Boom SuccessionCases(FullText)

7/31/2019 Boom SuccessionCases(FullText)

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SECOND DIVISION

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, Petitioners, vs. THE COURT OF APPEALS AND CLEMENTE SAND, Respondents.

PUNO, J.:

This is an appeal by certiorarifrom the Decision of the Court ofAppeals

1in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE,and the petition for probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94,2in Sp. Proc. No. Q-37171, and the instrument submitted for

probate is the holographic will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand,Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at thetime of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in everyrespect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent'shandwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitionersthrough improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in

the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedentin its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and thetestamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply withthe formalities prescribed by law nor for lack of testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The onlyobjections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to thequestion of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrixother than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must beaccepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix.

xxx xxx xxx

While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners,however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the

handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have beenpresented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be

the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that theholographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.

xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court thatthe testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the

holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making thewill, knew the valueof the estate to be disposed of, the properobjectof her bounty, and the characterof the testamentary act . . . The

will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number andsquare meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering thatshe had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient

showing that she knows the character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved infavor of the allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged thatthe said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the

evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Privaterespondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the timeof her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Herindependence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood

of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improperpressure in question herein only refer to the making of a will and not as to the specific testamentary provisions therein which is the


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proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance ofthe will herein.

Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should bepreferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the

holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate.3(Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that,"the holographic will fails to meet the requirements for its validity."

4It held that the decedent did not comply with Articles 813 and 814 of

the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposit ion has a

signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his fullsignature.

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that theerasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for hisbenefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the timeof fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signaturethereto.

These lists are exclusive; no other grounds can serve to disallow a will.5Thus, in a petition to admit a holographic will to probate, the

only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether saidwill was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentarycapacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of thedecedent.

6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalitiesprescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed theprobate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919),that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution ofwills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a wayas to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law torestrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any otherinterpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator'slast will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgmentrequirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic orhandwritten by the testator himself,

7as provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It issubject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)


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Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten bythe testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in theholographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that thesedispositionscannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In thecase ofKalaw vs. Relova132 SCRA 237 242(1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been notedunder his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased,

corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segunla regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985."

8(Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator'ssignature,

9their presence does not invalidate the will itself.

10The lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions(Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions coveringholographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by thetestator and signed by him, and must contain a statement of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code - andnot those found in Articles 813 and 814 of the same Code - are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran,Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated.However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certainprovisions of the will.

11In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is

in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety).Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's otherheirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot inCabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, datedNovember 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the abovequalification as regards the Cabadbaran property. No costs.chanroblesvirtualawlibrary

SO ORDERED.

SECOND DIVISION

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA,RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA,represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,vs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:


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Presented for resolution by this Court in the present petition for review on certiorariis the issue of whether or not the attestation clausecontained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of hislife, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca,Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notarypublic, Atty. Filoteo Manigos, in the preparation of that last will.

1It was declared therein, among other things, that the testator was

leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo,Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator.

2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R beforeBranch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petitionfor hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May29, 1980, the testator passed away before his petition could finally be heard by the probate court.

3On February 25, 1981, Benoni

Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the testator's estate, the estimatedvalue of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981.

4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter ofthe Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court ofFirst Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with SpecialProceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and theappointment of a special administrator for his estate.

5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu,appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return ofthe records of Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard

and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebuwhere it remained until the conclusion of the probate proceedings.6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowanceof the testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such thathe could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of thetestator therein.

7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that thetestator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions ofthe oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca alsotestified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other twoattesting witnesses were not presented in the probate hearing as the had died by then.

8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late MateoCaballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies ofAtty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the LastWill and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballerowho initiated the probate of his Will during his lifetime when he caused the filing of the original petition now markedExhibit "D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositorsmanifested that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert ofthe NBI but it would seem that despite their avowal and intention for the examination of this signature of MateoCaballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented AureaCaballero and Helen Caballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it wasexecuted in accordance with all the requisites of the law.

9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669.They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to

specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they alsosigned the will and all the pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision10

affirming that of the trial court, and ruling that the attestation clausein the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be considered as having substantialycomplied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which theoppositors claim to be defective is "we do certify that the testament was read by him and the attestator, MateoCaballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment,each page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament, and hehas signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin inthe presence of the said testator and in the presence of each and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the saidwill was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as


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the language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses,and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of oneanother." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase asformulated is in substantial compliance with the requirement of the law."

11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution ofJanuary 14, 1992,

12hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner

not in accord with the law and settled jurisprudence on the matter and are now questioning once more, on the same ground as thatraised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should bemade in aid of the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to controlto a certain degree the disposition of his estate after his death.

13Under the Civil Code, there are two kinds of wills which a testator may

execute.14

the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or bythe testator's name written by some other person in his presence, and by his express direction, and attested andsubscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall alsosign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall benumbered correlatively in letters placed on the upper part of each page.

The attestation should state the number of pages used upon which the will is written, and the fact that the testatorsigned the will and every page thereof, or caused some other person to write his name, under his express direction,

in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pagesthereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witness, it shall be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness.15

hence it is likewiseknown as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to doso. Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner.On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and thenagain, by the notary public before whom it is acknowledged.

16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testatorhimself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will isthat they should be in writing and must have been executed in a language or dialect known to the testator.

17

However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to thetestator since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewiseneed not even be known to the attesting witnesses. 18The last paragraph of Article 805 merely requires that, in such a case, theattestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executedbefore them and to the manner of the execution the same.

19It 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 formalitiesrequired by law has been observed.

20It is made for the purpose of preserving in a permanent form a record of the facts that attended

the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts maystill be proved.

21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will,22

shouldstate (1) the number of the pages usedupon which the will is written; (2) that the testator signed, or expressly caused another to sign,the will and every page thereofin the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing bythe testator of the willand all its pages,andthat saidwitnesses also signed the willand every page thereofin the presence of thetestator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possibleinterpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages;

23whereas the subscription

of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thusindicates that the will is the very same instrument executed by the testator and attested to by the witnesses.

24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in theattestation clause.

25The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the

authenticity thereof.26

As it appertains only to the witnesses and not to the testator, it need be signed only by them.27

Where it is leftunsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion inthe absence of the testator and its witnesses.

28

In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution ofwills, in the following manner:


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The underlying and fundamental objectives permeating the provisions on the law on wills in this Project consists inthe liberalization of the manner of their execution with the end in view of giving the testator more freedom inexpressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and theexercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. . . .29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have beennumbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the threeattesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and issigned at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and islikewise signed at the end thereof by the three attesting witnesses hereto.

30Since it is the proverbial bone of contention, we reproduce

it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of ourrespective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO;has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each pagenumbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has thesame and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presenceof the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator andof one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscription is the act of thehand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the factsrequired to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper thenames of the witnesses, for the sole purpose of identification.

31

In Taboada vs. Rizal,32

we clarified that attestation consists in witnessing the testator's execution of the will in order to see and takenote mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator existsas a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identificationof such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, ofascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of eachother unless this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the thirdparagraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses thetestator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof inthe presence of the testator and of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testatorindeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages thatwere used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures tothe 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 spaces provided for his signature and on the left handmargin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Willand Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may,at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testatorsigning in the presence of the witnesses since said phrase immediately follows the words "hehas signed the same and every pagethereof, on the spaces provided forhissignature and on the left hand margin." What is then clearly lacking, in the final logical analysis ,is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarilyresult in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that theaforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the languageused therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereonin the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and

imperfections in the formof attestation or in the languageused therein shall not render the will invalid if it is notproved that the will was in fact executed and attested in substantial compliance with all the requirements of article805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the threeattesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in thepresence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes thefact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testatorand of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various daysor occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity.

33

We believe that the further comment of former Justice J.B.L. Reyes34

regarding Article 809, wherein he urged caution in the applicationof the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future caseswith similar questions:


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. . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whetherthe subscribing witnesses are three or the will was notarized. All theses are facts that the will itself can reveal, anddefects or even omissions concerning them in the attestation clause can be safely disregarded. But the total numberof pages, and whether all persons required to sign did so in the presence of each other must substantially appear inthe attestation clause, being the only check against perjury in the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation orthe language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was reallyexecuted and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestationhas been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed eachand every page of the will in the presence of the testator and of each other.

35In such a situation, the defect is not only in the form or

language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in theattestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which wecan read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witnessto the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every pagethereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since it presupposes thatthe defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefromwhich would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred thatthe acts not stated in the omitted textual requirements were actually complied within the execution of the will. In other words, defectsmust be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only

extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts maybe plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliancewith such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove thesame and would accordingly be doing by the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretationshould be followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. The formalrequirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was lateramended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment thereto werepractically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case ofAbangan vs. Abangan,36

where itwas held that the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoidsubstitution of wills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should beinterpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that one must not lose sight of thefact that it is not the object of the law to restrain and curtail the exercise of the right to make a will, hence when an interpretation already

given assures such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary,useless and frustrative of the testator's last will, must be disregarded. The subsequent cases ofAvera vs. Garcia,

37Aldaba vs.

Roque,38

Unson vs. Abella,39

Pecson vs. Coronel,40

Fernandez vs. Vergel de Dios, et al.,41

and Nayve vs. Mojal, et al.42

all adhered tothis position.

The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the execution of willsare mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate ofSaguinsin,

43In re Will of Andrada,

44Uy Coque vs. Sioca,

45In re Estate of Neumark,

46and Sano vs. Quintana.

47

Gumban vs. Gorecho, et al.,48

provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementionedcases. In said case ofGumban, the attestation clause had failed to state that the witnesses signed the will and each and every pagethereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of thiscourt beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In reWill ofAndrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In reEstate of Neumark

([1923], 46 Phil., 841), and ending with Sano vs. Quintana([1925], 48 Phil., 506). Appellee counters with the citationof a series of cases beginning withAbangan vs. Abangan([1919], 40 Phil., 476), continuing through Aldaba vs.Roque([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios([1924], 46 Phil., 922), and culminating in Nayve vs.Mojal and Aguilar([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the lasttwo decisions cited by opposing counsel, namely, those ofSano vs. Quintana,supra, and Nayve vs. Mojal andAguilar, supra.

In the case ofSano vs. Quintana, supra, it was decided that an attestation clause which does not recite that thewitnesses signed the will and each and every page thereof on the left margin in the presence of the testator isdefective, and such a defect annuls the will. The case ofUy Coque vs. Sioca, supra, was cited, but the case ofNayvevs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,wherein it was held that the attestation clause must estate the fact that the testator and the witnesses reciprocallysaw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not statedtherein. It was also held that the fact that the testator and the witnesses signed each and every page of the will can


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be proved also by the mere examination of the signatures appearing on the document itself, and the omission to statesuch evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yethere, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. Ifwe rely on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, theMojal, decision was concurred in by only four members of the court, less than a majority, with two strong dissentingopinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formaldissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decisionwas promulgated in December, 1925; the Quintana decision was thus subsequent in point of time. And in the thirdplace, the Quintana decision is believed more nearly to conform to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. Itis in part provided in section 61, as amended that "No will. . . shall be valid. . . unless. . .." It is further provided inthe same section that "The attestation shallstate the number of sheets or pages used, upon which the will is written,and the fact that the testator signed the will and every page thereof, or caused some other person to write his name,under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and allpages thereof in the presence of the testator and of each other." Codal section 634 provides that "The will shallbedisallowed in either of the following case: 1. Ifnotexecuted and attestedas in this Act provided." The law not alonecarefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforcelegislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically andclearly expressed.

We adopt and reaffirm the decision in the case ofSano vs. Quintana, supra, and, to the extent necessary, modify the

decision in the case ofNayve vs. Mojal and Aguilar, supra. (Emphases in the original text).But after the Gumbanclarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seemingdiversity of views that was earlier threshed out therein. The cases ofQuinto vs. Morata,

49Rodriguez vs. Alcala,

50Enchevarria vs.

Sarmiento,51

and Testate Estate of Toray52

went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,53

Reyvs. Cartagena,

54De Ticson vs. De Gorostiza,

55Sebastian vs. Panganiban,

56Rodriguez vs. Yap,

57Grey vs. Fabia,

58Leynez vs.

Leynez,59

Martir vs. Martir,60

Alcala vs. De Villa,61

Sabado vs.Fernandez,

62Mendoza vs. Pilapil,

63and Lopez vs. Liboro,

64veered away from the strict interpretation rule and established a trend

toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal construction,recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency togive a liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with thisexplanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in accordance with the formalities

prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of thePhilippines had previously upheld the strict compliance with the legal formalities and had even said that theprovisions of Section 618 of the Code of Civil Procedure, as amended regarding the contents of the attestation clausewere mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). Thesedecisions necessarily restrained the freedom of the testator in disposing of his property.

However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation ofthe formalities in the execution of wills. This liberal view is enunciated in the cases ofRodriguez vs. Yap, G.R. No.45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions ofSection 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn thisattitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of themanner of executing wills, article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure andinfluence, defects and imperfections in the form of attestation or in the language used therein shallnot render the will invalid if it is proved that the will was in fact executed and attested in substantialcompliance with all the requirements of article 829."

65

The so-called liberal rule, the Court said in Gil vs. Murciano,66

"does not offer any puzzle or difficulty, nor does it open the door toserious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do notallow evidence aliundeto fill a void in any part of the document or supply missing details that should appear in the will itself. They onlypermit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of therequisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, withoutthe need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the willbeing assailed. However, those omissions which cannot be supplied except by evidence aliundewould result in the invalidation of theattestation clause and ultimately, of the will itself.

67


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WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SETASIDE. The court a quois accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of theLast Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate ofMateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent.

SO ORDERED.

FIRST DIVISION

G.R. No. 76648 February 26, 1988

THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners,vs.COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals1

promulgated August 29,1986 affirming in toto thedecision of the Regional Trial Court of Manila, Branch XXII

2dated March 21, 1985, the dispositive part of which reads:

WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as onewholly written, dated, and signed freely by the late Herminia Montinola in accordance with law while in possession offull testamentary capacity, and allowing and admitting the same to probate.

Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as well as thecertificate of probate prescribed under Section 13 of Rule 76 of the Rules of Court.

SO ORDERED.3

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of FirstInstance of Manila (now Regional Trial Court) seeking the probate of the holographic will of the late Herminia Montinola executed onJanuary 28, 1980.

4The testatrix, who died single, parentless and childless on March 29,1981 at the age of 70 years, devised in this wil

several of her real properties to specified persons.

On April 29,1981, private respondent who was named executor in the will filed an urgent motion for appointment of specialadministrator.

5With the conformity of all the relatives and heirs of the testatrix except oppositor, the court in its order of May 5,

19816

appointed private respondent as Special Administrator of the testate estate of deceased.

On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in the saidwin, filed her Opposition to Probate of Will,

7alleging inter alia: that the subject will was not entirely written, dated and signed by the

testatrix herself and the same was falsely dated or antedated; that the testatrix was not in full possession of her mental faculties tomake testamentary dispositions; that undue influence was exerted upon the person and mind of the testatrix by the beneficiaries namedin the win; and that the will failed to institute a residual heir to the remainder of the estate.

After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to be conclusive andoverwhelming, rendered its decision allowing the probate of the disputed will.

Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in totothe decision.8

On September 24,1986, petitioner filed with the respondent court a motion for new trial.9

Attached to her motion was the Affidavit ofMerit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have been located whose testimonies could shed light asto the ill health of the testatrix as well as undue influence exerted on the latter.

The appellate court in its resolution of October 13, 1986,10

denied the motion for new trial of petitioner on the following grounds: (1) theAffidavit of merit attached to the motion alleged that efforts were exerted to locate unnamed witnesses only after the court's decisionwas handed down, and (2) the unnamed witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as theundue influence exerted on her which are merely corroborative or cumulative since these facts were brought to light during the trial.

The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the appellate court in its resolution ofNovember 20, 1986

12on the ground that the affidavit of one Patricia Delgado submitted with the motion constitutes cumulative

evidence and the motion being in reality a second motion for reconsideration which is prescribed by law.

In the petition now before Us, petitioner assigned the following errors:

I

THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ONTHE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE.

II

THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THERESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL.


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III

AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WASWHOLLY WRITTEN, DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA.

IV

THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TOCONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THETESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUALEXECUTION.

VTHE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TOUNDUE PRESSURE AND IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFITFROM THE ALLEGED WILL.

VI

THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE.

In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.

In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial insistingthat the new evidence sought to be presented is not merely corroborative or cumulative.

On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma motion because it was not inaccordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention.

Section 1, Rule 53 provides Before a final order or judgment rendered by the Court of appeals becomes executory, a motion for new trial may befiled on the ground of newly discovered evidence which could not have been discovered prior to the trial in the courtbelow by the exercise of the diligence and which is of such a character as would probably change the result. Themotion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newlydiscovered evidence.

The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:

xxx xxx xxx

3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts werenot known to us during the trial in the lower court, but I have finally succeeded in tracking them down;

4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under propersubpoena for purposes of shedding light on the fact that the testatrix was gravely ill at or but the time that the

questioned will was allegedly executed;

5. That they had the clear opportunity to know the circumstances under which the purported will was executed; andthat they know for a fact that there was 'undue influence' exerted by petitioner and other relatives to procure improperfavors from the testatrix;

xxx xxx xxx13

Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who wasalready presented said the hearing is hardly sufficient to justify the holding of new trial. The alleged new witnesses were unnamedwithout any certainty as, to their appearance before the court to testify. Affiant attests only on his belief that they would testify if andwhen they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrixare mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions,otherwise they are not valid.

14The affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out

to be immaterial or of any evidentiary weight.

Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is apparentfrom the allegations of affiant that efforts to locate the witnesses were exerted only after the decision of the appellate court was handeddown. The trial lasted for about four years so that petitioner had ample time to find said alleged witnesses who were admittedly knownto her. The evidence which the petitioner now propose to present could have been discovered and presented during the hearing of thecase, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not have been able todiscover said evidence.

15

In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue influenceexerted upon her had been brought to light during the trial, and new evidence on this point is merely corroborative and cumulativewhich is generally not a ground for new trial.

16Accordingly, such evidence even if presented win not carry much probative weight which

can alter the judgment.17

It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact, petitionersson in his manifestation admitted that he had to request a new law firm to do everything legally possible to meet the deadline for thefiling of a motion for reconsideration and/or for new trial.

18This would explain the haphazard preparation of the motion, thus failing to


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comply with the requirements of rule 53, which was filed on the last day of the reglementary period of appeal so that the veracity of theground relied upon is questionable. The appellate court correctly denied the motion for new trial.

The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal.19

Since petitioner's motion was filedon September 24,1986, the fifteenth or last day of the period to appeal, the decision of the respondent court became final on thefollowing day, September 25. And when the motion for reconsideration of petitioner was filed on October 30,1986, it was obviously filedout of time.

Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. Thisbeing so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix are nowconclusive.

20

At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail.

During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2) expertwitnesses who declared that the contested will and signature are in the handwriting of the testatrix. These testimonies more than satisfythe requirements of Art. 811 of the Civil Code

21in conjunction with Section 11 of Rule 76, Revised Rules of Court,

22or the probate of

holographic wills.

As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed sometime inJune 1980 when the testatrix was already seriously ill and dying of terminal lung cancer. She relied only on the supposedinconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination didnot prove such claim of antedating.

The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the formalitiesrequired by law are conclusive on the Supreme Court when supported by evidence.

23We have examined the records of this case and

find no error in the conclusion arrived at by the respondent court that the contested will was duly executed in accordance with law.

Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of thetestatrix with whom she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix.

In the case of Pecson v. Coronel,24

it was held

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of arelative from one's estate is an exceptional case. It is true that the ties of relationship in the Philippines are verystrong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to disposeof one's estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippinessince 1889...

Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of all his estate or any part of it in favorof any person having capacity to succeed.

It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony ofAsuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore, petitioner's son Franciswas instituted as an heir in the contested will.

Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate is an indication of theunsoundness of her mind.

We cannot subscribe to this contention. Art. 841 of the Civil Code provides

A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprisethe entire estate, and even though the person so instituted should not accept the inheritance or should beincapacitated to succeed.

In such cases, the testamentary dispositions made in accordance with law shall be complied with and the remainderof the estate shall pass to the legal heirs.

Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the will, or is itan indication that the testatrix was of unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the deceasedin intestate succession.

Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while blood ties arestrong in the Philippines, it is the testator's right to disregard non-compulsory heirs.25

The fact that some heirs are more favored thanothers is proof of neither fraud or undue influence.

26Diversity of apportionment is the usual reason for making a testament, otherwise,

the decedent might as well die intestate.27

The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the beneficiaries of thewill cannot be sustained on mere conjecture or suspicion; as it is not enough that there was opportunity to exercise undue influence or apossibility that it may have been exercised.

28The exercise of improper pressure and undue influence must be supported by substantial

evidence that it was actually exercised.29

Finally, We quote with approval the observation of the respondent court

There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof thatdecreased had testamentary capacity at the time of the execution of the Will, is the Will itself which according to a


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report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handwritingcharacteristics such as:

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

4. presence of natural variation... (Exhibit X).

The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it was truethat she was indeed of unsound mind and/or under undue influence or improper pressure when she the Will.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The decisionof respondent court dated August 29, 1986 in toto the decision of the Regional Trial Court of Manila dated March 21, 1985 is herebydeclared to be immediately executory.

SO ORDERED.

EN BANC

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, Petitioner, vs. HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA

A. FERNANDEZ and ROSA DIONGSON, Respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744 promulgated onAugust 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issuedon October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region, Branch XIII (CebuCity), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109)are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of thewill of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No.591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores andJose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain onFebruary 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner withoutobjection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of acertain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife RosaDiongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-CSanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there inBantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino,Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the

petitioner in Special Proceedings No. 591 ACEBAfter the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, alegally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the followinggrounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow andthe adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition focertiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolutionof the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for theprobate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision onDecember 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).


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On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed onSeptember 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under thepremises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannotpass upon the intrinsic validity thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New

Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private respondents who are notcompulsory heirs in the direct line; their omission shall not annul the institution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in the will wouldgive the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, explicitlyexpressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of thewill of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of theexecution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees and legacies shall be validinsofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right ofrepresentation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentionedtherein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450[1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may notapply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the survivingspouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854,Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testatorhas not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Childand Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of theadopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the

will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that theywere not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including " laporcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devisesmade in the will for they should stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totallyabrogating the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers noleeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the wholeproperty of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institutionof heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devisesmust, as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interestiii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested partyis one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v.Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in thetestamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, CivilCode). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person calledto the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition ofrespondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standingto petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicialauthority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court ofAppeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari andprohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the


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3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp.224-225) (Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Codein which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited. Statedotherwise. the nullity is partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heirat the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit acompulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate. (III Tolentino, CivilCode, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrencein the result that total intestacy ensued.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake orinadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterirton and total intestacy results. The reasonfor this is the "inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten(An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp.224-225) (Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Codein which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited. Statedotherwise. the nullity is partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heirat the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit acompulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate. (III Tolentino, CivilCode, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrencein the result that total intestacy ensued.

THIRD DIVISION

[G.R. No. 137287. February 15, 2000]

REBECCA VIADO NON, JOSE A. NON and DELIA VIADO, petitioners, vs. THE HONORABLE COURT OF APPEALS, ALICIA N.VIADO, CHERRI VIADO and FE FIDES VIADO, respondents. LEX

D E C I S I O N

VITUG, J.:

Petitioners, in their petition for review on certiorariunder Rule 45 of the Rules of Court, seek a reversal of the 29th May 1996 decisionof the Court of Appeals, basically affirming that rendered on 30 April 1991 by the Regional Trial Court ("RTC") of Quezon City, Branch23, adjudicating the property subject matter of the litigation to respondents. The case and the factual setting found by the Court ofAppeals do not appear to deviate significantly from that made by the trial court.

During their lifetime, the spouses Julian C. Viado and Virginia P. Viado owned several pieces of property, among them a house and lotlocated at 147 Isarog Street, La Loma, Quezon City, covered by Transfer Certificate of Title No. 42682. Virginia P. Viado died on 20October 1982. Julian C. Viado died three years later on 15 November 1985. Surviving them were their children -- Nilo Viado, LeahViado Jacobs, and herein petitioners Rebecca Viado, married to Jose Non, and Delia Viado. Nilo Viado and Leah Viado Jacobs bothdied on 22 April 1987. Nilo Viado left behind as his own sole heirs herein respondents --- his wife Alicia Viado and their two childrenCherri Viado and Fe Fides Viado.


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Petitioners and respondents shared, since 1977, a common residence at the Isarog property. Soon, however, tension would appear tohave escalated between petitioner Rebecca Viado and respondent Alicia Viado after the former had asked that the property be equallydivided between the two families to make room for the growing children. Respondents, forthwith, claimed absolute ownership over theentire property and demanded that petitioners vacate the portion occupied by the latter. On 01 February 1988, petitioners, asserting co-ownership over the property in question, filed a case for partition before the Quezon City RTC (Branch 93).

Respondents predicated their claim of absolute ownership over the subject property on two documents --- a deed of donation executedby the late Julian Viado covering his one-half conjugal share of the Isarog property in favor of Nilo Viado and a deed of extrajudicialsettlement in which Julian Viado, Leah Viado Jacobs (through a power of attorney in favor of Nilo Viado) and petitioner Rebecca Viadowaived in favor of Nilo Viado their rights and interests over their share of the property inherited from Virginia Viado. Both instrumentswere executed on 26 August 1983 and registered on 07 January 1988 by virtue of which Transfer Certificate of Title No. 42682 was

cancelled and new Transfer Certificate of Title No. 373646 was issued to the heirs of Nilo Viado.Petitioners, in their action for partition, attacked the validity of the foregoing instruments, contending that the late Nilo Viado employedforgery and undue influence to coerce Julian Viado to execute the deed of donation. Petitioner Rebecca Viado, in her particular case,averred that her brother Nilo Viado employed fraud to procure her signature to the deed of extrajudicial settlement. She added that theexclusion of her retardate sister, Delia Viado, in the extrajudicial settlement, resulted in the latter's preterition that should warrant itsannulment. Finally, petitioners asseverated at the assailed instruments, although executed on 23 August 1983, were registered only fiveyears later, on 07 January 1988, when the three parties thereto, namely, Julian Viado, Nilo Viado and Leah Viado Jacobs had alreadydied.

Assessing the evidence before it, the trial court found for respondents and adjudged Alicia Viado and her children as being the trueowners of the disputed property.

On appeal, the Court of Appeals affirmed the decision of the trial court with modification by ordering the remand of the records of thecase to the court a quofor further proceedings to determine the value of the property and the amount respondents should pay topetitioner Delia Viado for having been preterited in the deed of extrajudicial settlement.

Petitioners are now before the Supreme Court to seek the reversal of the decision of the Court of Appeals.

The appellate court ruled correctly.

When Virginia P. Viado died intestate in 1982, her part of the conjugal pr

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