Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No.
1439 March 19, 1904ANTONIO CASTAEDA,plaintiff-appellee,vs.JOSE E.
ALEMANY,defendant-appellant.Ledesma, Sumulong and Quintos for
appellant.The court erred in holding that all legal formalities had
been complied with in the execution of the will of Doa Juana
Moreno, as the proof shows that the said will was not written in
the presence of under the express direction of the testratrix as
required by section 618 of the Code of Civil Procedure.Antonio V.
Herrero for appellee.The grounds upon which a will may be
disallowed are limited to those mentioned in section 634 of the
Code of Civil Procedure.WILLARD,J.:(1) The evidence in this case
shows to our satisfaction that the will of Doa Juana Moreno was
duly signed by herself in the presence of three witnesses, who
signed it as witnesses in the presence of the testratrix and of
each other. It was therefore executed in conformity with law.There
is nothing in the language of section 618 of the Code of Civil
Procedure which supports the claim of the appellants that the will
must be written by the testator himself or by someone else in his
presence and under his express direction. That section requires (1)
that the will be in writing and (2) either that the testator sign
it himself or, if he does sign it, that it be signed by some one in
his presence and by his express direction. Who does the mechanical
work of writing the will is a matter of indifference. The fact,
therefore, that in this case the will was typewritten in the office
of the lawyer for the testratrix is of no consequence. The English
text of section 618 is very plain. The mistakes in translation
found in the first Spanish edition of the code have been corrected
in the second.(2) To establish conclusively as against everyone,
and once for all, the facts that a will was executed with the
formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the proceedings
under the new code for the probate of a will. (Sec. 625.) The
judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of
any provisions made in the will. It can not decide, for example,
that a certain legacy is void and another one valid. It could not
in this case make any decision upon the question whether the
testratrix had the power to appoint by will a guardian for the
property of her children by her first husband, or whether the
person so appointed was or was not a suitable person to discharge
such trust.All such questions must be decided in some other
proceeding. The grounds on which a will may be disallowed are
stated the section 634. Unless one of those grounds appears the
will must be allowed. They all have to do with the personal
condition of the testator at the time of its execution and the
formalities connected therewith. It follows that neither this court
nor the court below has any jurisdiction in his proceedings to pass
upon the questions raised by the appellants by the assignment of
error relating to the appointment of a guardian for the children of
the deceased.It is claimed by the appellants that there was no
testimony in the court below to show that the will executed by the
deceased was the same will presented to the court and concerning
which this hearing was had. It is true that the evidence does not
show that the document in court was presented to the witnesses and
identified by them, as should have been done. But we think that we
are justified in saying that it was assumed by all the parties
during the trial in the court below that the will about which the
witnesses were testifying was the document then in court. No
suggestion of any kind was then made by the counsel for the
appellants that it was not the same instrument. In the last
question put to the witness Gonzales the phrase "this will" is used
by the counsel for the appellants. In their argument in that court,
found on page 15 of the record, they treat the testimony of the
witnesses as referring to the will probate they were then
opposing.The judgment of the court below is affirmed, eliminating
therefrom, however, the clause "el cual debera ejecutarse fiel y
exactamente en todas sus partes." The costs of this instance will
be charged against the appellants.Arellano, C. J., Torres, Cooper,
Mapa, McDonough and Johnson, JJ.,concur.The Lawphil Project -
Arellano Law Foundation
Republic of the PhilippinesSUPREME COURTManilaEN BANCJanuary 19,
1906G.R. No. 1641GERMAN JABONETA,plaintiff-appellant,vs.RICARDO
GUSTILO, ET AL.,defendants-appellees.Ledesma, Sumulong and Quintos
for appellant.Del-Pan, Ortigas and Fisher for appellees.
CARSON,J.:In these proceedings probate was denied the last will
and testament of Macario Jaboneta, deceased, because the lower
court was of the opinion from the evidence adduced at the hearing
that Julio Javellana, one of the witnesses, did not attach his
signature thereto in the presence of Isabelo Jena, another of the
witnesses, as required by the provisions of section 618 of theCode
of Civil Procedure.The following is a copy of the evidence which
appears of record on this particular point, being a part of the
testimony of the said Isabeo Jena:Q. 1641 Who first signed the
will?A. 1641 I signed it first, and afterwards Aniceto and the
others.Q. 1641 Who were those others to whom you have just
referred?A. 1641 After the witness Aniceto signed the will I left
the house, because I was in a hurry, and at the moment when I was
leaving I saw Julio Javellana with the pen in his hand in position
ready to sign (en actitud de firmar). I believe he signed, because
he was at the table. . . .Q. 1641 State positively whether Julio
Javellana did or did not sign as a witness to the will.A. 1641 I
can't say certainly, because as I was leaving the house I saw Julio
Javellana with the pen in his hand, in position ready to sign. I
believe he signed.Q. 1641 Why do you believe Julio Javellana
signed?A. 1641 Because he had the pen in his hand, which was
resting on the paper, though I did not actually see him sign.Q.
1641 Explain this contradictory statement.A. 1641 After I signed I
asked permission to leave, because I was in a hurry, and while I
was leaving Julio had already taken the pen in his hand, as it
appeared, for the purpose of signing, and when I was near the door
I happened to turn my face and I saw that he had his hand with the
pen resting on the will, moving it as if for the purpose of
signing.Q. 1641 State positively whether Julio moved his hand with
the pen as if for the purpose of signing, or whether he was
signingA. I believe he was signing.The truth and accuracy of the
testimony of this witness does not seem to have been questioned by
any of the parties to the proceedings, but the court, nevertheless,
found the following facts:On the 26th day of December, 1901,
Macario Jaboneta executed under the following circumstances the
document in question, which has been presented for probate as his
will:Being in the house of Arcadio Jarandilla, in Jaro, in this
province, he ordered that the document in question be written, and
calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as
witnesses, executed the said document as his will. They were all
together, and were in the room where Jaboneta was, and were present
when he signed the document, Isabelo Jena signing afterwards as a
witness, at his request, and in his presence and in the presence of
the other two witnesses. Aniceto Jalbuena then signed as a witness
in the presence of the testator, and in the presence of the other
two persons who signed as witnesses. At that moment Isabelo Jena,
being in a hurry to leave, took his hat and left the room. As he
was leaving the house Julio Javellana took the pen in his hand and
put himself in position to sign the will as a witness, but did not
sign in the presence of Isabelo Jena; but nevertheless, after Jena
had left the room the said Julio Javellana signed as a witness in
the presence of the testator and of the witness Aniceto Jalbuena.We
can not agree with so much of the above finding of facts as holds
that the signature of Javellana was not signed in the presence of
Jena, in compliance with the provisions of section 618 of theCode
of Civil Procedure. The fact that Jena was still in the room when
he saw Javellana moving his hand and pen in the act of affixing his
signature to the will, taken together with the testimony of the
remaining witnesses which shows that Javellana did in fact there
and then sign his name to the will, convinces us that the signature
was affixed in the presence of Jena. The fact that he was in the
act of leaving, and that his back was turned while a portion of the
name of the witness was being written, is of no importance. He,
with the other witnesses and the testator, had assembled for the
purpose of executing the testament, and were together in the same
room for that purpose, and at the moment when the witness Javellana
signed the document he was actually and physically present and in
such position with relation to Javellana that he could see
everything which took place by merely casting his eyes in the
proper direction, and without any physical obstruction to prevent
his doing so, therefore we are of opinion that the document was in
fact signed before he finally left the room.The purpose of a
statutory requirement that the witness sign in the presence of the
testator is said to be that the testator may have ocular evidence
of the identity of the instrument subscribed by the witness and
himself, and the generally accepted tests of presence are vision
and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30,
p. 599, and cases there cited.)In the matter of Bedell (2 Connoly
(N.Y.), 328) it was held that it is sufficient if the witnesses are
together for the purpose of witnessing the execution of the will,
and in a position to actually see the testator write, if they
choose to do so; and there are many cases which lay down the rule
that the true test of vision is not whether the testator actually
saw the witness sign, but whether he might have seen him sign,
considering his mental and physical condition and position at the
time of the subscription. (Spoonemorevs. Cables, 66 Mo., 579.)The
principles on which these cases rest and the tests of presence as
between the testator and the witnesses are equally applicable in
determining whether the witnesses signed the instrument in the
presence of each other, as required by the statute, and applying
them to the facts proven in these proceedings we are of opinion
that the statutory requisites as to the execution of the instrument
were complied with, and that the lower court erred in denying
probate to the will on the ground stated in the ruling appealed
from.We are of opinion from the evidence of record that the
instrument propounded in these proceedings was satisfactorily
proven to be the last will and testament of Macario Jaboneta,
deceased, and that it should therefore be admitted to probate.The
judgment of the trial court is reversed, without especial
condemnation of costs, and after twenty days the record will be
returned to the court form whence it came, where the proper orders
will be entered in conformance herewith. So ordered.Arellano, C.J.,
Torres, Mapa, and Johnson, JJ., concur.
Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No.
L-5971 February 27, 1911BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.NARCISA RIMANDO, defendant-appellant.Valerio Fontanilla and
Andres Asprer for appellant.Anacleto Diaz for appellees.CARSON,
J.:The only question raised by the evidence in this case as to the
due execution of the instrument propounded as a will in the court
below, is whether one of the subscribing witnesses was present in
the small room where it was executed at the time when the testator
and the other subscribing witnesses attached their signatures; or
whether at that time he was outside, some eight or ten feet away,
in a large room connecting with the smaller room by a doorway,
across which was hung a curtain which made it impossible for one in
the outside room to see the testator and the other subscribing
witnesses in the act of attaching their signatures to the
instrument.A majority of the members of the court is of opinion
that this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of
course, disposes of the appeal and necessitates the affirmance of
the decree admitting the document to probate as the last will and
testament of the deceased.The trial judge does not appear to have
considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion
that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the testator and
the other describing witnesses signed the instrument in the inner
room, had it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been
in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument
in the inner room, it would have been invalid as a will, the
attaching of those signatures under circumstances not being done
"in the presence" of the witness in the outer room. This because
the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the
curtain separating the inner from the outer one "at the moment of
inscription of each signature."In the case just cited, on which the
trial court relied, we held that:The true test of presence of the
testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might
have been seen each other sign, had they chosen to do so,
considering their mental and physical condition and position with
relation to each other at the moment of inscription of each
signature.But it is especially to be noted that the position of the
parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each
other sign if they choose to do so. This, of course, does not mean
that the testator and the subscribing witnesses may be held to have
executed the instrument in the presence of each other if it appears
that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing
conditions. The evidence in the case relied upon by the trial judge
discloses that "at the moment when the witness Javellana signed the
document he was actually and physically present and in such
position with relation to Jaboneta that he could see everything
that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so." And
the decision merely laid down the doctrine that the question
whether the testator and the subscribing witnesses to an alleged
will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast
upon the paper at the moment of its subscription by each of them,
but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in
the proper direction they could have seen each other sign. To
extend the doctrine further would open the door to the possibility
of all manner of fraud, substitution, and the like, and would
defeat the purpose for which this particular condition is
prescribed in the code as one of the requisites in the execution of
a will.The decree entered by the court below admitting the
instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.Arellano, C. J., Mapa, Moreland
and Trent, JJ., concur.G.R. No. L-38338 January 28, 1985IN THE
MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
ROXAS DE JESUS,SIMEON R. ROXAS & PEDRO ROXAS DE JESUS,
petitioners,vs.ANDRES R. DE JESUS, JR., respondent.
Facts: After the death of spouses Andres G. de Jesus and Bibiana
Roxas de Jesus, a special proceeding entitled "In the Matter of the
Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus"
was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. He delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas
de Jesus. Petitioner Simeon R. Roxas testified that he found a
notebook of the deceased Bibiana detailing a letter-win addressed
to her children and entirely written and signed in her handwriting.
The will is dated "FEB./61 " and states: "This is my win which I
want to be respected although it is not written by a lawyer.
...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother, Bibiana. Both recognized
the handwriting of their mother and positively identified her
signature. They further testified that their deceased mother
understood English, the language in which the holographic Will is
written, and that the date "FEB./61 " was the date when said Will
was executed by their mother.
On the other hand, respondent Luz R. Henson, another compulsory
heir, filed an "opposition to probate". She submits that the
purported holographic Will is void for non-compliance with Article
810 of the New Civil Code in that the date must contain the year,
month, and day of its execution. The respondent contends that
Article 810 of the Civil Code was patterned after Section 1277 of
the California Code and Section 1588 of the Louisiana Code whose
Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is
wanting, the holographic Will is invalid. The respondent further
contends that the petitioner cannot plead liberal construction of
Article 810 of the Civil Code because statutes prescribing the
formalities to be observed in the execution of holographic Wills
are strictly construed.
The petitioners contend that while Article 685 of the Spanish
Civil Code and Article 688 of the Old Civil Code require the
testator to state in his holographic Win the "year, month, and day
of its execution," the present Civil Code omitted the phrase Ao mes
y dia and simply requires that the holographic Will should be
dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.
Issue: Whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with Article 810 of the Civil Code.
Ruling: Yes. This will not be the first time that this Court
departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not
overlook the liberal trend of the Civil Code in the manner of
execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution. However, if the
testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if
the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the
testator.
In particular, a complete date is required to provide against
such contingencies as that of two competing Wills executed on the
same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have found no evidence of bad faith and fraud in its
execution nor was there any substitution of Wins and Testaments.
There is no question that the holographic Will of the deceased
Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also
no question as to its genuineness and due execution. All the
children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the testamentary
capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the
holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to
be entertained.
Therefore, probate of the holographic Will should be allowed
under the principle of substantial compliance.
ART. 810 of the Civil Code. A person may execute a holographic
will which must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
74 AZAOLA v. SINGSONG.R. No. L-14003 5, 196
FACTS: An appeal from a judgment of the Court of First Instance
of Rizal.
This case involves the determination of the quantity of evidence
required for the probate of a holographic will.
September 9, 1957: Fortunata S. Vda. de Yance died; Francisco
Azaola, petitioner herein for probate, submitted the said
holographic will whereby Maria Alilagros Azaola was made the sole
heir as against the nephew of the deceased Cesario Singson
(respondent).
Francisco Azaola testified that he saw the holographic will a
month, more or less, before the death of the testatrix, as the same
was handed to him and his wife; he also testified that he
recognized all the signatures appearing in the holographic will as
the handwriting of the testatrix. Additional evidence: residence
certificates to show the signatures of the testatrix for comparison
purposes. Azaola testified that the penmanship appearing in the
said documentary evidence is in the handwriting of the testatrix as
well as the signatures appearing therein are the signatures of the
testatrix (as contained in the stenographic notes).
The probate was denied on the ground that under Article 811 of
the Civil Code, the proponent must present three witnesses who
could declare that the will and the signature are in the writing of
the testatrix, the probate being contested. The lone witness
presented by the proponent "did not prove sufficiently that the
body of the will was written in the handwriting of the
testatrix.
ISSUE: WON three witnesses are necessary to establish the
handwriting/ signature contained in a will.
HELD: NO. The decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions
to hold a new trial in conformity with this opinion.
RATIO: Where the will is holographic, no witnesses need to be
present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to
be avoided. The rule of the first paragraph of Article 811 of the
Civil Code is merely directory and is not mandatory.
Art. 811, Civil Code: In the probate of a holographic will, it
shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that
the will and the signature are in the handwriting of the testator.
If the will is contested, at least three of such witnesses shall be
required. In the absence of any competent witness referred to in
the preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
Since the authenticity of the will was not contested, the
proponent was not required to produce more than one witness. Even
if the genuineness of the holographic will were contested, the
Court is of the opinion that Article 811 of our present Civil Code
cannot be interpreted as to require the compulsory presentation of
three witnesses to identify the handwriting of the testator, under
penalty of having the probate denied.
Since no witness may have been present at the execution of a
holographic will (none being required by law) 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 and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the testator"
and who can declare truthfully "that the will and the signature are
in the handwriting of the testator."
Compliance with the rule of paragraph 1 of Article 811 may even
be impossible. This is evidently the reason for the second
paragraph of Art. 811. The law foresees the possibility that no
qualified witness may be found (or may refuse to testify), and
provides for resort to expert evidence to supply the
deficiency.
The requirement can be considered mandatory only in the case of
ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law
essential to their validity.
The resort to expert evidence is conditioned by the words "if
the Court deem it necessary", which reveal that what the law deems
essential is that the Court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced
and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert
evidence. And because the law leaves it to the trial court to
decide if experts are still needed, no unfavorable inference can be
drawn from a party's failure to offer expert evidence, until and
unless the court expresses dissatisfaction with the testimony of
the lay witnesses.
FIRST DIVISIONG.R. No. L-40207 September 28, 1984ROSA K.
KALAW,petitioner, vs.HON. JUDGE BENJAMIN RELOVA, Presiding Judge of
the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW,respondents. Leandro H. Fernandez for petitioner.Antonio
Quintos and Jose M. Yacat for respondents. MELENCIO-HERRERA, J.: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 Batangas,
Branch VI, Lipa City, for the probate of her holographic Will
executed on December 24, 1968.The holographic Will reads in full as
follows:My Last will and TestamentIn the name of God, Amen.I
Natividad K. Kalaw Filipino 63years of age, single, and a resident
of Lipa City, being of sound and disposing mind and memory, do
hereby declare thus to be my last will and testament.1. It is my
will that I'll be burried in the cemetery of the catholic church of
Lipa City. In accordance 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.xxx xxx xxxThe
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 substance,
that the holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full signature
of the testatrix as required by Article 814 of the Civil Code
reading: 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 part:The document Exhibit "C" was submitted to
the National Bureau of Investigation for examination. The NBI
reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent,
Natividad K. Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the alterations and/or
insertions 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. 814 on the ground that
they themselves agreed thru their counsel to submit the Document to
the NBI FOR EXAMINATIONS. This is untenable. The parties did not
agree, nor was it impliedly understood, that the oppositors would
be in estoppel.The Court finds, therefore, that the provision of
Article 814 of the Civil Code is applicable to Exhibit "C". Finding
the insertions, alterations and/or additions in Exhibit "C" not to
be authenticated by the full signature of the testatrix Natividad
K. Kalaw, the Court will deny the admission to probate of Exhibit
"C".WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.SO
ORDERED.From that Order, GREGORIO moved for reconsideration arguing
that since the alterations and/or insertions were the testatrix,
the denial to probate of her holographic Will would be contrary to
her right of testamentary disposition. Reconsideration was denied
in an Order, dated November 2, 1973, on the ground that "Article
814 of the Civil Code being , clear and explicit, (it) requires no
necessity for interpretation."From that Order, dated September 3,
1973, denying probate, and the Order dated November 2, 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 were voided by the
Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole
heir.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 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
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 given effect because she failed to authenticate it
in the manner required by law by affixing her full signature, The
ruling in Velasco, supra,must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which
affect only the efficacy of the altered words themselves but not
the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with certitude. As
Manresa had stated in his commentary on Article 688 of the Spanish
Civil Code, whence Article 814 of the new Civil Code was
derived:... No infringe lo dispuesto en este articulo del Codigo
(el 688) la sentencia que no declara la nulidad de un testamento
olografo que contenga palabras tachadas, enmendadas o entre
renglones no salvadas por el testador bajo su firnia segun previene
el parrafo tercero del mismo, porque, 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 validez del
testamento olografo, ya porque, de admitir lo contrario, se
Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en
nada afectasen a la parte esencial y respectiva del testamento,
vinieran a anular este, y ya porque el precepto contenido en dicho
parrafo ha de entenderse 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
prevenida, paro no el documento que las contenga, y con mayor
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 escrituraria, sin trascendencia
alguna(l).Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo, es preciso que las tachaduras,
enmiendas o entrerrenglonados sin salvar saan de pala bras que no
afecter4 alteren ni uarien de modo substancial la express voluntad
del testador manifiesta en el documento. 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 del guarismo ultimo del ao en que fue extendido3 (Emphasis
ours). WHEREFORE, this Petition is hereby dismissed and the
Decision of respondent Judge, dated September 3, 1973, is hereby
affirmed in toto. No costs. SO ORDERED.Maloto vs. Court of Appeals,
G.R. No. 76464 February 29, 1988Facts:Adriana Maloto died leaving
as heirs her niece and nephews, the petitioners Aldina
Maloto-Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the deceased did
not leave behind a last will and testament, these four heirs
commenced an intestate proceeding for the settlement of their
aunt's estate. However, while the case was still in progress the
parties - Aldina, Constancio, Panfilo, and Felino - executed an
agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four equal
parts among the parties. The Malotos then presented the
extrajudicial settlement agreement to the trial court for approval
which the court did approved. Three years later Atty. Sulpicio
Palma, a former associate of Adriana's counseldiscovered a document
entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," and purporting
to be the last will and testament of Adriana. Atty. Palma claimed
to have found the testament, the original copy, while he was going
through some materials inside the cabinet drawer formerly used by
Atty. Hervas. Incidentally, while Panfilo and Felino are still
named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of
Adriana than what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The will likewise
gives devises and legacies to other parties.Subsequently, Aldina
and Constancio, joined by the other devisees and legatees named in
the will, fileda motion for reconsideration and annulment of the
proceedings in the intestate proceedings of Adriana and for the
allowance of the will.Trial court denied their motion, The
petitioner came to SC by way of a petition for certiorari and
mandamus assailing the orders of the trial court. SC dismissed that
petition and advised to file a separate proceeding for the probate
of the alleged will. By that petitioner file a separate proceeding
for probate of the will.Significantly, during the investigation the
appellate court found out that the will was allegedly burned by the
househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon
instructions of the testatrix, and found that the will had been
revoked. The CA stated that the presence of animus revocandi in the
destruction of the will had, nevertheless, been sufficiently
proven. Issue:Whether or not the will was revoked by
AdrianaRuling:Art. 830. No will shall be revoked except in the
following cases: Xxx (3) By burning, tearing, cancelling, or
obliterating the will with the intention of revoking it, by the
testator himself, or by some other person in his presence, and by
his express direction. If burned, torn cancelled, or obliterated by
some other person, without the express direction of the testator,
the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or obliteration
are established according to the Rules of Court.It is clear that
the physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless
the destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be
done by the testator himself. It may be performed by another person
but under the express direction and in the presence of the
testator. Of course, it goes without saying that the document
destroyed must be the will itself."Animus revocandi is only one of
the necessary elements for the effective revocation of a last will
and testament. The intention to revoke must be accompanied by the
overt physical act of burning, tearing, obliterating, or cancelling
the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of
evidence to show compliance with these requirements. For one, the
document or papers burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less the will
of Adriana Maloto. For another, the burning was not proven to have
been done under the express direction of Adriana. And then, the
burning was not in her presence. Both witnesses, Guadalupe and
Eladio, were one in stating that they were the only ones present at
the place where the stove (presumably in the kitchen) was located
in which the papers proffered as a will were burned.SC approved the
allowance of Adriana Maloto's last will and testament.EN BANC[G.R.
No. L-12190. August 30, 1958.]TESTATE ESTATE OF FELICIDAD ESGUERRA
ALTO-YAP, deceased. FAUSTO E. GAN, petitioner-appellant, vs.
ILDEFONSO YAP, oppositor-appellee.Benedicto C. Balderrama, Crispn
D. Baizas and Roberto H. Benitez for appellant.Arturo M. Tolentino
for appellee.SYLLABUSHOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND
CONTENTS OF WILL, HOW PROVED. The execution and the contents of a
lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof of
authenticity.D E C I S I O NBENGZON, J p:On November 20, 1951,
Felicidad Esguerra Alto Yap died of heart failure in the University
of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan,
and in the City of Manila.On March 17, 1952, Fausto E. Gan
initiated these proceedings in the Manila court of first instance
with a petition for the probate of a holographic will allegedly
executed by the deceased, substantially in these words:"Nobyembre
5, 1951Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na
pagiisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng
Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang
sumusunod:Vicente Esguerra, Sr.5 BahagiFausto E. Gan2 BahagiRosario
E. Gan2 BahagiFilomena Alto1 BahagiBeatriz Alto1 Bahagi'At ang
aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay
aking ipinamamana sa aking asawang si Ildefonso D. Yap sa
kondisyong siya'y magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng
Pulilan, Bulacan, na nakaukit ang aking pagalang Felicidad
Esguerra-Alto. At kung ito ay may kakulagan man ay bahala na ang
aking asawa ang magpuno upang matupad ang aking kagustuhan.'(Lagda)
Felicidad E. Alto-Yap"Opposing the petition, her surviving husband
Ildefonso Yap asserted that the deceased had not left any will, nor
executed any testament during her lifetime.After hearing the
parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge, 1 refused to probate the alleged will. A seventy-page motion
for reconsideration failed. Hence this appeal.The will itself was
not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra,
Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose
testimonies may be summarized as follows:Sometime in 1950 after her
last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however
that it would be useless if her husband discovered or knew about
it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who
was then preparing for the bar examinations. The latter replied it
could be done without any witness, provided the document was
entirely in her handwriting, signed and dated by her. Vicente
Esguerra lost no time in transmitting the information, and on the
strength of it, in the morning of November 5, 1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote, signed and
dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra
(daughter of Vicente), who was invited to read it. In the afternoon
of that day, Felicidad was visited by a distant relative, Primitivo
Reyes, and she allowed him to read the will in the presence of
Felina Esguerra, who again read it.Nine days later, he had other
visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of
Felina Esguerra, who read it for the third time.When on November
19, 1951, Felicidad was confined at the U.S.T. Hospital for her
last illness, she entrusted the said will, which was contained in a
purse, to Felina Esguerra. But a few hours later, Ildefonso Yap,
her husband, asked Felina for the purse; and being afraid of him by
reason of his well-known violent temper, she- delivered it to him.
Thereafter, in the same day, Ildefonso Yap returned the purse to
Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had
taken the purse to the toilet, opened it and read the will for the
last time. 2 From the oppositor's proof it appears that Felicidad
Esguerra had been suffering from heart disease for several years
before her death; that she had been treated by prominent
physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that
in May 1950 husband and wife journeyed to the United States wherein
for several weeks she was treated for the disease; that thereafter
she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment
recurred, she suffered several attacks, the most serious of which
happened in the early morning of the first Monday of November 1951
(Nov. 5). The whole household was surprised and alarmed, even the
teachers of the Harvardian Colleges occupying the lower floors and
owned by the Yap spouses. Physician's help was hurriedly called,
and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient
hardly breathing, lying in bed, her head held high by her husband.
Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day,
her husband and her personal attendant, Mrs. Bantique, constantly
at her side. These two persons swore that Mrs. Felicidad Esguerra
Yap made no will, and could have made no will on that day.The trial
judge refused to credit the petitioner's evidence for several
reasons, the most important of which were these: (a) if according
to his evidence, the decedent wanted to keep her will a secret, so
that her husband would not know it, it is strange she executed it
in the presence of Felina Esguerra, knowing as she did that
witnesses were unnecessary; (b) in the absence of a showing that
Felina was a confidant of the decedent it is hard to believe that
the latter would have allowed the former to see and read the will
several times; (c) it is improbable that the decedent would have
permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte
to read her will, when she precisely wanted its contents to remain
a secret during her lifetime; (d) it is also improbable that her
purpose being to conceal the will from her husband she would carry
it around, even to the hospital, in her purse which could for one
reason or another be opened by her husband; (e) if it is true that
the husband demanded the purse from Felina in the U.S.T. Hospital
and that the will was there, it is hard to believe that he returned
it without destroying the will, the theory of the petitioner being
precisely that the will was executed behind his back for fear he
will destroy it.In the face of these improbabilities, the trial
judge had to accept the oppositor's evidence that Felicidad did not
and could not have executed such holographic will.In this appeal,
the major portion of appellant's brief discussed the testimony of
the oppositor and of his witnesses in a vigorous effort to
discredit them. It appears that the same arguments, or most of
them, were presented in the motion to reconsider; but they failed
to induce the court a quo to change its mind. The oppositor's
brief, on the other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our opinion the
case should be decided not on the weakness of the opposition but on
the strength of the evidence of the petitioner, who has the burden
of proof.The Spanish Civil Code permited the execution of
holographic wills along with other forms. The Code of Civil
Procedure (Act 190) approved August 7, 1901, adopted only one form,
thereby repealing the other forms, including holographic wills.The
New Civil Code effective in 1950 revived holographic wills in its
arts. 810-814. "A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form and may be made in or out
of the Philippines, and need not be witnessed."This is indeed a
radical departure from the form and solemnities provided for wills
under Act 190, which for fifty years (from 1901 to 1950) required
wills to be subscribed by the testator and three credible witnesses
in each and every page; such witnesses to attest to the number of
sheets used and to the fact that the testator signed in their
presence and that they signed in the presence of the testator and
of each other.The object of such requirements it has been said, is
to close the door against bad faith and fraud, to prevent
substitution of wills, to guarantee their truth and authenticity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid that those who
have no right to succeed the testator would succeed him and be
benefited with the probate of same. (Mendoza vs. Pilapil, 40 off.
Gaz., 1855). However, formal imperfections may be brushed aside
when authenticity of the instrument is duly proved. (Rodriguez vs.
Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.).Authenticity and due
execution is the dominant requirement to be fulfilled when such
will is submitted to the courts for allowance. For that purpose the
testimony of one of the subscribing witnesses would be sufficient,
if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form
its opinion as to the genuineness and authenticity of the
testament, and the circumstances of its due execution.Now, in the
matter of holographic wills, no such guaranties of truth and
veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and
signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material
proof of authenticity, and as its own safeguard, since it could at
any time, be demonstrated to be or not to be in the hands of the
testator himself. "In the probate of a holographic will" says the
New Civil Code, "it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of
the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses,
(familiar with decedent's handwriting) and if the court deem it
necessary, expert testimony may be resorted to."The witnesses so
presented do not need to have seen the execution of the holographic
will. They may be mistaken in their opinion of the handwriting, or
they may deliberately lie in affirming it is in the testator's
hand. However, the oppositor may present other witnesses who also
know the testator's handwriting, or some expert witnesses, who
after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own
visual sense, and decide in the face of the document, whether the
will submitted to it has indeed been written by the
testator.Obviously, when the will itself is not submitted, these
means of opposition, and of assessing the evidence are not
available. And then the only guaranty of authenticity 3 the
testator's handwriting has disappeared.Therefore, the question
presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare
that it was in the handwriting of the testator? How can the
oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way
to compare the alleged testament with other documents admittedly,
or proven to be, in the testator's hand. The oppositor will,
therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether millstone
of his inability to prove its falsity. Again the proponent's
witnesses may be honest and truthful; but they may have been shown
a faked document, and having no interest to check the authenticity
thereof have taken no pains to examine and compare. Or they may be
perjurers boldly testifying, in the knowledge that none could
convict them of perjury, because no one could prove that they have
not "been shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of such
perjured witnesses to testify as to the handwriting could be tested
by exhibiting to them other writings sufficiently similar to those
written by the deceased; but what witness or lawyer would not
foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply
stick to his statement: he has seen and read a document which he
believed was in the deceased's handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or
witnesses) not only as to the execution, but also as to the
contents of the will. Does the law permit such a situation?The
Rules of Court, (Rule 77) approved in 1940, allow proof (and
probate) of a lost or destroyed will by secondary evidence the
testimony of witnesses, in lieu of the original document. Yet such
Rules could not have contemplated holographic wills which could not
then be validly made here. (See also Sec. 46, Rule 123; Art.
830-New Civil Code.).Could Rule 77 be extended, by analogy, to
holographic wills?Spanish commentators agree that one of the
greatest objections to the holographic will is that it may be lost
or stolen 4 an implied admission that such loss or theft renders it
useless.This must be so, because the Civil Code requires it to be
protocoled and presented to the judge, (Art. 689) who shall
subscribe it and require its identity to be established by the
three witnesses who depose that they have no reasonable doubt that
the will was written by the testator (Art. 691). And if the judge
considers that the identity of the will has been proven he shall
order that it be filed (Art. 693). All these, imply presentation of
the will itself. Art. 692 bears the same implication, to a greater
degree. It requires that the surviving spouse and the legitimate
ascendants and descendants be summoned so that they may make "any
statement they may desire to submit with respect to the
authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself
alone, to prevent others from knowing either its execution or its
contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will,
but whether in the face of the document itself they think the
testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.Undoubtedly, the
intention of the law is to give the near relatives the choice of
either complying with the will if they think it authentic, or to
oppose it, if they think it spurious. 5 Such purpose is frustrated
when the document is not presented for their examination. If it be
argued that such choice is not essential, because anyway the
relatives may oppose, the answer is that their opposition will be
at a distinct disadvantage, and they have the right and privilege
to comply with the will, if genuine, a right which they should not
be denied by withholding inspection thereof from them.We find
confirmation of these ideas about exhibition of the document itself
in the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing
testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn
from it. Even in the face of allegations and testimonial evidence
(which was controverted), ascribing the mutilation to the opponents
of the will. The aforesaid tribunal declared that, in accordance
with the provision of the Civil Code (Spanish) the will itself,
whole and unmutilated, must be presented; otherwise, it shall
produce no effect."Considerando que sentado lo anterior, y
estableciendose en el parrafo segundo del articulo 688 del Codigo
civil, que para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del ao, mes
y dia en que se otorque, resulta evidente que para la validez y
eficacia de esos testamentos, no basta la demostracion mas o menos
cumplida de que cuando se otorgaron se llenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y
por el tiempo en que el verbo se emplea, se desprende la necesidad
de que el documento se encuentre en dichas condiciones en el
momento de ser presentado a la Autoridad competente, para su
adveracion y protocolizacion; y como consecuencia ineludible de
ello, forzoso es affirmar que el de autos carece de validez y
aficacia, por no estar firmado por el testador, cualquiera que sea
la causa de la falta de firma, y sin perjuicio de las acciones que
puedan ejercitar los perjudicados, bien para pedir indemnizacion
por el perjuicio a la persona culpable, si la hubiere, o su castigo
en via criminal si procediere, por constituir dicha omision un
defecto insubsanable . . . ."This holding aligns with the ideas on
holographic wills in the Fuero Juzgo, admittedly the basis of the
Spanish Civil Code provisions on the matter. 6 "PRECEDENTES LEGALES
Fuero Juzgo, libro segundo, titulo V, ley 15 E depues que los
herederos e sus fijos ovieren esta manda, fasta . . . annos
muestrenla al obispo de la tierra, o al juez fasta Vl meses y el
obispo o el juez tomen otros tales tres escritos, que fuesen fechos
por su mano daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E depues que
todo esto fuere conocido, el obispo o el juez, o otras testimonios
confirmen el escripto de la manda otra vez, y en esta manera vala
la manda." (Art. 689, Scaevola - Codigo Civil.)(According to the
Fuero above, the will itself must be compared with specimens of the
testators handwriting.)All of which can only mean: the courts will
not distribute the property of the deceased in accordance with his
holographic will, unless they are shown his handwriting and
signature. 7 Parenthetically, it may be added that even the French
Civil Law considers the loss of the holographic will to be fatal.
(Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).Taking all the above circumstances
together, we reach the conclusion that the execution and the
contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such
will. 8 Under the provisions of Art. 838 of the New Civil Code, we
are empowered to adopt this opinion as a Rule of Court for the
allowance of such holographic wills. We hesitate, however, to make
this Rule decisive of this controversy, simultaneously with its
promulgation. Anyway, decision of the appeal may rest on the
sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.At this point, before proceeding further,
it might be convenient to explain why, unlike holographic wills,
ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the
first, the only guarantee of authenticity is the handwriting
itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if
the ordinary will is lost, the subscribing witnesses are available
to authenticate.In the case of ordinary wills, it is quite hard to
convince three witnesses (four with the notary) deliberately to
lie. And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that
they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the
testator they are not likely to lend themselves to any fraudulent
scheme to distort his wishes. Last but not least, they can not
receive anything on account of the will.Whereas in the case of
holographic wills, if oral testimony were admissible 9 only one man
could engineer the whole fraud this way: after making a clever or
passable imitation of the handwriting and signature of the
deceased, he may contrive to let three honest and credible
witnesses see and read the forgery; and the latter, having no
interest, could easily fall for it, and in court they would in all
good faith affirm its genuineness and authenticity. The will having
been lost the forger may have purposely destroyed it in an
"accident" the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And considering
that the holographic will may consist of two or three pages, and
only one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go undetected.If
testimonial evidence of holographic wills be permitted, one more
objectionable feature feasibility of forgery would be added to the
several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law. 10 One more fundamental difference: in the
case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator
of subscribing the will; whereas in the case of a lost holographic
will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be
tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand.Turning now to the
evidence presented by the petitioner, we find ourselves sharing the
trial judge's disbelief. In addition to the dubious circumstances
described in the appealed decision, we find it hard to believe that
the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These
could pester her into amending her will to give them a share, or
threaten to reveal its execution to her husband Ildefonso Yap. And
this leads to another point: if she wanted so much to conceal the
will from her husband, why did she not entrust it to her
beneficiaries? Opportunity to do so was not lacking: for instance,
her husband's trip to Davao, a few days after the alleged execution
of the will.In fine, even if oral testimony were admissible to
establish and probate a lost holographic will, we think the
evidence submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure up to
that "clear and distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be
sustained.Judgment affirmed, with costs against petitioner.Paras,
C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J.B.L., Endencia and Felix, JJ., concur.Rodelas vs.
AranzaG.R. No. L-58509Justice Relova
DOCTRINE
Art. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to.
SPECIFIC ISSUE
Whether or not a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy (Xerox
copy)?
HOW DID THE SC DECIDE ON THE ISSUE BASED ON THE DOCTRINE
Yes, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard
writings of the testator and using the provision of Art. 881, if
uncontested, at least one Identifying witness is required and, if
no witness is available, experts may be resorted to. If contested,
at least three Identifying witnesses are required. As indicated in
the Footnote 8 in the case of Gam vs. Yap, 104 PHIL, it says that
"Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, if
any, whereby the authenticity of the handwriting of the deceased
may be exhibited and tested before the probate court," Evidently,
the photostatic or xerox copy of the lost or destroyed holographic
will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate
court.
Gago v. MamuyacJohnson, J. (1927)Nature: action to probate the
last will and testament of Miguel MamuyacFacts:1. 07/27/1918:
Miguel Mamuyac executed a last will and testament 1. 01/1922:
Mamuyac died. Francisco Gago petitioned for the probation of
Mamuyacs will opposed by Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon and Catalina Mamuyac1. CFI denied the petition for
probation on the ground that the deceased executed a new will and
testament on April 19191. 02/1925: action to secure the probation
of the April 1919 will Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon and Catalina Mamuyac opposed:3. Said will is a
copy of the 2nd will and testament executed by Miguel Mamuyac3.
cancelled and revoked during the lifetime of Miguel3. not the last
will and testament of Miguel 1. CFI denied the probation on the
ground that it had been cancelled and revoked in 19204. Witnessed
by Fenoy who typed the will and Bejar who saw it actually cancelled
by Miguel (because Miguel sold to Bejar a house and the land where
the house was built, he had to cancel the 1919 will)Issue: WON the
will in question had been cancelled in 1920? Ruling: Yes1. Lower
court accepted positive proof of the cancellation that was not
denied.1. The law does not require any evidence of the revocation
or cancellation of a will to be preserved. It therefore becomes
difficult to prove the revocation.1. Cancellation or revocation
must either remain unproved or be inferred from evidence showing
that after due search, the original will cannot be found1. Where a
will which cannot be found is shown to have been in the possession
of the testator, when last seen, the presumption is, in the absence
of other competent evidence, that the same was cancelled or
destroyed1. Same presumption where it is shown that the testator
had ready access to the will and it cannot be found after his
death. 1. It will not be presumed that such will has been destroyed
by any other person without the knowledge or authority of the
testator1. The presumption of cancellation is never conclusive but
may be overcome by proof that the will was not destroyed by the
testator with intent to revoke it.1. Since the original will of
1919 could not be found after the death of the testator and in view
of the positive proof that it had been cancelled, the conclusion is
that it had been cancelled and revoked1. In a proceeding to probate
a will, the burden of proof is upon the proponent to establish its
execution and existence.1. In a great majority of instances in
which wills are destroyed for the purpose of revoking them there is
no witness to the act of cancellation or destruction and all
evidence of its cancellation perishes with the testator. 1. Copies
of wills should be admitted by the courts with great caution. When
it is proven, however, by proper testimony that a will was executed
in duplicate with all the formalities and requirements of the law,
then the duplicate may be admitted in evidence when it is made to
appear that the original has been lost and was not cancelled or
destroyed by the testator.