ber *,, *,8* #hen Ci"inio 'riarte filed his opposition to the initial petition filed in Special Proceedin" No. 86::D that petitioner li&e#ise #as served #ith notice of the e0istence 2presence3 of the alle"ed last #ill in the Philippines and of the filin" of the petition for its probate #ith the Manila Court since(u"ust ;-, *,8; #hen 5uan 'riarte Ha)acona filed a )otion for the dis)issal of Special Proceedin" No. 86::. (ll these not#ithstandin", it #as onl! on (pril *7, *,86 that he filed #ith the Manila Court in Special Proceedin" No. 7*6,8 an O)nibus )otion as&in" for leave to intervene and for the dis)issal and annul)ent of all the proceedin"s had therein up to that dateD thus enablin" the Manila Court not onl! to appoint an ad)inistrator #ith the #ill anne0ed but also to ad)it said #ill to probate )ore than five )onthsearlier, or )ore specificall!, on October 6*, *,8;. o allo# hi) no# to assail the e0ercise of >urisdiction over the probate of the #ill b! the Manila Court and the validit! of all the proceedin"s had in Special Proceedin" No. 7*6,8 #ould put a pre)iu) on his ne"li"ence. Moreover, it )ust be re)e)bered that this Court is not inclined to annul proceedin"s re"ularl! had in a lo#er court even if the latter #as not the proper venue therefor, if the net result #ould be to have the sa)e proceedin"s repeated in so)e other court of si)ilar >urisdictionD )ore so in a case li&e the present #here the ob>ection a"ainst said proceedin"s is raised too late.In his order of (pril *,, *,86 dis)issin" Special Proceedin" No. 86::, 5ud"e .ernandeF of the Ne"ros Court said that he #as urisdiction to declare #ho are the heirs of the deceased testator and #hetheror not a particular part! is or should be declared his ac&no#led"ed natural child 2II Moran on Rules of Court, *,79 Ed., p. :98D Conde vs. (ba!a, *6 Phil. ;:,D Severino vs. Severino, :: Phil. 6:6D $opeF vs. $opeF, 8- Phil. ;;9, and 5i)o"a/on vs. =el)onte, :9 O. 4. ***,3.Co)in" no# to the supple)ental petition for mandamus 24.R. No. $/;*,6,3, Ae are of the opinion, and so hold, that in vie# of the conclusions heretofore stated, the sa)e has beco)e )oot and acade)ic. If the said supple)ental petition is successful, it #ill onl! result in co)pellin" the Ne"ros Court to "ive due course to the appeal that petitioner #as ta&in" fro) the orders of said court dated Dece)ber 9, *,86 and .ebruar! ;8, *,8:, the first bein" the order of said court dis)issin" Special Proceedin" No. 86::, and thesecond bein" an order den!in" petitioner1s )otion for the reconsideration of said order of dis)issal. Said orders bein", as a result of #hat has been said heretofore be!ond petitioner1s po#er to contest, the conclusion can not be other than that the intended appeal #ould serve no useful purpose, or, #orse still, #ould enable petitioner to circu)vent our rulin" that he can no lon"er ?uestion the validit! of said orders.IN VIEA O. CE .ORE4OIN4 CONSIDER(IONS, >ud")ent is hereb! rendered den!in" the #rits pra!ed for and, as a result, the petition for certiorari filed in 4.R. No. $/;*,6-, as #ell as the supple)entalpetition formandamus doc&eted as 4.R. No. $/;*,6,, are hereb! dis)issed. he #rit of preli)inar! in>unction heretofore issued is set aside. Aith costs a"ainst petitioner.Republic of the PhilippinesSUPREME COURTManilaEN =(NCG.R. No. L$(801 March 1&, 1912)ULIANA BAGTAS, plaintiffs/appellee, vs.ISI-RO PAGUIO, ET AL., defendants/appellants.1alas and 2alaw for appellants. Jose 1antiago for appellee.TRENT, J.@his is an appeal fro) an order of the Court of .irst Instance of the Province of =ataan, ad)ittin" to probate a docu)ent #hich #as offered as the last #ill and testa)ent of Pio?uinto Pa"uio ! PiFarro. he #ill purports to have been e0ecuted in the pueblo of Pilar, Province of =ataan, on the *,th da! of (pril, *,+-. he testator died on the ;-th of Septe)ber, *,+,, a !ear and five )onths follo#in" the date of the e0ecution of the #ill. he #ill #as propounded b! the e0ecutri0, 5uliana =a"tas, #ido# of the decedent, and the opponents are a son and several "randchildren b! a for)er )arria"e, the latter bein" the childrenof a deceased dau"hter.he basis of the opposition to the probation of the #ill is that the sa)e #as not e0ecuted accordin" to the for)alities and re?uire)ents of the la# touchin" #ills, and further that the testator #as not in the full of en>o!)ent and use of his )ental faculties and #as #ithout the )ental capacit! necessar! to e0ecute a valid #ill.he record sho#s that the testator, Pio?uinto Pa"uio, for so)e fourteen of fifteen !ears prior to the ti)e ofhis death suffered fro) a paral!sis of the left side of his bod!D that a fe# !ears prior to his death his hearin" beca)e i)paired and that he lost the po#er of speech. O#in" to the paral!sis of certain )uscles his head fell to one side, and saliva ran fro) his )outh. Ce retained the use of his ri"ht hand, ho#ever, and #as able to #rite fairl! #ell. hrou"h the )ediu) of si"ns he #as able to indicate his #ishes to his #ife and to other )e)bers of his fa)il!.(t the ti)e of the e0ecution of the #ill there #ere present the four testa)entar! #itnesses, ("ustin Pa"uio, (nacleto Pa"uio, and Pedro Pa"uio, and attorne!, SeLor Marco, and one .lorentino Ra)os. (nacleto Pa"uio and the attorne! have since died, and conse?uentl! their testi)on! #as not available upon the trial of the case in the lo#er court. he other three testa)entar! #itnesses and the #itness .lorentino Ra)os testified as to the )anner in #hich the #ill #as e0ecuted. (ccordin" to the uncontroverted testi)on! of these #itnesses the #ill #as e0ecuted in the follo#in" )anner@Pio?uinto Pa"uio, the testator, #rote out on pieces of paper notes and ite)s relatin" to the disposition of his propert!, and these notes #ere in turn delivered to SeLor Marco, #ho transcribed the) and put the) in for). he #itnesses testif! that the pieces of paper upon #hich the notes #ere #ritten are delivered to attorne! b! the testatorD that the attorne! read the) to the testator as&in" if the! #ere his testa)entar! dispositionsD that the testator assented each ti)e #ith an affir)ative )ove)ent of his headD that after the #ill as a #hole had been thus #ritten b! the attorne!, it #as read in a loud voice in the presence of the testator and the #itnessesD that SeLor Marco "ave the docu)ent to the testatorD that the latter, after loo&in" over it, si"ned it in the presence of the four subscribin" #itnessesD and that the! in turn si"ned it inthe presence of the testator and each other.hese are the facts of record #ith reference to the e0ecution of the #ill and #e are in perfect accord #ith the >ud")ent of the lo#er court that the for)alities of the Code of Civil Procedure have been full! co)plied #ith.his brin"s us no# to a consideration of appellants1 second assi"n)ent of error, viF, the testator1s alle"ed )ental incapacit! at the ti)e of the e0ecution of the #ill. 'pon this point considerable evidence #as adduced at the trial. One of the attestin" #itnesses testified that at the ti)e of the e0ecution of the #ill the testator #as in his ri"ht )ind, and that althou"h he #as seriousl! ill, he indicated b! )ove)ents of his head #hat his #ishes #ere. (nother of the attestin" #itnesses stated that he #as not able to sa! #hether decedent had the full use of his )ental faculties or not, because he had been ill for so)e !ears, and that he 2the #itnesses3 #as not a ph!sician. he other subscribin" #itness, Pedro Pa"uio, testified in the lo#er court as a #itness for the opponents. Ce #as unable to state #hether or not the #ill #as the #ish ofthe testator. he onl! reasons he "ave for his state)ent #ere the infir)it! and advanced a"e of the testator and the fact that he #as unable to spea&. he #itness stated that the testator si"ned the #ill, and he verified his o#n si"nature as a subscribin" #itness..lorentino Ra)os, althou"h not an attestin" #itness, stated that he #as present #hen the #ill #as e0ecuted and his testi)on! #as cu)ulative in corroboration of the )anner in #hich the #ill #as e0ecuted and as to the fact that the testator si"ned the #ill. his #itness also stated that he had fre?uentl! transacted )atters of business for the decedent and had #ritten letters and )ade inventories of his propert! at his re?uest, and that i))ediatel! before and after the e0ecution of the #ill he had perfor)ed offices of his character. Ce stated that the decedent #as able to co))unicate his thou"hts b! #ritin". hetesti)on! of this #itness clearl! indicates the presence of )ental capacit! on the part of the testator. ()on" other #itnesses for the opponents #ere t#o ph!sician, Doctor =asa and Doctor Viado. Doctor =asa testified that he had attended the testator so)e four or five !ears prior to his death and that the latter had suffered fro) a cerebral con"estion fro) #hich the paral!sis resulted. he follo#in" ?uestion #as propounded to Doctor =asa@M. Referrin" to )ental condition in #hich !ou found hi) the last ti)e !ou attended hi), do !ou thin& he #as in his ri"ht )indN(. I can not sa! e0actl! #hether he #as in his ri"ht )ind, but I noted so)e )ental disorder, because #hen I spo&e to hi) he did not ans#er )e.Doctor =asa testified at )ore len"th, but the substance of his testi)on! is that the testator had suffered a paral!sis and that he had noticed so)e )ental disorder. Ce does not sa! that the testator #as not in his ri"ht )ind at the ti)e of the e0ecution of the #ill, nor does he "ive it at his opinion that he #as #ithout the necessar! )ental capacit! to )a&e a valid #ill. Ce did not state in #hat #a! this )ental disorder had )anifested itself other than that he had noticed that the testator did not repl! to hi) on one occasion #hen he visited hi).Doctor Viado, the other ph!sician, have never seen the testator, but his ans#er #as in repl! to a h!pothetical ?uestion as to #hat be the )ental condition of a person #ho #as 9, !ears old and #ho had suffered fro) a )alad! such as the testator #as supposed to have had accordin" to the testi)on! of Doctor =asa, #hose testi)on! Doctor Viado had heard. Ce replied and discussed at so)e len"th the s!)pto)s and conse?uences of the decease fro) #hich the testator had sufferedD he read in support of his state)ents fro) a #or& b! a 4er)an Ph!sician, Dr. Cer)an Eichost. In ans#er, ho#ever, to a direct ?uestion, he stated that he #ould be unable to certif! to the )ental condition of a person #ho #as sufferin" fro) such a disease.Ae do not thin& that the testi)on! of these t#o ph!sicians in an! #a! stren"thens the contention of the appellants. heir testi)on! onl! confir)s the fact that the testator had been for a nu)ber of !ears prior to his death afflicted #ith paral!sis, in conse?uence of #hich his ph!sician and )ental stren"th #as "reatl! i)paired. Neither of the) atte)pted to state #hat #as the )ental condition of the testator at the ti)e he e0ecuted the #ill in ?uestion. here can be no doubt that the testator1s infir)ities #ere of a ver! serious character, and it is ?uite evident that his )ind #as not as active as it had been in the earlier !ears of his life. Co#ever, #e can not include fro) this that he #antin" in the necessar! )ental capacit! to dispose of his propert! b! #ill.he courts have been called upon fre?uentl! to nullif! #ills e0ecuted under such circu)stances, but the #ei"ht of the authorit! is in support if the principle that it is onl! #hen those see&in" to overthro# the #ill have clearl! established the char"e of )ental incapacit! that the courts #ill intervene to set aside a testa)entar! docu)ent of this character. In the case of Bugnao vs. -bag 2*: Phil. Rep., *863, the ?uestion of testa)entar! capacit! #as discussed b! this court. he nu)erous citations there "iven fro) the decisions of the 'nited States courts are especiall! applicable to the case at bar and have our approval. In this >urisdiction the presu)ption of la# is in favor of the )ental capacit! of the testator and the burden is upon the contestants of the #ill to prove the lac& of testa)entar! capacit!. 2In the )atter of the #ill of Cabi"tin", *: Phil. Rep., :86D in the )atter of the #ill of =utalid, *+ Phil. Rep., ;9D CernaeF vs. CernaeF, * Phil. Rep., 8-,.3he rule of la# relatin" to the presu)ption of )ental soundness is #ell established, and the testator in thecase at bar never havin" been ad>ud"ed insane b! a court of co)petent >urisdiction, this presu)ption continues, and it is therefore incu)bent upon the opponents to overco)e this le"al presu)ption b! proper evidence. his #e thin& the! have failed to do. here are )an! cases and authorities #hich #e )i"ht cite to sho# that the courts have repeatedl! held that )ere #ea&ness of )ind and bod!, induced b!a"e and disease do not render a person incapable of )a&in" a #ill. he la# does not re?uire that a person shall continue in the full en>o!)ent and use of his pristine ph!sical and )ental po#ers in order to e0ecute a valid #ill. If such #ere the le"al standard, fe# indeed #ould be the nu)ber of #ills that could )eet such e0actin" re?uire)ents. he authorities, both )edical and le"al, are universal in state)ent that the ?uestion of )ental capacit! is one of de"ree, and that there are )an! "radations fro) the hi"hest de"ree of )ental soundness to the lo#est conditions of diseased )entalit! #hich are deno)inated as insanit! and idioc!.he ri"ht to dispose of propert! b! testa)entar! disposition is as sacred as an! other ri"ht #hich a person )a! e0ercise and this ri"ht should not be nullified unless )ental incapacit! is established in a positive and conclusive )anner. In discussin" the ?uestion of testa)entar! capacit!, it is stated in volu)e;-, 9+, of the ()erican and En"lish Enc!clopedia of $a#, that IContrar! to the ver! prevalent la! i)pression, perfect soundness of )ind is not essential to testa)entar! capacit!. ( testator )a! be afflicted #ith a variet! of )ental #ea&nesses, disorders, or peculiarities and still be capable in la# of e0ecutin" a valid #ill. 2See the nu)erous cases therecited in support of this state)ent.3he rule relatin" to testa)entar! capacit! is stated in =us#ell on Insanit!, section 687, and ?uoted #ith approval in #ampbell vs. #ampbell 2*6+ Ill., :883, as follo#s@o constitute a sound and disposin" )ind, it is not necessar! that the )ind shall be #holl! unbro&en, uni)paired, or unshattered b! disease or other#ise, or that the testator should be in the full possession of his reasonin" faculties.In note, * 5ar)an on Aills, 6-, the rule is thus stated@he ?uestion is not so )uch, that #as the de"ree of )e)or! possessed b! the testator, as, had he a disposin" )e)or!N Aas he able to re)e)ber the propert! he #as about to be?ueath, the )anner of disturbin" it, and the ob>ects of his bount!N In a #ord, #ere his )ind and )e)or! sufficientl! sound to enable hi) to &no# and understand the business in #hich he #as en"a"ed at the ti)e #hen he e0ecuted his #ill. 2See authorities there cited.3In 3ilson vs. $itc(ell 2*+* Penn., :,73, the follo#in" facts appeared upon the trial of the case@ he testator died at the a"e of nearl! *+; !ears. In his earl! !ears he #as an intelli"ent and #ell infor)ed )an. (bout seven !ears prior to his death he suffered a paral!tic stro&e and fro) that ti)e his )ind and )e)or! #ere )ush enfeebled. Ce beca)e ver! dull of hearin" and in conse?uence of the shrin&in" of hisbrain he #as affected #ith senile cataract causin" total blindness. Ce beca)e filth! and obscene in his habits, althou"h for)erl! he #as observant of the properties of life. he court, in co))entin" upon the case, said@Neither a"e, nor sic&ness, nor e0tre)e distress, nor debilit! of bod! #ill affect the capacit! to )a&e a #ill, if sufficient intelli"ence re)ains. he failure of )e)or! is not sufficient to create the incapacit!, unless it be total, or e0tend to his i))ediate fa)il! or propert!. . . .0 0 0 0 0 0 0 0 0Dou"al 2the testator3 had lived over one hundred !ears before he )ade the #ill, and his ph!sical and )ental #ea&ness and defective )e)or! #ere in stri&in" contrast #ith their stren"th in the )eridian of his life. Ce #as blindD not deaf, but hearin" i)pairedD his )ind acted slo#l!, he #as for"etful or recent events, especiall! of na)es, and repeated ?uestions in conversationD and so)eti)es, #hen aroused for sleep or slu)ber, #ould see) be#ildered. It is not sin"ular that so)e of those #ho had &no#n hi) #hen he #as re)ar&able for vi"or and intelli"ence, are of the opinion that his reason #as so far "one that he #as incapable of )a&in" a #ill, althou"h the! never heard hi) utter an irrational e0pression.In the above case the #ill #as sustained. In the case at bar #e )i"ht dra# the sa)e contrast as #as pictured b! the court in the case >ust ?uoted. he stri&in" chan"e in the ph!sical and )ental vi"or of the testator durin" the last !ears of his life )a! have led so)e of those #ho &ne# hi) in his earlier da!s to entertain doubts as to his )ental capacit! to )a&e a #ill, !et #e thin& that the state)ents of the #itnessesto the e0ecution of the #ill and state)ents of the conduct of the testator at that ti)e all indicate that he un?uestionabl! had )ental capacit! and that he e0ercised it on this occasion. (t the ti)e of the e0ecutionof the #ill it does not appear that his conduct #as irrational in an! particular. Ce see)s to have co)prehended clearl! #hat the nature of the business #as in #hich he #as en"a"ed. he evidence sho#that the #ritin" and e0ecution of the #ill occupied a period several hours and that the testator #as presentdurin" all this ti)e, ta&in" an active part in all the proceedin"s. ("ain, the #ill in the case at bar is perfectl! reasonable and its dispositions are those of a rational person..or the reasons above stated, the order probatin" the #ill should be and the sa)e is hereb! affir)ed, #ith costs of this instance a"ainst the appellants.Republic of the PhilippinesSUPREME COURTManilaEN =(NCG.R. No. &&&' S+01+49+r 18, 1909CATALINA BUGNAO, proponent/appellee, vs.RANCISCO UBAG, ET AL., contestants/appellants.Rodrigue4 and 5el Rosario for appellants. .ernando 1alas for appellee.CARSON, J.:his is an appeal fro) an order of the Court of .irst Instance of Oriental Ne"ros, ad)ittin" to probate a docu)ent purportin" to be the last #ill and testa)ent of Do)in"o 'ba", deceased. he instru)ent #as propounded b! his #ido#, Catalina =u"nao, the sole beneficiar! thereunder, and probate #as contested b! the appellants, #ho are brothers and sisters of the deceased, and #ho #ould be entitled to share in the distribution of his estate, if probate #ere denied, as it appears that the deceased left no heirs in the direct ascendin" or descendin" line.(ppellants contend that the evidence of record is not sufficient to establish the e0ecution of the alle"ed #ill in the )anner and for) prescribed in section 8*- of the Code of Civil ProcedureD and that at the ti)e #hen it is alle"ed that the #ill #as e0ecuted, 'ba" #as not of sound )ind and )e)or!, and #as ph!sicall! and )entall! incapable of )a&in" a #ill.he instru)ent propounded for probate purports to be the last #ill and testa)ent of Do)in"o 'ba", si"ned b! hi) in the presence of three subscribin" and attestin" #itnesses, and appears upon its face to have been dul! e0ecuted in accordance #ith the provisions of the Code of Civil Procedure touchin" the )a&in" of #ills.#o of the subscribin" #itnesses, Victor 5. =in"to! and Catalino MariLo, testified in support of the #ill, thelatter bein" the >ustice of the peace of the )unicipalit! #herein it #as e0ecutedD and their testi)on! #as corroborated in all i)portant details b! the testi)on! of the proponent herself, #ho #as present #hen the #ill #as )ade. It does not appear fro) the record #h! the third subscribin" #itness #as not calledD but since counsel for the contestants )a&es no co))ent upon his absence, #e thin& it )a! safel! be inferredthat there #as so)e "ood and sufficient reason therefore. In passin", ho#ever, it )a! be #ell to observe that, #hen because of death, sic&ness, absence, or for an! other reason, it is not practicable to call to the #itness stand all the subscribin" #itnesses to a #ill offered for probate, the reason for the absence of an!of these #itnesses should be )ade to appear of record, and this especiall! in cases such as the one at bar, #herein there is a contests.he subscribin" #itnesses "ave full and detailed accounts of the e0ecution of the #ill and s#ore that the testator, at the ti)e of its e0ecution, #as of sound )ind and )e)or!, and in their presence attached his si"nature thereto as his last #ill and testa)ent, and that in his presence and in the presence of each other, the! as #ell as the third subscribin" #itness. Despite the searchin" and e0haustive cross/e0a)ination to #hich the! #ere sub>ected, counsel for appellants could point to no fla# in their testi)on! save an alle"ed contradiction as to a sin"le incident #hich occurred at or about the ti)e #hen the #ill #ase0ecuted a contradiction, ho#ever, #hich #e thin& is )ore apparent than real. One of the #itnesses stated that the deceased sat up in bed and si"ned his na)e to the #ill, and that after its e0ecution food #as "iven hi) b! his #ifeD #hile the other testified that he #as assisted into a sittin" position, and #as "iven so)ethin" to eat before he si"ned his na)e. Ae thin& the evidence discloses that his #ife aided the sic& )an to sit up in bed at the ti)e #hen he si"ned his na)e to the instru)ent, and that he #as "iven nourish)ent #hile he #as in that position, but it is not ?uite clear #hether this #as i))ediatel! before or after, or both before and after he attached his si"nature to the #ill. o sa! that the sic& )an sat up or raised hi)self up in bed is not necessaril! in conflict #ith the fact that he received assistance in doin" soD and it is not at all i)probable or i)possible that nourish)ent )i"ht have been "iven to hi) both before and after si"nin" the #ill, and that one #itness )i"ht re)e)ber the for)er occasion and the other #itness )i"ht recall the latter, althou"h neither #itness could recall both. =ut, ho#ever this )a! have been, #e do not thin& that a sli"ht lapse of )e)or! on the part of one or the other #itness, as to the precise details of an uni)portant incident, to #hich his attention )a! not have been particularl! directed, is sufficient to raise a doubt as to the veracit! of these #itnesses, or as to the truth and accurac! of their recollection of the fact of the e0ecution of the instru)ent. Of course, a nu)ber of contradictions in the testi)on! of alle"ed subscribin" #itnesses to a #ill as to the circu)stances under #hich it #as e0ecuted, or even a sin"le contradiction as to a particular incident, #here the incident #as of such a nature that the intention of an! person #ho #as present )ust have been directed to it, and #here the contradictor! state)ents in re"ard to it are so clear and e0plicit as to ne"ative the possibilit! or probabilit! of )ista&e, )i"ht #ell be sufficient to >ustif! the conclusion that the #itnesses could not possibl! have been present, to"ether, at the ti)e #hen it is alle"ed the #ill #as e0ecutedD but the apparent contradictions in the testi)on! of the #itnesses in the case at bar fall far short of raisin" a doubt a to their veracit!, and on the other hand their testi)on! as a #hole "ives such clear, e0plicit, and detailed account of all that occurred, and is so convincin" and alto"ether satisfactor! that #e have no doubt that the trial >ud"e #ho heard the)testif! properl! accepted their testi)on! as #orth! of entire confidence and belief.he contestants put upon the stand four #itnesses for the purpose of provin" that at the ti)e and on the occasion #hen the subscribin" #itnesses testified that the #ill #as e0ecuted, these #itnesses #ere not in the house #ith the testator, and that the alle"ed testator #as at that ti)e in such ph!sical and )ental condition that it #as i)possible for hi) to have )ade a #ill. #o of these #itnesses, upon cross/e0a)ination, ad)itted that the! #ere not in the house at or bet#een the hours of four and si0 in the afternoon of the da! on #hich the #ill is alle"ed to have been )ade, this bein" the ti)e at #hich the #itnesses in support of the #ill testified that it #as e0ecuted. Of the other #itnesses, one is a contestant of the #ill, Macario 'ba", a brother of the testator, and the other, Canuto Sino!, his close relative. hese #itnesses s#ore that the! #ere in the house of the deceased, #here he #as l!in" ill, at or about the ti)e #hen it is alle"ed that the #ill #as e0ecuted, and that at that ti)e the alle"ed subscribin" #itnesses #ere not in the house, and the alle"ed testator #as so sic& that he #as unable to spea&, to understand, or to )a&e hi)self understood, and that he #as #holl! incapacitated to )a&e a #ill. =ut the testi)on! of Macario 'ba" is in our opinion #holl! un#orth! of credence. In addition to his )anifest interest in the result of the investi"ation, it clearl! discloses a fi0ed and settled purpose to overthro# the #ill at all costs, and to that end an utter disre"ard of the truth, and readiness to s#ear to an! fact #hich he i)a"ined #ould aid in securin" his ob>ect. (n ad)ittedl! "enuine and authentic si"nature of the deceased #as introduced in evidence for co)parison #ith the si"nature attached to the #ill, but this #itness in his an0iet! to den! the "enuineness of the si"nature of his brother to the #ill, pro)ptl! and positivel! s#ore that the ad)ittedl! "enuine si"nature #as not his brother1s si"nature, and onl! corrected his erroneous state)ent in response to a so)e#hat su""estive ?uestion b! his attorne! #hich evidentl! "ave hi) to understand that his for)er ans#er #as li&el! to pre>udice his o#n cause. On cross/e0a)ination, he #as forced to ad)it that because his brother and his brother1s #ife 2in those favor the #ill #as )ade3 #ere ("lipa!anos, he and his other brothers and sisters had not visited the) for )an! )onths prior to the one particular occasion as to #hich testifiedD and he ad)itted further, that, althou"h he lived near at hand, at no ti)e thereafter did he or an! of the other )e)bers of his fa)il! visit their d!in" brother, and that the! did not even attend the funeral. If the testi)on! of this #itness could be accepted as true, it #ould be a re)ar&able coincidence indeed, that the subscribin" #itnesses to the alle"ed #ill should have falsel! pretended to have >oined in its e0ecution on the ver! da!, and at the precise hour, #hen this interested #itness happened to pa! his onl! visit to his brother durin" his last illness, so that the testi)on! of this #itness #ould furnish conclusive evidence in support of the alle"ations of the contestants that the alle"ed #ill #as not e0ecuted at the ti)e and place or in the )anner and for) alle"ed b! the subscribin" #itnesses. Ae do not thin& that the testi)on! of this #itness nor an! of the other #itnesses for the contestants is sufficient to raise even a doubt as to the truth of the testi)on! of the subscribin" #itnesses as to the fact of the e0ecution of the #ill, or as to the )anner and fro) in #hich it #as e0ecuted.In the course of the proceedin"s, an ad)ittedl! "enuine si"nature of the deceased #as introduced in evidence, and upon a co)parison of this si"nature #ith the si"nature attached to the instru)ent in ?uestion, #e are #holl! of the opinion of the trial >ud"e, #ho held in this connection as follo#s@No e0pert evidence has been adduced #ith re"ard to these t#o si"natures, and the presidin" >ud"e of this court does not clai) to possess an! special e0pert &no#led"e in the )atter of si"naturesD nevertheless, the court has co)pared these t#o si"natures, and does not find that an! )aterial differences e0ists bet#een the sa)e. It is true that the si"nature #hich appears in the docu)ent offered for authentication discloses that at the ti)e of #ritin" the subscriber #as )ore deliberate in his )ove)ents, but t#o facts )ust be ac&no#led"e@ .irst, that the testator #asseriousl! ill, and the other fact, that for so)e reason #hich is not stated the testator #as unable tosee, and #as a person #ho #as not in the habit of si"nin" his na)e ever! da!.hese facts should sufficientl! e0plain #hatever difference )a! e0ist bet#een the t#o si"natures,but the court finds that the principal stro&es in the t#o si"natures are identical.hat the testator #as )entall! capable of )a&in" the #ill is in our opinion full! established b! the testi)on! of the subscribin" #itnesses #ho s#ore positivel! that, at the ti)e of its e0ecution, he #as of sound )ind and )e)or!. It is true that their testi)on! discloses the fact that he #as at that ti)e e0tre)el! ill, in an advanced sta"e of tuberculosis co)plicated #ith severe inter)ittent attac&s of asth)aDthat he #as too sic& to rise unaided fro) his bedD that he needed assistance even to rise hi)self to a sittin" positionD and that durin" the paro0!s)s of asth)a to #hich he #as sub>ect he could not spea&D but all this evidence of ph!sical #ea&ness in no #ise establishes his )ental incapacit! or a lac& of testa)entar! capacit!, and indeed the evidence of the subscribin" #itnesses as to the aid furnished the) b! the testator in preparin" the #ill, and his clear recollection of the boundaries and ph!sical description of the various parcels of land set out therein, ta&en to"ether #ith the fact that he #as able to "ive to the person #ho #rote the #ill clear and e0plicit instructions as to his desires touchin" the disposition of his propert!, is stron" evidence of his testa)entar! capacit!.Counsel for appellant su""ests that the fact that the alle"ed #ill leaves all the propert! of the testator to his #ido#, and #holl! fails to )a&e an! provision for his brothers or sisters, indicates a lac& of testa)entar! capacit! and undue influenceD and because of the inherent i)probabilit! that a )an #ould )a&e so unnatural and unreasonable a #ill, the! contend that this fact indirectl! corroborates their contention that the deceased never did in fact e0ecute the #ill. =ut #hen it is considered that the deceased at the ti)e of his death had no heirs in the ascendin" or descendin" lineD that a bitter fa)il! ?uarrel had lon" separated hi) fro) his brothers and sisters, #ho declined to have an! relations #ith the testator because he and his #ife #ere adherents of the ("lipa!ano ChurchD and that this ?uarrel #as so bitter that none of his brothers or sisters, althou"h so)e of the) lived in the vicinit!, #ere present at the ti)e of his death or attended his funeralD #e thin& the fact that the deceased desired to leave and did leave all of his propert! to his #ido# and )ade no provision for his brothers and sisters, #ho the)selves #ere "ro#n )en and #o)en, b! no )eans tends to disclose either an unsound )ind or the presence of undue influence on the part of his #ife, or in an! #ise corroborates contestants1 alle"ation that the #ill never #as e0ecuted.It has been said that ection to the attestation of E0hibit ( is "roundless if the ter)s thereof are considered, #hich, translated fro) the Visa!an dialect, in #hich the #ill #as #ritten, into En"lish, sa!s@Ae, #itnesses, do hereb! state that the docu)ent #ritten on each side of the three sheets of paper #as e0ecuted, ac&no#led"ed, si"ned, and published b! the testator abovena)ed, Marcelo 5ocson, #ho declared that it #as his last #ill and testa)ent in our presence and, at his re?uest and all of us bein" present, #e si"ned our na)ed on the three sheets of paper as #itnesses to this #ill in the presence of each other. 2ranslation of E0hibit (, pa"e *-, docu)entar! evidence.3he >ud")ent appealed fro) is affir)ed #ith the costs a"ainst the appellants. So ordered.