CIVIL LAW REVIEW (ATTY. RUBEN BALANE)
ARTICLES 774/776
Union Bank v. Santibanez
452 SCRA 228 | Abu
FACTS:On May 31, 1980, the First Countryside Credit Corporation
(FCCC) and Efraim Santibaez entered into a loan agreement in the
amount of P128,000.00. The amount was intended for the payment of
one (1) unit Ford 6600 Agricultural Tractor. In view thereof,
Efraim and his son, Edmund, executed a promissory note in favor of
the FCCC, the principal sum payable in five equal annual
amortizations. On Dec. 1980, FCCC and Efraim entered into another
loan agreement for the payment of another unit of Ford 6600 and one
unit of a Rotamotor. Again, Efraim and Edmund executed a promissory
note and a Continuing Guaranty Agreement for the later loan. In
1981, Efraim died, leaving a holographic will. Testate proceedings
commenced before the RTC of Iloilo City. Edmund was appointed as
the special administrator of the estate. During the pendency of the
testate proceedings, the surviving heirs, Edmund and his sister
Florence, executed a Joint Agreement, wherein they agreed to divide
between themselves and take possession of the three (3) tractors:
(2) tractors for Edmund and (1) for Florence. Each of them was to
assume the indebtedness of their late father to FCCC, corresponding
to the tractor respectively taken by them. In the meantime, a Deed
of Assignment with Assumption of Liabilities was executed by and
between FCCC and Union Bank, wherein the FCCC assigned all its
assets and liabilities to Union Bank.
Demand letters were sent by Union Bank to Edmund, but the latter
refused to pay. Thus, on February 5, 1988, Union Bank filed a
Complaint for sum of money against the heirs of Efraim Santibaez,
Edmund and Florence, before the RTC of Makati City. Summonses were
issued against both, but the one intended for Edmund was not served
since he was in the United States and there was no information on
his address or the date of his return to the Philippines. Florence
filed her Answer and alleged that the loan documents did not bind
her since she was not a party thereto. Considering that the joint
agreement signed by her and her brother Edmund was not approved by
the probate court, it was null and void; hence, she was not liable
to Union Bank under the joint agreement.
Union Bank asserts that the obligation of the deceased had
passed to his legitimate heirs (Edmund and Florence) as provided in
Article 774 of the Civil Code; and that the unconditional signing
of the joint agreement estopped Florence, and that she cannot deny
her liability under the said document.
In her comment to the petition, Florence maintains that Union
Bank is trying to recover a sum of money from the deceased Efraim
Santibaez; thus the claim should have been filed with the probate
court. She points out that at the time of the execution of the
joint agreement there was already an existing probate proceedings.
She asserts that even if the agreement was voluntarily executed by
her and her brother Edmund, it should still have been subjected to
the approval of the court as it may prejudice the estate, the heirs
or third parties.
ISSUE:
W/N the claim of Union Bank should have been filed with the
probate court before which the testate estate of the late Efraim
Santibaez was pending. W/N the agreement between Edmund and
Florence (which was in effect, a partition of hte estate) was void
considering that it had not been approved by the probate court. W/N
there can be a valid partition among the heirs before the will is
probated.
HELD:
Well-settled is the rule that a probate court has the
jurisdiction to determine all the properties of the deceased, to
determine whether they should or should not be included in the
inventory or list of properties to be administered. The said court
is primarily concerned with the administration, liquidation and
distribution of the estate.
In our jurisdiction, the rule is that there can be no valid
partition among the heirs until after the will has been probated.
In the present case, Efraim left a holographic will which contained
the provision which reads as follows:
(e) All other properties, real or personal, which I own and may
be discovered later after my demise, shall be distributed in the
proportion indicated in the immediately preceding paragraph in
favor of Edmund and Florence, my children.
The above-quoted is an all-encompassing provision embracing all
the properties left by the decedent which might have escaped his
mind at that time he was making his will, and other properties he
may acquire thereafter. Included therein are the three (3) subject
tractors. This being so, any partition involving the said tractors
among the heirs is not valid. The joint agreement executed by
Edmund and Florence, partitioning the tractors among themselves, is
invalid, specially so since at the time of its execution, there was
already a pending proceeding for the probate of their late fathers
holographic will covering the said tractors.
The Court notes that the loan was contracted by the decedent.
The bank, purportedly a creditor of the late Efraim Santibaez,
should have thus filed its money claim with the probate court in
accordance with Section 5, Rule 86 of the Revised Rules of
Court.
The filing of a money claim against the decedents estate in the
probate court is mandatory. This requirement is for the purpose of
protecting the estate of the deceased by informing the executor or
administrator of the claims against it, thus enabling him to
examine each claim and to determine whether it is a proper one
which should be allowed. The plain and obvious design of the rule
is the speedy settlement of the affairs of the deceased and the
early delivery of the property to the distributees, legatees, or
heirs.
Perusing the records of the case, nothing therein could hold
Florence accountable for any liability incurred by her late father.
The documentary evidence presented, particularly the promissory
notes and the continuing guaranty agreement, were executed and
signed only by the late Efraim Santibaez and his son Edmund. As the
petitioner failed to file its money claim with the probate court,
at most, it may only go after Edmund as co-maker of the decedent
under the said promissory notes and continuing guaranty.
ARTICLE 77
Uson v. Del Rosario
92:530| Andres
FACTS:
This is an action for recovery of the ownership and possession
of five (5) parcels of land in Pangasinan, filed by Maria Uson
against Maria del Rosario and her four illegit children. Maria Uson
was the lawful wife of Faustino Nebreda who upon his death in 1945
left the lands involved in this litigation. Faustino Nebreda left
no other heir except his widow Maria Uson. However, plaintiff
claims that when Faustino Nebreda died in 1945, his common-law wife
Maria del Rosario took possession illegally of said lands thus
depriving her of their possession and enjoyment. Defendants in
their answer set up as special defense that Uson and her husband,
executed a public document whereby they agreed to separate as
husband and wife and, in consideration of which Uson was given a
parcel of land and in return she renounced her right to inherit any
other property that may be left by her husband upon his death. CFI
found for Uson. Defendants appealed.
ISSUE:
1. W/N Uson has a right over the lands from the moment of death
of her husband.
2. W/N the illegit children of deceased and his common-law wife
have successional rights.
HELD:
1. Yes. There is no dispute that Maria Uson, is the lawful wife
of Faustino Nebreda, former owner of the five parcels of lands
litigated in the present case. There is likewise no dispute that
Maria del Rosario, was merely a common-law wife with whom she had
four illegitimate children with the deceased. It likewise appears
that Faustino Nebreda died in 1945 much prior to the effectivity of
the new Civil Code. With this background, it is evident that when
Faustino Nebreda died in 1945 the five parcels of land he was
seized of at the time passed from the moment of his death to his
only heir, his widow Maria Uson (Art 777 NCC).As this Court aptly
said, "The property belongs to the heirs at the moment of the death
of the ancestor as completely as if the ancestor had executed and
delivered to them a deed for the same before his death". From that
moment, therefore, the rights of inheritance of Maria Uson over the
lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her
right over the lands in question because she expressly renounced to
inherit any future property that her husband may acquire and leave
upon his death in the deed of separation, cannot be entertained for
the simple reason that future inheritance cannot be the subject of
a contract nor can it be renounced.2. No. The provisions of the NCC
shall be given retroactive effect even though the event which gave
rise to them may have occurred under the prior legislation only if
no vested rights are impaired. Hence, since the right of ownership
of Maria Uson over the lands in question became vested in 1945 upon
the death of her late husband, the new right recognized by the new
Civil Code in favor of the illegitimate children of the deceased
cannot, therefore, be asserted to the impairment of the vested
right of Maria Uson over the lands in dispute.
Borja v. Borja
46 SCRA 577 | Ang
FACTS: Francisco de Borja filed a petition for probate of the
will of his wife who died, Josefa Tangco, with the CFI of Rizal. He
was appointed executor and administrator, until he died; his son
Jose became the sole administrator. Francisco had taken a 2nd wife
Tasiana before he died; she instituted testate proceedings with the
CFI of Nueva Ecija upon his death and was appointed special
administatrix. Jose and Tasiana entered upon a compromise
agreement, but Tasiana opposed the approval of the compromise
agreement. She argues that it was no valid, because the heirs
cannot enter into such kind of agreement without first probating
the will of Francisco, and at the time the agreement was made, the
will was still being probated with the CFI of Nueva Ecija.
ISSUE: W/N the compromise agreement is valid, even if the will
of Francisco has not yet been probated.
HELD: YES, the compromise agreement is valid.
The agreement stipulated that Tasiana will receive P800,000 as
full payment for her hereditary share in the estate of Francisco
and Josefa.
There was here no attempt to settle or distribute the estate of
Francisco deBorjaamong the heirs thereto before the probate of his
will. The clear object of the contract was merely the conveyance by
Tasiana Ongsingco of any and all her individual share and interest,
actual or eventual, in the estate of Francisco deBorjaand Josefa
Tangco. There is no stipulation as to any other claimant, creditor
or legatee.And as a hereditary share in a decedent's estate is
transmitted or vested immediately from the moment of the death of
suchcausanteor predecessor in interest (Civil Code of the
Philippines, Art. 777)there is no legal bar to a successor (with
requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation of
the estate.
Bonilla v. Barcena
71 SCRA 491 | Angliongto
FACTS:
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio
Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla,
instituted a civil action in the CFI of Abra, to quiet title over
certain parcels of land located in Abra. The defendants filed a
motion to dismiss the complaint on the ground that Fortunata
Barcena is dead and, therefore, has no legal capacity to sue. In
the hearing for the motion to dismiss, counsel for the plaintiff
confirmed the death of Fortunata Barcena, and asked for
substitution by her minor children and her husband; but the court
after the hearing immediately dismissed the case on the ground that
a dead person cannot be a real party in interest and has no legal
personality to sue.
ISSUE:
W/N the CFI erred in dismissing the complaint.
HELD:
While it is true that a person who is dead cannot sue in court,
yet he can be substituted by his heirs in pursuing the case up to
its completion. The records of this case show that the death of
Fortunata Barcena took place on July 9, 1975 while the complaint
was filed on March 31, 1975. This means that when the complaint was
filed on March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person.
Under Section 16, Rule 3 of the Rules of Court "whenever a party to
a pending case dies ... it shall be the duty of his attorney to
inform the court promptly of such death ... and to give the name
and residence of his executor, administrator, guardian or other
legal representatives." This duty was complied with by the counsel
for the deceased plaintiff when he manifested before the respondent
Court that Fortunata Barcena died on July 9, 1975 and asked for the
proper substitution of parties in the case. The respondent Court,
however, instead of allowing the substitution, dismissed the
complaint on the ground that a dead person has no legal personality
to sue. This is a grave error. Article 777 of the Civil Code
provides "that the rights to the succession are transmitted from
the moment of the death of the decedent." From the moment of the
death of the decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the decedent,
and they cannot be deprived of their rights thereto except by the
methods provided for by law. The moment of death is the determining
factor when the heirs acquire a definite right to the inheritance
whether such right be pure or contingent. The right of the heirs to
the property of the deceased vests in them even before judicial
declaration of their being heirs in the testate or intestate
proceedings. When Fortunata Barcena, therefore, died, her claim or
right to the parcels of land in litigation in Civil Case No. 856,
was not extinguished by her death but was transmitted to her heirs
upon her death. Her heirs have thus acquired interest in the
properties in litigation and became parties in interest in the
case. There is, therefore, no reason for the respondent Court not
to allow their substitution as parties in interest for the deceased
plaintiff.
The claim of the deceased plaintiff which is an action to quiet
title over the parcels of land in litigation affects primarily and
principally property and property rights and therefore is one that
survives even after her death. It is, therefore, the duty of the
respondent Court to order the legal representative of the deceased
plaintiff to appear and to be substituted for her. But what the
respondent Court did, upon being informed by the counsel for the
deceased plaintiff that the latter was dead, was to dismiss the
complaint. This should not have been done for under Section 17,
Rule 3 of the Rules of Court, it is even the duty of the court, if
the legal representative fails to appear, to order the opposing
party to procure the appointment of a legal representative of the
deceased. Unquestionably, the respondent Court has gravely abused
its discretion in not complying with the clear provision of the
Rules of Court in dismissing the complaint of the plaintiff in
Civil Case No. 856 and refusing the substitution of parties in the
case.
ARTICLE 783
Vitug v. CA
183 SCRA 755 | JEN SUCCESSION REVIEWERFACTS:Romarico Vitug and
Nenita Alonte were co-administrators of Dolores Vitugs (deceased)
estate. Rowena Corona was the executrix. Romarico, the deceaseds
husband, filed a motion with the probate court asking for authority
to sell certain shares of stock and real properties belonging to
the estate to cover alleged advances to the estate, which he
claimed as personal funds. The advances were used to pay estate
taxes.
Corona opposed the motion on ground that the advances came from
a savings account which formed part of the conjugal partnership
properties and is part of the estate. Thus, there was no ground for
reimbursement. Romarico claims that the funds are his exclusive
property, having been acquired through a survivorship agreement
executed with his late wife and the bank.
The agreement stated that after the death of either one of the
spouses, the savings account shall belong to and be the sole
property of the survivor, and shall be payable to and collectible
or withdrawable by such survivor.
The lower court upheld the validity of the agreement and granted
the motion to sell. CA reversed stating that the survivorship
agreement constitutes a conveyance mortis causa which did not
comply with the formalities of a valid will. Assuming that it was a
donation inter vivos, it is a prohibited donation (donation between
spouses).ISSUE:W/N the survivorship agreement was valid.HELD:YES.
The conveyance is not mortis causa, which should be embodied in a
will. A will is a personal, solemn, revocable and free act by which
a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death.
The bequest or devise must pertain to the testator.
In this case, the savings account involved was in the nature of
conjugal funds. Since it was not shown that the funds belonged
exclusively to one party, it is presumed to be conjugal.
It is also not a donation inter vivos because it was to take
effect after the death of one party. It is also not a donation
between spouses because it involved no conveyance of a spouses own
properties to the other.
It was an error to include the savings account in the inventory
of the deceaseds assets because it is the separate property of
Romarico.
Thus, Romarico had the right to claim reimbursement.
A will is a personal, solemn, revocable and free act by which a
capacitated person disposes of his property and rights and declares
or complies with duties to take effect after his death.
Survivorship agreements are permitted by the NCC. However, its
operation or effect must not be violative of the law (i.e. used as
a cloak to hide an inofficious donation or to transfer property in
fraud of creditors or to defeat the legitime of a forced heir).
ARTICLE 804
Suroza v. Honrado
110 SCRA 388 | Atcheco
FACTS:
Spouses Mauro Suroza and Marcelina Salvador, who were childless,
reared a boy named Agapito. Agapito and his wife Nenita de Vera had
a daughter named Lilia. Nenita became Agapitos guardian when he
became disabled. A certain Arsenia de la Cruz also wanted to be his
guardian in another proceeding but it was dismissed. Arsenia then
delivered a child named Marilyn Sy to Marcelina who brought her up
as a supposed daughter of Agapito. Marilyn used the surname Suroza
although not legally adopted by Agapito. When Marcelina (who was an
illiterate) was 73 years old, she supposedly executed a notarial
will which was in English and thumbmarked by her. In the will, she
allegedly bequeathed all her properties to Marilyn. She also named
as executrix her laundrywoman, Marina Paje. Paje filed a petition
for probate of Marcelinas will. Judge Honrado appointed Paje as
administratrix and issued orders allowing the latter to withdraw
money from the savings account of Marcelina and Marilyn, and
instructing the sheriff to eject the occupants of testatrixs house,
among whom was Nenita. She and the other occupants filed a motion
to set aside the order ejecting them, alleging that Agapito was the
sole heir of the deceased, and that Marilyn was not the decedents
granddaughter. Despite this, Judge Honrado issued an order
probating Marcelinas will.
Nenita filed an omnibus petition to set aside proceedings, admit
opposition with counter-petition for administration and preliminary
injunction, and an opposition to the probate of the will and a
counter-petition for letters of administration, which were
dismissed by Judge Honrado. Instead of appealing, Nenita filed a
case to annul the probate proceedings but Judge Honrado dismissed
it. The judge then closed the testamentary proceeding after noting
that the executrix had delivered the estate to Marilyn, and that
the estate tax had been paid.
Ten months later, Nenita filed a complaint before the SC,
charging Judge Honrado with having probated the fraudulent will of
Marcelina. She reiterated her contention that the testatrix was
illiterate as shown by the fact that she affixed her thumbmark to
the will and that she did not know English, the language in which
the will was written. She further alleged that Judge Honrado did
not take into account the consequences of the preterition of
testatrixs son, Agapito. Judge Honrado in his comment did not deal
specifically with the allegations but merely pointed to the fact
that Nenita did not appeal from the decree of probate and that in a
motion, she asked for a thirty day period within which to vacate
the house of the testatrix. Nenita subsequently filed in the CA a
petition for certiorari and prohibition against Judge Honrado
wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void. The CA dismissed
the petition because Nenitas remedy was an appeal and her failure
to do so did not entitle her to resort to the special civil action
of certiorari. Relying on that decision, Judge Honrado filed a MTD
the administrative case for having allegedly become moot and
academic.
ISSUE:
W/N disciplinary action be taken against respondent judge for
having admitted to probate a will, which on its face is void
because it is written in English, a language not known to the
illiterate testatrix, and which is probably a forged will because
she and the attesting witnesses did not appear before the notary as
admitted by the notary himself.
HELD:
YES. Respondent judge, on perusing the will and noting that it
was written in English and was thumbmarked by an obviously
illiterate testatrix, could have readily perceived that the will is
void. In the opening paragraph of the will, it was stated that
English was a language understood and known to the testatrix. But
in its concluding paragraph, it was stated that the will was read
to the testatrix and translated into Filipino language. That could
only mean that the will was written in a language not known to the
illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every
will must be executed in a language or dialect known to the
testator.
The hasty preparation of the will is shown in the attestation
clause and notarial acknowledgment where Marcelina Salvador Suroza
is repeatedly referred to as the testator instead of testatrix. Had
respondent judge been careful and observant, he could have noted
not only the anomaly as to the language of the will but also that
there was something wrong in instituting the supposed granddaughter
as sole heiress and giving nothing at all to her supposed father
who was still alive. Furthermore, after the hearing conducted by
the deputy clerk of court, respondent judge could have noticed that
the notary was not presented as a witness. In spite of the absence
of an opposition, respondent judge should have personally conducted
the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed.
Noble v. Abaja
450 SCRA 265 | Bautista
FACTS:
The case is about the probate of the will of Alipio Abada (Not
respondent Abaja). Petitioner Belinda Noble is the administratrix
of the estate of Abada. Respondent Alipio Abaja filed a petition
for the probate of Abadas will. Petitioner Noble moved for
dismissal of the petition for probate.
Caponong-Noble points out that nowhere in the will can one
discern that Abada knew the Spanish language. She alleges that such
defect is fatal and must result in the disallowance of the
will.
ISSUE:
Should it be expressly stated in the will that it (the will) was
in a language known by the testator?
HELD:
No. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect used in the
will.[25] This is a matter that a party may establish by proof
aliunde. In this case, Alipio testified that Abada used to gather
Spanish-speaking people in their place. In these gatherings, Abada
and his companions would talk in the Spanish language. This
sufficiently proves that Abada speaks the Spanish language.
ARTICLES 805-806
Matias v. Salud
L-10751, 23 June 1958 | JEN SUCCESSION REVIEWERFACTS:The CFI
denied probate of the will of Gabina Raquel. It must be noted that
Gabina Raquel was suffering from herpes zoster that afflicted the
right arm and shoulder of the testatrix, which made writing
difficult and a painful act. Thus, upon the insistence of the
attorney, Gabina attempted to sign, but since it was so painful she
just managed to thumbmarked the foot of the document and the left
margin at each page. The parties opposing the probate of the will
contended that the will was void due to the irregularities in the
execution thereof.
One of the points raised by the oppositors was that the finger
mark can not be regarded as the decedents valid signature as it
does not show distinct identifying ridgelines. And since the finger
mark was an invalid signature, there must appear in the attestation
clause that another person wrote the testators name at his
request.
ISSUE:W/N the will was valid.
HELD:
YES. As to the clarity of the ridge impressions, it is so
dependent on aleatory requirements as to require dexterity that can
be expected of very few persons; testators should not be required
to possess the skill of trained officers.
And as to the validity of the thumbprints as signature, the SC
held that it has been held in a long line of cases that a
thumbprint is always a valid and sufficient signature for the
purpose of complying with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited
in cases of illness or infirmity. A thumbprint is considered as a
valid and sufficient signature in complying with the requirements
of the article.
Garcia v. Lacuesta
90:489 | Castillo
FACTS:
This case involves the will of Antero Mercado, which among other
defects was signed by the testator through a cross mark (an X). The
will was signed by Atty. Javier who wrote the name of Mercado as
testator and the latter allegedly wrote a cross mark after his
name. The CFI allowed the will but the CA disallowed it because its
attestation clause was defective for failing to certify 1) that the
will was signed by Atty. Javier at the express direction of the
testator, 2) that the testator wrote a cross at the end of his name
after Atty. Javier signed for him, and 3) that the 3 witnesses
signed the will in the presence of the testator and of each
other.
ISSUE:
Whether the will should be allowed despite the defect of the
attestation clause since the testator had placed a cross mark
himself as his signature.
HELD:
The attestation clause is fatally defective for failing to state
that Mercado directed Javier to write the testators name under his
express direction. Petitioners argument that such recital is
unnecessary because the testator signed the will himself using a
cross mark which should be considered the same as a thumb-mark
(which has been held sufficient in past cases) is not acceptable. A
cross mark is not the same as a thumb mark, because the cross mark
does not have the same trustworthiness of a thumb mark.
Barut v. Cabacungan
21:461 | Casuela
FACTS:
Barut applied for the probate of the will of deceased, Maria
Salomon. The testatrix stated in the will that being unable to read
or write, the will was read to her by Ciriaco Concepcion and
Timotea Inoselda and that she had instructed Severo Agayan to sign
her name to it as testatrix. The probate was contested by a number
of the relatives of the deceased on various grounds.
The probate court found that the will was not entitled to
probate because the handwriting of the person who it is alleged
signed the name of the testatrix to the will for and on her behalf
looked more like the handwriting of one of the other witnesses to
the will than to the person whose handwriting it was alleged to be
(i.e. The probate court denied probate because the signature seemed
to not have been by Severo Agayan but by another witness).
ISSUE:
Was the dissimilarity in handwriting sufficient to deny probate
of the will?
HELD:
No. The SC found that the mere dissimilarity in writing is
sufficient to overcome the uncontradicted testimony of all the
witnesses that the signature of the testatrix was written by Severo
Agayan. It is also immaterial who writes the name of the testatrix
provided it is written at her request and in her presence and in
the presence of all the witnesses to the execution of the will.
Based on Section 618 of the Code of Civil Procedure, it is clear
that with respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his
own or not. The important thing is that it clearly appears that the
name of the testatrix was signed at her express direction in the
presence of 3 witnesses and that they attested and subscribed it in
her presence and in the presence of each other. It may be wise that
the one who signs the testators name signs also his own; but that
is not essential to the validity of the will.
The court also held that the 3 cases cited by the lower court
was not applicable. In those cases, the person who signed the will
for the testator wrote his own name instead of the testators, so
that the testators name nowhere appeared in the will, and were thus
wills not duly executed.
Nera v. Rimando
18:450 | Cukingnan
FACTS:
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.
HELD:
Citing Jaboneta v. Gustilo, the court 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.
The question is whether the testator and the subscribing
witnesses to an alleged will signed 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.
Icasiano v. Icasiano
11 SCRA 422 | Dela Cuesta
FACTS:
Celso Icasiano filed a petition for the allowance and admission
to probate of the alleged will of Josefa Villacorte, and for his
appointment as executor thereof. Natividad and Enrique Icasiano, a
daughter and son of the testatrix, filed their opposition thereto.
During the course of the trial, on 19 March 1959, Celso, started to
present his evidence. But later, on 1 June 1959, he then filed an
amended and supplemental petition, alleging that the decedent had
left a will executed in duplicate and with all the legal
requirements, and that he was submitting the duplicate to the
court, which he found only on 26 May 1959. Natividad and Enrique
filed their opposition, but the will and its duplicate was admitted
to probate by the trial court. Hence, this appeal by the
oppositors.
Oppositors-appellants (Natividad and Enrique) in turn introduced
expert testimony to the effect that the signatures of the testatrix
in the duplicate are not genuine, nor were they written or affixed
on the same occasion as the original, and further aver that
granting that the documents were genuine, they were executed
through mistake and with undue influence and pressure because the
testatrix was deceived into adopting as her last will and testament
the wishes of those who will stand to benefit from the provisions
of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and
dispositions thereof, whereby proponents- appellees stand to profit
from properties held by them as attorneys- in-fact of the deceased
and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties
not mentioned in the will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion of free
disposal.
ISSUE:
Was the trial court correct in admitting the will and its
duplicate to probate given the allegations of forgery of the
testators signature, or that the will was executed under
circumstances constituting fraud and undue influence and
pressure?
(Not raised by the appellants in the case but discussed by the
Court and in Sirs book) Is the failure of one of the witnesses to
sign a page of the will fatal to its validity?
HELD:
The Supreme Court dismissed the appeal, holding that both the
will and its duplicate are valid in all respects.
On the allegations of forgery, fraud and undue influence:
The Court is satisfied that all the requisites for the validity
of a will have been complied with. The opinion of a handwriting
expert trying to prove forgery of the testatrix's signature failed
to convince the Court, not only because it is directly contradicted
by another expert but principally because of the paucity of the
standards used by him (only three other signatures), considering
the advanced age of the testatrix, the evident variability of her
signature, and the effect of writing fatigue.
Similarly, the alleged slight variance in blueness of the ink in
the admitted and questioned signatures does not appear reliable,
considering that standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting
power. On the whole, the testimony of the oppositor's expert is
insufficient to overcome that of the notary and the two
instrumental witnesses as to the wills execution, which were
presented by Celso during the trial.
Nor is there adequate evidence of fraud or undue influence. The
fact that some heirs are more favored than others is proof of
neither. Diversity of apportionment is the usual reason for making
a testament; otherwise, the decedent might as well die intestate.
The testamentary disposition that the heirs should not inquire into
other property and that they should respect the distribution made
in the will, under penalty of forfeiture of their shares in the
free part, do not suffice to prove fraud or undue influence. They
appear motivated by the desire to prevent prolonged litigation
which, as shown by ordinary experience, often results in a sizeable
portion of the estate being diverted into the hands of non- heirs
and speculators. Whether these clauses are valid or not is a matter
to be litigated on another occasion. It is also well to note that
fraud and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows absence
of definite evidence against the validity of the will.
On the failure of a witness to sign a page in the original, but
signed all pages in the duplicate:
The records show that the original of the will consists of five
pages, and while signed at the end and in every page, it does not
contain the signature of one of the attesting witnesses, Atty. Jose
V. Natividad, on page 3 thereof; but the duplicate copy attached to
the amended and supplemental petition is signed by the testatrix
and her three attesting witnesses in each and every page.
Witness Atty. Natividad, who testified on his failure to sign
page 3 of the original, admits that he may have lifted two pages
instead of one when he signed the same, but affirmed that page 3
was signed in his presence.
The failure Atty. Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by
the duplicate copy of the will, which bears a complete set of
signatures in every page. The text of the attestation clause and
the acknowledgment before the Notary Public likewise evidence that
no one was aware of the defect at the time. Therefore, Atty.
Natividads failure to sign page 3 of the original through mere
inadvertence does not affect the wills validity.
Impossibility of substitution of this page is assured not only
the fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over
whose conduct she had no control, where the purpose of the law to
guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the full observance
of the statutory requisites.
This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements, where
the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament,
with the only page signed at its foot by testator and witnesses,
but not in the left margin, could nevertheless be probated (Abangan
vs. Abangan, 41 Phil. 476); and that despite the requirement for
the correlative lettering of the pages of a will, the failure to
mark the first page either by letters or numbers is not a fatal
defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify
the Court's policy to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of the testamentary
privilege.
The appellants also argue that since the original of the will is
in existence and available, the duplicate is not entitled to
probate. Since they opposed probate of the original because it
lacked one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma: if the original is
defective and invalid, then in law there is no other will but the
duly signed carbon duplicate, and the same is probatable. If the
original is valid and can be probated, then the objection to the
signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate serves to prove that the
omission of one signature in the third page of the original
testament was inadvertent and not intentional.
Cagro v. Cagro
92:1032 | DinaFACTS:
Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent
allegedly made a will prior to his death, the will was probated
before the CFI of Samar. However, the oppositors-appellant objected
the probate proceeding alleging that the will is fatally defective
because its attestation clause is not signed by the attesting
witnesses. It is undisputed that the signatures of the three
witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin.
ISSUE:
W/N the will may be probated even if the signatures of the
witnesses do not appear at the bottom of the attestation clause,
and instead, they were placed on the left-hand margin of the page
containing the same.
HELD:
No. The position taken by the oppositor-appellant is correct.
The attestation clause is 'a memorandum of the facts attending the
execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner-appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent occasion
and in the absence of the testator and any or all of the
witnesses.
Bautista Angelo, J. dissenting:
I dissent. In my opinion the will in question has substantially
complied with the formalities of the law and, therefore, should be
admitted to probate. It appears that the will was signed by the
testator and was attested by three instrumental witnesses, not only
at the bottom, but also on the left-hand margin. The witnesses
testified not only that the will was signed by the testator in
their presence and in the presence of each other but also that when
they did so, the attestation clause was already written thereon.
Their testimony has not been contradicted. The only objection set
up by the oppositors to the validity of the will is the fact that
the signatures of the instrumental witnesses do not appear
immediately after the attestation clause.
This objection is too technical to be entertained. In the case
of Abangan vs. Abangan, (40 Phil. 476), this court said that when
the testamentary dispositions "are wholly written on only one sheet
signed at the bottom by the testator and three witnesses (as the
instant case),their signatures on the left margin of said sheet
would be completely purposeless." In such a case, the court said,
the requirement of the signatures on the left hand margin was not
necessary because the purpose of the law which is to avoid the
substitution of any of the sheets of the will, thereby changing the
testator's dispositions has already been accomplished. We may say
the same thing in connection with the will under consideration
because while the three instrumental witnesses did not sign
immediately by the majority that it may have been only added on a
subsequent occasion and not at the uncontradicted testimony of said
witnesses to the effect that such attestation clause was already
written in the will when the same was signed.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista's dissenting opinion and may
add that the majority decision erroneously sets down as a fact that
the attestation clause was not signed when the witnesses signatures
appear on the left margin and the real and only question is whether
such signatures are legally sufficient. The law on wills does not
provide that the attesting witness should sign the clause at the
bottom. In the absence of such provision, there is no reason why
the signatures on the margin are not acceptable
Cruz v. Villasor
54 SCRA 752 | Dizon
FACTS:
The CFI of Cebu allowed the probate of Valente Z. Cruzs last
will and testament. His surviving spouse, Agapita Cruz, opposed the
allowance of the will alleging it was executed through fraud,
deceit, misrepresentation and undue influence; that the said
instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties
he was disposing and that the supposed last will and testament was
not executed in accordance with law. Agapita appealed the allowance
of the will by certiorari.
ISSUE:
W/N the will was executed in accordance with law (particularly
Articles 805 and 806 of the NCC, the first requiring at least three
credible witnesses to attest and subscribe to the will, and the
second requiring the testator and the witnesses to acknowledge the
will before a notary public.).
HELD:
NO. Of the three instrumental witnesses to the will, one of them
(Atty. Teves) is at the same time the Notary Public before whom the
will was supposed to have been acknowledged. The notary public
before whom the will was acknowledged cannot be considered as the
third instrumental witness since he cannot acknowledge before
himself his having signed the will. To acknowledge before means to
avow (Javellana v. Ledesma; Castro v. Castro); to own as genuine,
to assent, to admit; and "before" means in front or preceding in
space or ahead of. Consequently, if the third witness were the
notary public himself, he would have to avow assent, or admit his
having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will
appear before the other to acknowledge his participation in the
making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity. Furthermore, the function of a
notary public is, among others, to guard against any illegal or
immoral arrangement (Balinon v. De Leon). That function would
defeated if the notary public were one of the attesting
instrumental witnesses. It would place him in inconsistent position
and the very purpose of acknowledgment, which is to minimize fraud,
would be thwarted.
Admittedly, there are American precedents holding that notary
public may, in addition, act as a witness to the executive of the
document he has notarized. There are others holding that his
signing merely as notary in a will nonetheless makes him a witness
thereon. But these authorities do not serve the purpose of the law
in this jurisdiction or are not decisive of the issue herein
because the notaries public and witnesses referred to in these
cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. Here, the notary
public acted not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805-06. Probate of
will set aside.
Javellana v. Ledesma
97:258 | EnriquezFACTS:The Court of First Instance of Iloilo
admitted to probate the documents in the Visayan dialectas the
testament and codicil duly executed by the deceased Da. Apolinaria
Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and
Vicente Yap as witnesses. The contestant, Matea Ledesma, sister and
nearest surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed in
conformity with law. Ledesma is questioning the validity of the
codicil contending that the fact that the notary did not sign the
instrument in the presence of the testator and the witness made the
codicil was not executed in conformity with the lawISSUE: W/N the
codicil was validly executed.
HELD:
The instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been
signed by the testatrix and the witnesses at the San Pablo
Hospital, the same was signed and sealed by notary public Gimotea
on the same occasion. On the other hand, Gimotea affirmed that he
did not do so, but brought the codicil to his office, and signed
and sealed it there. The variance does not necessarily imply
conscious perversion of truth on the part of the witnesses, but
appears rather due to a well-established phenomenon, the tendency
of the mind, in recalling past events, to substitute the usual and
habitual for what differs slightly from it.
Whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses,
does not affect the validity of the codicil. The new Civil Code
does not require that the signing of the testator, witnesses and
notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while
testator and witnesses sign in the presence of each other, all that
is thereafter required is that "every will must be acknowledged
before a notary public by the testator and the witnesses" (Art.
806); i.e., that the latter should avow to the certifying officer
the authenticity of their signatures and the voluntariness of their
actions in executing the testamentary disposition. This was done in
this case. The subsequent signing and sealing by the notary of his
certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of
the testamentary act. Hence their separate execution out of the
presence of the testatrix and her witnesses cannot be said to
violate the rule that testaments should be completed without
interruption. It is noteworthy that Article 806 of the new Civil
Code does not contain words requiring that the testator and the
witnesses should acknowledge the testament on the same day or
occasion that it was executed.
Ortega v. Valmonte
478 SCRA 247 | Escosia
FACTS:
Two years after the arrival of Placido from the United States
and at the age of 80 he wed Josefina who was then 28 years old. But
in a little more than two years of wedded bliss, Placido died.
Placido executed a notarial last will and testament written in
English and consisting of 2 pages, and dated 15 June 1983but
acknowledged only on 9 August 1983. The allowance to probate of
this will was opposed by Leticia, Placidos sister. According to the
notary public who notarized the testators will, after the testator
instructed him on the terms and dispositions he wanted on the will,
the notary public told them to come back on 15 August 1983 to give
him time to prepare. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were
instructed by his wife to come back on 9 August 1983. The formal
execution was actually on 9 August 1983. He reasoned he no longer
changed the typewritten date of 15 June 1983 because he did not
like the document to appear dirty.
Petitioners argument:
1. At the time of the execution of the notarial will Placido was
already 83 years old and was no longer of sound mind.
2. Josefina conspired with the notary public and the 3 attesting
witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation
of the will.
ISSUE:
1. W/N Placido has testamentary capacity at the time he
allegedly executed the will.
2. W/N the signature of Placido in the will was procured by
fraud or trickery.
HELD:
1. YES. Despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares
in them and even their location. As regards the proper objects of
his bounty, it was sufficient that he identified his wife as sole
beneficiary. The omission of some relatives from the will did not
affect its formal validity. There being no showing of fraud in its
execution, intent in its disposition becomes irrelevant.
2. NO. Fraud is a trick, secret devise, false statement, or
pretense, by which the subject of it is cheated. It may be of such
character that the testator is misled or deceived as to the nature
or contents of the document which he executes, or it may relate to
some extrinsic fact, in consequence of the deception regarding
which the testator is led to make a certain will which, but for
fraud, he would not have made.
The party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. The burden to show
otherwise shifts to the proponent of the will only upon a showing
of credible evidence of fraud.
Omission of some relatives does not affect the due execution of
a will. Moreover, the conflict between the dates appearing on the
will does not invalidate the document, because the law does not
even require that a notarial will be executed and acknowledged on
the same occasion. The variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and instrumental
witnesses.
Guerrero v. Bihis
521 SCRA 394 | Estorninos
FACTS:
Felisa Tamio de Buenaventura, mother of petitioner Bella A.
Guerrero and respondent Resurreccion A. Bihis, died. Guerrero filed
for probate in the RTC QC. Respondent Bihis opposed her elder
sister's petition on the following grounds: the will was not
executed and attested as required by law; its attestation clause
and acknowledgment did not comply with the requirements of the law;
the signature of the testatrix was procured by fraud and petitioner
and her children procured the will through undue and improper
pressure and influence. Petitioner Guerrero was appointes special
administratrix. Respondent opposed petitioner's appointment but
subsequently withdrew her opposition. The trial court denied the
probate of the will ruling that Article 806 of the Civil Code was
not complied with because the will was "acknowledged" by the
testatrix and the witnesses at the testatrix's residence at No. 40
Kanlaon Street, Quezon City before Atty. Macario O. Directo who was
a commissioned notary public for and in Caloocan City.
ISSUE: Did the will "acknowledged" by the testatrix and the
instrumental witnesses before a notary public acting outside the
place of his commission satisfy the requirement under Article 806
of the Civil Code?
HELD:
No. One of the formalities required by law in connection with
the execution of a notarial will is that it must be acknowledged
before a notary public by the testator and the witnesses. 6 This
formal requirement is one of the indispensable requisites for the
validity of a will. 7 In other words, a notarial will that is not
acknowledged before a notary public by the testator and the
instrumental witnesses is void and cannot be accepted for probate.
cDICaSThe Notarial law provides: SECTION 240.Territorial
jurisdiction. The jurisdiction of a notary public in a province
shall be co-extensive with the province. The jurisdiction of a
notary public in the City of Manila shall be co-extensive with said
city. No notary shall possess authority to do any notarial act
beyond the limits of his jurisdiction.
The compulsory language of Article 806 of the Civil Code was not
complied with and the interdiction of Article 240 of the Notarial
Law was breached. Ineluctably, the acts of the testatrix, her
witnesses and Atty. Directo were all completely void.
Lee v. Tambago
544 SCRA 393 | ForteaFACTS:
Complainant, Manuel L. Lee, charged respondent, Atty. Regino B.
Tambago, with violation of Notarial Law and the Ethics of the legal
profession for notarizing a will that is alleged to be spurious in
nature in containing forged signatures of his father, the decedent,
Vicente Lee Sr. and two other witnesses. In the said will, the
decedent supposedly bequeathed his entire estate to his wife Lim
Hock Lee, save for a parcel of land which he devised to Vicente
Lee, Jr. and Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before
respondent on June 30, 1965. Complainant, however, pointed out that
the residence certificate of the testator noted in the
acknowledgment of the will was dated January 5, 1962. Furthermore,
the signature of the testator was not the same as his signature as
donor in a deed of donation which supposedly contained his
purported signature. Complainant averred that the signatures of his
deceased father in the will and in the deed of donation were "in
any way entirely and diametrically opposed from one another in all
angle[s]."
Complainant also questioned the absence of notation of the
residence certificates of the purported witnesses Noynay and Grajo.
He alleged that their signatures had likewise been forged and
merely copied from their respective voters affidavits.
Complainant further asserted that no copy of such purported will
was on file in the archives division of the Records Management and
Archives Office of the National Commission for Culture and the Arts
(NCCA).
ISSUE:
Was the will spurious?
HELD:
Yes, thus Tambago violated the Notarial Law and the ethics of
legal profession.The law provides for certain formalities that must
be followed in the execution of wills. The object of solemnities
surrounding the execution of wills is to close the door on bad
faith and fraud, to avoid substitution of wills and testaments and
to guarantee their truth and authenticity.
A notarial will, as the contested will in this case, is required
by law to be subscribed at the end thereof by the testator himself.
In addition, it should be attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another. The will in question was attested by only two witnesses.
On this circumstance alone, the will must be considered void. This
is in consonance with the rule that acts executed against the
provisions of mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity. The Civil Code
likewise requires that a will must be acknowledged before a notary
public by the testator and the witnesses. An acknowledgment is the
act of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signatory actually
declares to the notary public that the same is his or her own free
act and deed. The acknowledgment in a notarial will has a two-fold
purpose: (1) to safeguard the testators wishes long after his
demise and (2) to assure that his estate is administered in the
manner that he intends it to be done.
A cursory examination of the acknowledgment of the will in
question shows that this particular requirement was neither
strictly nor substantially complied with. For one, there was the
conspicuous absence of a notation of the residence certificates of
the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notation of the testators old residence certificate
in the same acknowledgment was a clear breach of the law. These
omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent
was required to faithfully observe the formalities of a will and
those of notarization. These formalities are mandatory and cannot
be disregarded.
ARTICLE 808
Garcia v. Vasquez
32 SCRA 489 | Grapilon
FACTS:
This is a petition for appeal from the CFI of Manila admitting
to probate the will of Gliceria Avelino del Rosario (Gliceria)
executed in 1960. Likewise, this is also an appeal to remove the
current administrator, Consuelo Gonzales-Precilla( Consuelo) as
special administratrix of the estate on the ground of Consuelo
possesses interest adverse to the estate and to order the RD of
Manila to annotate on the registered lands a notice of Lis
Pendens.
When Gliceria died she had no descendants, ascendants, bros or
sisses and 90 yrs old. After which, her niece, Consuelo petitioned
the court to be the administratrix of the properties. The court
approved this because Consuelo has been was already managing the
properties of the deceased during her lifetime. What the
respondents allege is that in the last years of the deceased,
Consuelo sought the transfer of certain parcels of land valued at
300k for a sale price of 30k to her husband Alfonso through fraud
and intimidation. In addition, the oppositors presented evidence
that Consuelo asked the court to issue new Certificates of Titles
to certain parcels of land for the purpose of preparing the
inventory to be used in the probate. Also shown was that NEW TCTs
were issued by the RD for certain lands of the deceased after
Consuelo asked for the old TCTs.
At the end of the probate proceedings, the court ruled that
Counsuelo should be made the administrator, and that the will was
duly executed because of these reasons: NO EVIDENCE HAS BEEN
PRESENTED to establish that the deceased was not of sound mind,
that eventough the allegations state that the deceased prepared
another will in 1956 (12pages), the latter is not prevented from
executing another will in 1960 (1page), and that inconsistencies in
the testimonies of the witnesses prove their truthfulness.
ISSUE:
Was the will in 1960 (1 page) duly/properly executed?
HELD:
NO. Provision of Article 808 mandatory. Therefore, For all
intents and purposes of the rules on probate, the testatrix was
like a blind testator, and the due execution of her will would have
required observance of Article 808. The rationale behind the
requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate) ,
is to make the provisions thereof known to him, so that he may be
able to object if they are not in accordance with his wishes.
Likewise, the 1970 will was done in Tagalog which the deceased is
not well versed but in Spanish. This creates doubt as to the due
execution of the will and as well as the typographical errors
contain therein which show the haste in preparing the 1 page will
as compared to the 12 page will created in 1956 written in Spanish.
ALSO, as to the blindness, there was proof given by the testimony
of the doctor that the deceased could not read at near distances
because of cataracts. (Testatrixs vision was mainly for viewing
distant objects and not for reading print.) Since there is no proof
that it was read to the deceased twice, the will was NOT duly
executed.
ALSO, Consuelo should be removed as administrator because she is
not expected to sue her own husband to reconvey the lands to the
estate alleged to have been transferred by the deceased to her own
husband.
The notice of lis pendens is also not proper where the issue is
not an action in rem, affecting real property or the title
thereto.
Alvarado v. Gaviola
226 SCRA 347 | JEN SUCCESSION REVIEWERFACTS:On 5 November 1977,
79-year old Brigido Alvarado executed a notarial will entitled
Huling Habilin wherein he disinherited an illegitimate son,
petitioner Cesar Alvarado, and expressly revoked a previously
executed holographic will at the time awaiting probate before the
RTC of Laguna.
According to Bayani Ma. Rino, private respondent, he was present
when the said notarial will was executed, together with three
instrumental witnesses and the notary public, where the testator
did not read the will himself, suffering as he did from
glaucoma.
Rino, a lawyer, drafted the eight-page document and read the
same aloud before the testator, the three instrumental witnesses
and the notary public, the latter four following the reading with
their own respective copies previously furnished them.
Thereafter, a codicil entitled Kasulatan ng Pagbabago ng Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5,
1977 ni Brigido Alvarado was executed changing some dispositions in
the notarial will to generate cash for the testators eye
operation.
Said codicil was likewise not read by Brigido Alvarado and was
read in the same manner as with the previously executed will.
When the notarial will was submitted to the court for probate,
Cesar Alvarado filed his opposition as he said that the will was
not executed and attested as required by law; that the testator was
insane or mentally incapacitated due to senility and old age; that
the will was executed under duress, or influence of fear or
threats; that it was procured by undue pressure and influence on
the part of the beneficiary; and that the signature of the testator
was procured by fraud or trick.
ISSUE:
W/N notarial will of Brigido Alvarado should be admitted to
probate despite allegations of defects in the execution and
attestation thereof as testator was allegedly blind at the time of
execution and the double-reading requirement under Art. 808 of the
NCC was not complied with. HELD:YES. The spirit behind the law was
served though the letter was not. Although there should be strict
compliance with the substantial requirements of law in order to
insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the testators
will.
Cesar Alvardo was correct in asserting that his father was not
totally blind (of counting fingers at 3 feet) when the will and
codicil were executed, but he can be so considered for purposes of
Art. 808.
That Art. 808 was not followed strictly is beyond cavil.
However, in the case at bar, there was substantial compliance
where the purpose of the law has been satisfied: that of making the
provisions known to the testator who is blind or incapable of
reading the will himself (as when he is illiterate) and enabling
him to object if they do not accord with his wishes.
Rino read the testators will and codicil aloud in the presence
of the testator, his three instrumental witnesses, and the notary
public.
Prior and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his
instructions.
Only then did the signing and acknowledgment take place.
There is no evidence that the contents of the will and the
codicil were not sufficiently made known and communicated to the
testator.
With four persons, mostly known to the testator, following the
reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was
read to him were the terms actually appearing on the typewritten
documents.
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will to himself
(as when he is illiterate), is to make the provisions thereof known
to him, so that he may be able to object if they are not in
accordance with his wishes.
Although there should be strict compliance with the substantial
requirements of law in order to insure the authenticity of the
will, the formal imperfections should be brushed aside when they do
not affect its purpose and which, when taken into account, may only
defeat the testators will.
ARTICLE 809
Caneda v. CA
222 SCRA 781 | JEN SUCCESSION REVIEWERFACTS:
On December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a
last will and testament at his residence before 3 witnesses.
He was assisted by his lawyer, Atty. Emilio Lumontad.
In the will, it was declared that the testator was leaving by
way of legacies and devises his real and personal properties to
several people all of whom do not appear to be related to the
testator.
4 months later, Mateo Caballero himself filed a case seeking the
probate of his last will and testament, but numerous postponements
pushed back the initial hearing of the probate court regarding the
will.
On May 29, 1980, the testator passed away before his petition
could finally be heard by the probate court.
Thereafter one of the legatees, Benoni Cabrera, sought his
appointment as special administrator of the testators estate.
Thereafter, the petitioners, claiming to be nephews and nieces
of the testator, instituted a second petition for intestate
proceedings. They also opposed the probate of the testators will
and the appointment of a special administrator for his estate.
Benoni Cabrera died and was replaced by William Cabrera as
special administrator and gave an order that the testate
proceedings for the probate of the will had to be heard and
resolved first.
In the course of the proceedings, petitioners opposed to the
allowance of the testators will on the ground that on the alleged
date of its execution, the testator was already in poor state of
health such that he could not have possibly executed the same. Also
the genuineness of the signature of the testator is in doubt.
On the other hand, one of the attesting witnesses and the notary
public testified that the testator executed the will in question in
their presence while he was of sound and disposing mind and that
the testator was in good health and was not unduly influenced in
any way in the execution of his will.
Probate court then rendered a decision declaring the will in
question as the last will and testament of the late Mateo
Caballero.
CA affirmed the probate courts decision stating that it
substantially complies with Article 805. Hence this appeal.
ISSUE:W/N the attestation clause in the will of the testator is
fatally defective or can be cured under the art. 809.HELD:No. It
does not comply with the provisions of the law.
Ordinary or attested wills are governed by Arts. 804 to 809. The
will must be acknowledged before a notary public by the testator
and the attesting witnesses. The attestation clause need not be
written in a language known to the testator or even to the
attesting witnesses.
It is a separate memorandum or record of the facts surrounding
the conduct of execution and once signed by the witnesses it gives
affirmation to the fact that compliance with the essential
formalities required by law has been observed.
The attestation clause, therefore, provides strong legal
guaranties for the due execution of a will and to insure the
authenticity thereof.
It is contended by petitioners that the attestation clause in
the will failed to specifically state the fact that the attesting
witnesses witnessed the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the
will and every page thereof in the presence of the testator and of
each other. And the Court agrees.
The attestation clause does not expressly state therein the
circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each
other.
The phrase, and he has signed the same and every page thereof,
on the space provided for his signature and on the left hand
margin, obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words as his last
will and testament.
Clearly lacking is the statement that the witnesses signed the
will and every page thereof in the presence of the testator and of
one another. That the absence of the statement required by law is a
fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be probated.
Also, Art. 809 does not apply to the present case because the
attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the presence of
the testator and of each other. The defect in this case is not only
with respect to the form or the language of the attestation clause.
The defects must be remedied by intrinsic evidence supplied by the
will itself which is clearly lacking in this case.
Therefore, the probate of the will is set aside and the case for
the intestate proceedings shall be revived.
Article 809 cannot be used to cure the defects of the will when
it does not pertain to the form or language of the will. This is
because there is not substantial compliance with Article 805.
Azuela v. CA
487 SCRA 119 | JalipaARTICLE 810
Roxas v. De Jesus
134 SCRA 245 | Lantion
FACTS:
Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec.
pro. for partition of the estate of the deceased and also delivered
the holographic will of the deceased. Simeon stated that he found a
notebook belonging to deceased, which contained a letter-will
entirely written and signed in deceaseds handwriting. The will is
dated "FEB./61 " and states: "This is my will which I want to be
respected although it is not written by a lawyer. Roxas relatives
corroborated the fact that the same is a holographic will of
deceased, identifying her handwriting and signature. Respondent
opposed probate on the ground that it such does not comply with
Article 810 of the CC because the date contained in a holographic
will must signify the year, month, and day.
ISSUE:
W/N the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the
Article 810 of the Civil Code.
HELD:
Valid date.
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. The underlying and
fundamental objectives permeating the provisions of the law wills
consists in the liberalization of the manner of their execution
with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. If a
Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud
in the exercise thereof is obviated, said Will should be admitted
to probate (Rey v. Cartagena 56 Phil. 282).
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. InAbangan v. Abanga40 Phil. 476, we ruled that: The
object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guaranty their truth and
authenticity. ...
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 carefully reviewed the records of this case and 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.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution. However, when as
in the case at bar, there is no appearance of fraud, bad faith,
undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will
should be allowed under the principle of substantial
compliance.
Labrador v. CA
184 SCRA 170 | JEN SUCCESSION REVIEWERFACTS:Melecio died leaving
behind a parcel of land to his heirs. However, during probate
proceedings, Jesus and Gaudencio filed an opposition on the ground
that the will has been extinguished by implication of law alleging
that before Melecios death, the land was sold to them evidenced by
TCT No. 21178. Jesus eventually sold it to Navat.
Trial court admitted the will to probate and declared the TCT
null and void. However, the CA on appeal denied probate on the
ground that it was undated.
ISSUE:W/N the alleged holographic will is dated, as provided for
in Article 810 of CC.
HELD:
YES. The law does not specify a particular location where the
date should be placed in the will. The only requirements are that
the date be in the will itself and executed in the hand of the
testator.
The intention to show March 17 1968 as the date of the execution
is plain from the tenor of the succeeding words of the paragraph.
It states that this being in the month of March 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than Melecio Labrador, their father. This clearly shows that
this is a unilateral act of Melecio who plainly knew that he was
executing a will.
ARTICLE 811
Gan v. Yap
104:509 | Lugtu
FACTS:
Felicidad Yap died of a heart failure, leaving properties in
Pulilan, Bulacan, and in Manila.
Fausto E. Gan, her nephew, initiated the proceedings in the
Manila CFI with a petition for the probate of a holographic will
allegedly executed by the deceased.
The will was not presented because Felicidads husband,
Ildefonso, supposedly took it. What was presented were witness
accounts of relatives who knew of her intention to make a will and
allegedly saw it as well. According to the witnesses, Felicidad did
not want her husband to know about it, but she had made known to
her other relatives that she made a will.
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
Judge refused to probate the alleged will on account of the
discrepancies arising from the facts. For one thing, it is strange
that Felicidad made her will known to so many of her relatives when
she wanted to keep it a secret and she would not have carried it in
her purse in the hospital, knowing that her husband may have access
to it. There was also no evidence presented that her niece was her
confidant.
In the face of these improbabilities, the trial judge had to
accept the oppositors evidence that Felicidad did not and could not
have executed such holographic will.
ISSUE:
1. May a holographic will be probated upon the testimony of
witnesseswho have allegedly seen it and who declare that it was in
the handwriting of the testator?
2. W/N Felicidad could have executed the holographic will.HELD:
1. No. The will must be presented.
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 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 ineachand 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. Authenticity and due execution is
the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the
testimony of one of the subscribing witnesses would be sufficient
if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. From the testimony of such witnesses
(and of other additional witnesses) the court may form its opinion
as to the genuineness and authenticity of the testament, and the
circumstances its due execution.
With regard to 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."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 need not have seen the execution of the
holographic will, but they must be familiar with the decedents
handwriting. Obviously, when the will itself is not submitted,
thesemeans of opposition, andof assessing the evidenceare not
available. And then the only guaranty of authenticity the
testator's handwriting has disappeared.
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. Could Rule 77 be extended, by analogy,
to holographic wills? (NO)
Spanish commentators agree that one of the greatest objections
to the holographic will is that it may be lost or stolen an implied
admission that such loss or theft renders it useless.
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 whetherin the
face of the document itselfthey think the testator wrote it.
Obviously, this they can't do unlessthe will itselfis presented to
the Court and to them.
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.(According to the Fuero, 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.
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.
At this point, before proceeding further, it might be convenient
to explain why, unlike holographic wills, ordinary wills may be
proved by testimonial evidence when lost or destroyed. The
difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental witnesses (and of
the notary, now). The loss of the holographic will entails the loss
of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince
three witnesses (four with the notary) deliberately to lie. And
then their lies could be checked and exposed, their whereabouts and
acts on the particular day, the likelihood that they would be
called by the testator, their intimacy with the testator, etc. And
if they were intimates or trusted friends of the testator they are
not likely to end themselves to any fraudulent scheme to distort
his wishes. Last but not least, they can not receive anything on
account of the will.
Whereas in the case of holographic wills, if oral testimony were
admissibleonly one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the latter, having
no interest, could easily fall for it, and in court they would in
all good faith affirm its genuineness and authenticity. The will
having been lost the forger may have purposely destroyed it in an
"accident" the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And considering
that the holographic will may consist of two or three pages,
andonly oneof 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.
One more fundamental difference: in the case of a lost will, the
three subscribing witnesses would be testifyingto a factwhich 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 asto their opinionof 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.
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.
2. No. 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.Rodelas v. Aranza
119 SCRA 16 | Nieves
FACTS:
Rodelas filed a petition with the CFI of Rizal for the probate
of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor.
Aranza, et al. filed a MTD on the grounds of:
1. Rodelas was estopped from claiming that the deceased left a
will by failing to produce the will within twenty days of the death
of the testator as required by Rule 75, section 2 of the Rules of
Court;
2. the copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take
effect after death, and therefore it was not a will, it was merely
an instruction as to the management and improvement of the schools
and colleges founded by the decedent;
3. the hollographic will itself, and not an alleged copy
thereof, must be produced, otherwise it would produce no effect
because lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills
4. the deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
MTD was denied. Aranza et al. filed an MR, Rodelas filed an
opposition.
The CFI set aside its order and dismissed the petition for the
probate of the will stating that in the case of Gam vs. Yap, 104
Phil. 509, 522, the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said
wills.
And that the alleged holographic will was executed on January
25, 1962 while Ricardo B. Bonilla died on May 13, 1976. The lapse
of more t