The document discusses a probate case involving the will of Paciencia Regala, which was contested by several petitioners arguing that she was not of sound mind when executing it. The Court of Appeals reversed a previous decision by the Regional Trial Court that denied the will's probate, stating that the petitioners did not provide sufficient evidence to prove Paciencia's lack of mental capacity. Ultimately, the case highlights the legal standards for proving the validity of a will and the burden of proof required in probate disputes.

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https://www.homeworkping.com/G.R. No.
174489 April 11, 2012
ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L.
MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO
REGALA, JR., and RAFAEL TITCO, Petitioners,
vs.
LORENZO LAXA, Respondent.
D E C I S I O N
DEL CASTILLO, J.:
It is incumbent upon those w ho opposethe probate of a w ill toclearly
establish that the decedent w as not of sound and disposing mind at
the time of the execution of said w ill. Otherw ise, the state is duty -
bound to give full effect to the w ishes of the testator to distribute his
estate in the manner provided in his w ill so long as it is legally tenable.1
Before us is a Petition for Review on Certiorari2 of the June 15, 2006
Decision3 of the Court of Appeals (CA) in CA-G.R. CV No. 80979 w hich
reversed the September 30,2003 Decision4 of the Regional Trial Court
(RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-
1186. The assailed CA Decision granted the petition for probate of the
notarial w ill of Paciencia Regala (Paciencia), to w it:
WHEREFORE, premises considered,finding the appeal to be impressed
w ith merit,the decision in SP. PROC. NO. G-1186 dated 30 September
2003, is hereby SET ASIDE and a new one entered GRANTING the
petition for the probate of the w ill of PACIENCIA REGALA.
SO ORDERED.5
Also assailed herein is the August 31, 2006 CA Resolution6 w hich
denied the M otion for Reconsideration thereto.
Petitioners call us to reverse the CA’s assailed Decision and instead
affirm the Decision of the RTC w hich disallow ed the notarial w ill of
Paciencia.
Factual Antecedents
Paciencia w as a 78 year old spinster w hen she made her last w ill and
testament entitled "Tauli Nang Bilin o Testamento M iss Paciencia
Regala"7 (Will) in the Pampango dialect on September 13, 1981. The
Will, executed in the house of retired Judge Ernestino G. Limpin (Judge
Limpin), w as read to Paciencia tw ice. After w hich, Paciencia
expressed in the presence of the instrumental w itnesses that the
document is her last w ill and testament. She thereafter affixed her
signature at the end of the said document on page 38 and then on
the left margin of pages 1, 2 and 4 thereof.9
The w itnesses to the Will wereDra. M aria Lioba A. Limpin (Dra. Limpin),
Francisco Garcia (Francisco) and Faustino R. M ercado (Faustino). The
three attested to the Will’s due execution by affixing their signatures
below its attestation clause10and on the left margin of pages 1, 2 and
4 thereof,11 in the presence of Paciencia and of one another and of
Judge Limpin w ho acted as notary public.
Childless and w ithout any brothers or sisters,Paciencia bequeathed all
her properties to respondent Lorenzo R. Laxa (Lorenzo) and his w ife
Corazon F. Laxa and their children Luna Lorella Laxa and Katherine
Ross Laxa, thus:
x x x x
Fourth - In consideration of their valuable services to me since then up
to the present by the spouses LORENZO LAXA and CORAZON F. LAXA, I
hereby BEQUEATH,CONVEY and GIVE all my properties enumeratedin
parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F.
LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA,
and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal
age, Filipinos, presently residing at Barrio Sta. M onica, [Sasmuan],
Pampanga and their children, LUNA LORELLA and KATHERINE ROSS
LAXA, w ho are still not of legal age and living w ith their parents w ho
w ould decide to bequeath since they are the children of the spouses;
x x x x
[Sixth] - Should other properties of mine may be discovered aside from
the properties mentioned in this last w ill and testament, I am also
bequeathing and giving the same to the spouses Lorenzo R. Laxa and
Corazon F. Laxa and their two children and I also command them to
offer masses yearly for the repose of my soul and that of D[ñ]a
Nicomeda Regala, Epifania Regala and their spouses and w ith
respect to the fishpond situated at San Antonio, I likew ise command
to fulfill the w ishes of D[ñ]a Nicomeda Regala in accordance w ith her
testament as stated in my testament. x x x 12
The filial relationship of Lorenzo w ith Paciencia remains undisputed.
Lorenzo is Paciencia’s nephew w hom she treated as her ow n son.
Conversely,Lorenzo came to know and treated Paciencia as his ow n
mother.13 Paciencia lived w ith Lorenzo’s family in Sasmuan,
Pampanga and it w as she w ho raised and cared for Lorenzo since his
birth. Six days after the execution of the Will or on September 19, 1981,
Paciencia left for the United States of America (USA). There, she
resided w ith Lorenzo and his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
M ore than four years after the death of Paciencia or on April 27, 2000,
Lorenzo filed a petition14 w ith the RTC of Guagua, Pampanga for the
probate of the Will of Paciencia and for the issuance of Letters of
Administration in his favor, docketed as Special Proceedings No. G-
1186.
There being no opposition to the petition after its due publication, the
RTC issued an Order on June 13, 200015 allow ing Lorenzo to present
evidence on June 22, 2000. On said date,Dra. Limpin testified that she
w as one of the instrumental witnesses in the execution of the last w ill
and testament of Paciencia on September 13, 1981.16 The Will w as
executed in her father’s (Judge Limpin) home office, in her presence
and of tw o other w itnesses, Francisco and Faustino.17 Dra. Limpin
positively identified the Will and her signatures on all its four

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pages.18 She likew ise positively identified the signature of her father
appearing thereon.19 Questioned by the prosecutor regarding Judge
Limpin’s present mental fitness,Dra. Limpin testified that her father had
a stroke in 1991 and had to undergo brain surgery.20 The judge can
w alk but can no longer talk and remember her name. Because of this,
Dra. Limpin stated that her father can no longer testify in court.21
The follow ing day or on June 23, 2000, petitioner Antonio Baltazar
(Antonio) filed an opposition22 to Lorenzo’s petition. Antonio averred
that the properties subject of Paciencia’s Will belong to Nicomeda
Regala M angalindan, his predecessor-in-interest; hence, Paciencia
had no right to bequeath them to Lorenzo.23
Barely a month after or on July 20, 2000, Antonio, now joined by
petitioners Sebastian M . Baltazar, Virgilio Regala, Jr., Nenita A.
Pacheco, Felix B. Flores, Rafael Titco, Rosie M . M ateo (Rosie) and
Antonio L. M angalindan filed a Supplemental
Opposition24 contending that Paciencia’s Will w as null and void
because ow nership of the properties had not been transferred and/or
titled to Paciencia before her death pursuant to Article 1049,
paragraph 3 of the Civil Code.25 Petitioners also opposed the issuance
of Letters of Administration in Lorenzo’s favor arguing that Lorenzow as
disqualified to be appointed as such, he being a citizen and resident
of the USA.26 Petitioners prayed that Letters of Administration be
instead issued in favor of Antonio.27
Later still on September 26, 2000, petitioners filed an Amended
Opposition28 asking the RTC to deny the probateof Paciencia’s Will on
the follow ing grounds: the Will w as not executed and attested to in
accordance w ith the requirements of the law ; that Paciencia w as
mentally incapable to make a Will at the time of its execution;that she
w as forced to execute the Will under duress or influence of fear or
threats; that the execution of the Will had been procured by undue
and improper pressure and influence by Lorenzo or by some other
persons for his benefit;that the signature of Paciencia on the Will w as
forged; that assuming the signature to be genuine, it w as obtained
through fraud or trickery; and, that Paciencia did not intend the
document to be her Will. Simultaneously, petitioners filed an
Opposition and Recommendation29 reiterating their opposition to the
appointment of Lorenzo as administrator of the properties and
requesting for the appointment of Antonio in his stead.
On January 29,2001, the RTC issued an Order30 denying the requests
of both Lorenzo and Antonio to be appointed administrator since the
former is a citizen and resident of the USA w hile the latter’s claim as a
co-ow ner of the properties subject of the Will has not yet been
established.
M eanw hile, proceedings on the petition for the probate of the Will
continued. Dra. Limpin w as recalled for cross-examination by the
petitioners. She testified as to the age of her father at the time the
latter notarized the Will of Paciencia; the living arrangements of
Paciencia at the time of the execution of the Will; and the lack of
photographs w hen the event took place. 31
Aside from Dra. Limpin, Lorenzo and M onico M ercado (M onico) also
took the w itness stand. Monico,son of Faustino,testified on his father’s
condition. According to him his father can no longer talk and express
himself due to brain damage. A medical certificate w as presented to
the court to support this allegation. 32
For his part, Lorenzo testified that: from 1944 until his departure for the
USA in April 1980,he lived in Sasmuan, Pampanga w ith his family and
his aunt, Paciencia; in 1981 Paciencia w ent to the USA and lived w ith
him and his family until her death in January 1996; the relationship
betw een him and Paciencia w as like that of a mother and child since
Paciencia took care of him since birth and took him in as an adopted
son; Paciencia w as a spinster w ithout children, and w ithout brothers
and sisters; at the time of Paciencia’s death, she did not suffer from
any mental disorder and w as of sound mind, w as not blind, deaf or
mute;the Will w as in the custody of Judge Limpin and w as only given
to him after Paciencia’s death through Faustino; and he w as already
residing in the USA w hen the Will w as executed.33 Lorenzo positively
identified the signature of Paciencia in three different documents and
in the Will itself and stated that he w as familiar w ith Paciencia’s
signature because he accompanied her in her transactions.34 Further,
Lorenzo belied and denied having used force, intimidation, violence,
coercion or trickery upon Paciencia to execute theWill as he w as not
in the Philippines w hen the same w as executed.35 On cross-
examination,Lorenzo clarified that Paciencia informed him about the
Will shortly after her arrival in the USA but that he saw a copy of the Will
only after her death.36
As to Francisco, he could no longer be presented in court as he
already died on M ay 21, 2000.
For petitioners,Rosie testified that her mother and Paciencia w ere first
cousins.37 She claimed to have helped in the household chores in the
house of Paciencia thereby allowing her to stay therein from morning
until evening and that during the period of her service in the said
household, Lorenzo’s w ife and his children w ere staying in the same
house.38 She served in the said household from 1980 until Paciencia’s
departure for the USA on September 19, 1981.39
On September 13, 1981, Rosie claimed that she saw Faustino bring
"something" for Paciencia to sign at the latter’s house.40 Rosie
admitted,though,that she did not see w hat that "something" w as as
same w as placed inside an envelope.41 How ever, she remembered
Paciencia instructing Faustino to first look for money before she signs
them.42 A few days after or on September 16,1981,Paciencia w ent to
the house of Antonio’s mother and brought w ith her the said
envelope.43 Upon going home,however,the envelope was no longer
w ith Paciencia.44 Rosie further testified that Paciencia w as referred to
as "magulyan" or "forgetful" because she w ould sometimes leave her
w allet in the kitchen then start looking for it moments later.45 On cross
examination,it w as established that Rosie w as neither a doctor nor a
psychiatrist, that her conclusion that Paciencia w as "magulyan" w as
based on her personal assessment,46 and that it w as Antonio w ho
requested her to testify in court.47
In his direct examination, Antonio stated that Paciencia w as his
aunt.48 He identified the Will and testified that he had seen the said
document before because Paciencia brought the same to his
mother’s house and show ed it to him along w ith another document
on September 16,1981.49 Antonio alleged that w hen the documents
w ere shown to him,the same w ere still unsigned.50 According to him,
Paciencia thought that the documents pertained to a lease of one of
her rice lands,51 and it w as he w ho explained that the documents
w ere actually a special pow er of attorney to lease and sell her
fishpond and other properties upon her departure for the USA, and a
Will w hich w ould transfer her properties to Lorenzo and his family upon
her death.52 Upon hearing this, Paciencia allegedly uttered the
follow ing w ords: "Why w ill I never [return], w hy w ill I sell all my
properties?" Who is Lorenzo? Is he the only [son] of God? I have other
relatives [w ho should] benefit from my properties. Why should I die
already?"53 Thereafter, Antonio advised Paciencia not to sign the
documents if she does not w ant to, to w hich the latter purportedly
replied, "I know nothing about those, throw them aw ay or it is up to
you. The more I w ill not sign them."54 After w hich, Paciencia left the
documents w ith Antonio. Antonio kept the unsigned documents
and eventually turned them over to Faustinoon September 18,1981.55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision56 denying the
petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24,
2000;and (b) disallow s the notarized will dated September 13, 1981 of
Paciencia Regala.

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SO ORDERED.57
The trial court gave considerable w eight tothe testimony of Rosie and
concluded that at the time Paciencia signed the Will, she w as no
longer possessed of sufficient reason or strength of mind to have
testamentary capacity.58
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the
probate of the Will of Paciencia. The appellate court did not agree
w ith the RTC’s conclusion that Paciencia w as of unsound mind w hen
she executed the Will. It ratiocinated that "the state of being
‘magulyan’ does not make a person mentally unsound so [as] to
render [Paciencia] unfit for executing a Will."59 M oreover, the
oppositors in the probate proceedings werenot able to overcome the
presumption that every person is of sound mind. Further, no concrete
circumstances or events w ere given to prove the allegation that
Paciencia w as tricked or forced into signing the Will.60
Petitioners moved for reconsideration61 but the motion was denied by
the CA in its Resolution62 dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by w ay of Petition for Review on
Certiorari ascribing upon the CA the follow ing errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED
WHEN IT ALLOWED THE PROBATE OF PACIENCIA’S WILL
DESPITE RESPONDENT’S UTTER FAILURE TO COM PLY WITH
SECTION 11, RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
M AKING CONCLUSIONS NOT IN ACCORDANCE WITH THE
EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
RULING THAT PETITIONERS FAILED TO PROVE THAT PACIENCIA
WAS NOT OF SOUND M IND AT THE TIM E THE WILL WAS
ALLEGEDLY EXECUTED63
The pivotal issue is w hether the authenticity and due execution of the
notarial Will w as sufficiently established to w arrant its allow ance for
probate.
Our Ruling
We deny the petition.
Faithful compliance w ith the formalities laid dow n by law is apparent
from the face of the Will.
Courts are tasked to determinenothing morethan the extrinsic validity
of a Will in probate proceedings.64 This is expressly provided for in Rule
75, Section 1 of the Rules of Court, w hich states:
Rule 75
Production of Will. Allow ance of Will Necessary.
Section 1. Allow ance necessary. Conclusive as to execution. – No w ill
shall pass either real or personal estate unless it is proved and allow ed
in the proper court. Subject to the right of appeal, such allow ance of
the w ill shall be conclusive as to its due execution.
Due execution of the w ill or its extrinsic validity pertains to whether the
testator,being of sound mind,freely executed the w ill in accordance
w ith the formalities prescribed by law.65 These formalities are enshrined
in Articles 805 and 806 of the New Civil Code, to w it:
Art. 805. Every w ill,other than a holographic w ill,must be subscribed at
the end thereof by the testator himself or by the testator's name
w ritten by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
w itnesses 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 w itnesses of the w ill, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall statethe number of pages used upon w hich the
w ill is w ritten,and the fact that the testator signed the w ill and every
page thereof,or caused some other person to w rite his name, under
his express direction,in the presence of the instrumental w itnesses,and
that the latter witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another.
If the attestation clause is in a language not know n to the witnesses, it
shall be interpreted to them.
Art. 806. Every w ill must be acknow ledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the w ill, or file another w ith the Office of the Clerk
of Court.
Here, a careful examination of the face of the Will show s faithful
compliance w ith the formalities laid dow n by law . The signatures of
the testatrix, Paciencia, her instrumental w itnesses and the notary
public, are all present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the testatrix and
her instrumental w itnesses signed the Will in the presence of one
another and that the w itnesses attested and subscribed to the Will in
the presence of the testator and of one another. In fact, even the
petitioners acceded that the signature of Paciencia in the Will may be
authentic although they question her state of mind w hen she signed
the same as w ell as the voluntary nature of said act.
The burden to prove that Paciencia w as of unsound mind at the time
of the execution of the w ill lies on the shoulders of the petitioners.
Petitioners, through their w itness Rosie, claim that Paciencia w as
"magulyan" or forgetful so much so that it effectively stripped her of
testamentary capacity. They likew ise claimed in their M otion for
Reconsideration66 filed w ith the CA that Paciencia w as not only
"magulyan" but w as actually suffering from paranoia.67
We are not convinced.
We agree w ith the position of the CA that the state of being forgetful
does not necessarily make a person mentally unsound so as to render
him unfit to execute a Will.68 Forgetfulness is not equivalent to being of
unsound mind. Besides, Article 799 of the New Civil Code states:

4. 4
Art. 799. To be of sound mind, it is not necessary that the testator be in
full possession of all his reasoning faculties, or that his mind be w holly
unbroken, unimpaired, or unshattered by disease, injury or other
cause.
It shall be sufficient if the testator w as able at the time of making the
w ill to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.
In this case, apart from the testimony of Rosie pertaining to
Paciencia’s forgetfulness,there is no substantial evidence, medical or
otherw ise, that w ould show that Paciencia w as of unsound mind at
the time of the execution of the Will. On the other hand,w e find more
w orthy of credence Dra. Limpin’s testimony as to the soundness of
mind of Paciencia w hen the latter went to Judge Limpin’s house and
voluntarily executed the Will. "Thetestimony of subscribing w itnesses to
a Will concerning the testator’s mental condition is entitled to great
w eight wherethey are truthful and intelligent."69 M ore importantly, a
testator is presumedto be of sound mind at the time of the execution
of the Will and the burden to prove otherw ise lies on the oppositor.
Article 800 of the New Civil Code states:
Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The burden of proof that the testator w as not of sound mind at the
time of making his dispositions is on the person w ho opposes the
probate of the w ill; but if the testator, one month, or less, before
making his w ill w as publicly know n to be insane, the person w ho
maintains the validity of the will must prove that the testator made it
during a lucid interval.
Here,there w as no show ing that Paciencia w as publicly know n to be
insane one month or less before the making of the Will. Clearly, thus,
the burden to prove that Paciencia w as of unsound mind lies upon
the shoulders of petitioners. How ever and as earlier mentioned, no
substantial evidence w as presented by them to prove the same,
thereby w arranting the CA’s finding that petitioners failed to
discharge such burden.
Furthermore, w e are convinced that Paciencia w as aw are of the
nature of her estate to be disposed of, the proper objects of her
bounty and the character of the testamentary act. As aptly pointed
out by the CA:
A scrutiny of the Will discloses that [Paciencia] w as aw are of the
nature of the document she executed. She specially requested that
the customs of her faith be observed upon her death. She w as w ell
aw are of how she acquired the properties from her parents and the
properties she is bequeathing to LORENZO, to his w ife CORAZON and
to his tw o (2) children. A third child w as born after the execution of the
w ill and w as not included therein as devisee.70
Bare allegations of duress or influence of fear or threats, undue and
improper influence and pressure, fraud and trickery cannot be used
as basis to deny the probate of a w ill.
An essential element of the validity of the Will is the w illingness of the
testator or testatrix to execute the document that will distribute his/her
earthly possessions upon his/her death. Petitioners claim that
Paciencia w as forced to execute the Will under duress or influence of
fear or threats; that the execution of the Will had been procured by
undue and improper pressure and influence by Lorenzo or by some
other persons for his benefit; and that assuming Paciencia’s signature
to be genuine, it w as obtained through fraud or trickery. These are
grounded on the alleged conversation betw een Paciencia and
Antonio on September 16, 1981 w herein the former purportedly
repudiated the Will and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved
and treated Lorenzo as her ow n son and that love even extended to
Lorenzo’s w ife and children. This kind of relationship is not unusual. It is
in fact not unheard of in our culture for old maids or spinsters to care
for and raise their nephew s and nieces and treat them as their ow n
children. Such is a prevalent and accepted cultural practice that has
resulted in many family discords betw een those favored by the
testamentary disposition of a testator and those who stand to benefit
in case of intestacy.
In this case, evidence show s theacknowledged fact that Paciencia’s
relationship w ith Lorenzo and his family is different from her relationship
w ith petitioners. The very fact that she cared for and raised Lorenzo
and lived w ith him both here and abroad, even if the latter w as
already married and already has children, highlights the special bond
betw een them. This unquestioned relationship betw een Paciencia
and the devisees tends to support the authenticity of the said
document as against petitioners’ allegations of duress, influence of
fear or threats, undue and improper influence, pressure, fraud, and
trickery w hich, aside from being factual in nature, are not supported
by concrete, substantial and credible evidence on record. It is w orth
stressing that bare arguments,no matter how forceful,if not based on
concrete and substantial evidence cannot suffice to move the Court
to uphold said allegations.71 Furthermore, "a purported w ill is not [to
be] denied legalization on dubious grounds. Otherw ise, the very
institution of testamentary succession w ill be shaken to its foundation,
for even if a w ill has been duly executed in fact,w hether x x x it will be
probated w ould have to depend largely on the attitude of those
interested in [the estate of the deceased]."72
Court should be convinced by the evidence presented before it that
the Will w as duly executed.
Petitioners dispute the authenticity of Paciencia’s Will on the ground
that Section 11 of Rule 76 of the Rules of Court w as not complied with.
It provides:
RULE 76
Allowance or Disallowance of Will
Section 11. Subscribing wit nesses produced or account ed for where
will cont est ed. – If the w ill is contested, all the subscribing w itnesses,
and the notary in the case of w ills executed under the Civil Code of
the Philippines, if present in the Philippines and not insane, must be
produced and examined,and the death, absence, or insanity of any
of them must be satisfactorily shown tothe court. If all or some of such
w itnessesare present in the Philippines but outsidethe province where
the w ill has been filed, their deposition must be taken. If any or all of
them testify against the due execution of the w ill,or do not remember
having attested to it, or are otherw ise of doubtful credibility, the w ill
may nevertheless, be allow ed if the court is satisfied from the
testimony of other witnesses and from all the evidence presented that
the w ill w as executed and attested in the manner required by law .
If a holographic w ill is contested,the same shall be allow ed if at least
three (3) w itnessesw hoknow the handwriting of the testator explicitly
declare that the w ill and the signature are in the handw riting of the
testator;in the absence of any competent w itnesses, and if the court
deem it necessary, expert testimony may be resorted to. (Emphasis
supplied.)
They insist that all subscribing w itnesses and the notary public should
have been presented in court since all but one w itness, Francisco, are
still living.
We cannot agree w ith petitioners.
We note that the inability of Faustino and Judge Limpin to appear and
testify before the court was satisfactorily explained during the probate

5. 5
proceedings. As testified to by his son, Faustino had a heart attack,
w as already bedridden and could no longer talk and express himself
due to brain damage. To prove this, said w itness presented the
corresponding medical certificate. For her part, Dra. Limpin testified
that her father, Judge Limpin, suffered a stroke in 1991 and had to
undergo brain surgery. At that time,Judge Limpin could no longer talk
and could not even remember his daughter’s name so that Dra.
Limpin stated that given such condition, her father could no longer
testify. It is w ell to notethat at that point, despite ample opportunity,
petitioners neither interposed any objections to the testimonies of said
w itnesses nor challenged the same on cross examination. We thus
hold that for all intents and purposes,Lorenzo w as able to satisfactorily
account for the incapacity and failure of the said subscribing w itness
and of the notary public to testify in court. Because of this the probate
of Paciencia’s Will may be allow ed on the basis of Dra. Limpin’s
testimony proving her sanity and the due execution of the Will, as w ell
as on the proof of her handw riting. It is an established rule that "[a]
testament may not be disallowed just because the attesting witnesses
declare against its due execution; neither does it have to be
necessarily allow edjust because all the attesting w itnesses declare in
favor of its legalization; w hat is decisive is that the court is convinced
by evidence before it, not necessarily from the attesting w itnesses,
although they must testify,that the will was or w as not duly executed
in the manner required by law ."731âwphi1
M oreover,it bears stressing that "[i]rrespective x x x of the posture of
any of the parties as regards the authenticity and due execution of
the w ill x x x in question, it is the mandate of the law that it is the
evidence before the court and/or [evidence that] ought tobe before
it that is controlling."74 "The very existence of [the Will] is in itself prima
facie proof that the supposed [testatrix]has w illed that [her] estatebe
distributed in the manner therein provided, and it is incumbent upon
the state that, if legally tenable, such desire be given full effect
independent of the attitude of the parties affected thereby."75This,
coupled w ith Lorenzo’s established relationship w ith Paciencia, the
evidence and the testimonies of disinterested w itnesses, as opposed
to the total lack of evidence presented by petitioners apart from their
self-serving testimonies, constrain us to tilt the balance in favor of the
authenticity of the Will and its allow ance for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006
and the Resolution dated August 31, 2006 of the Court of Appeals in
CA-G.R. CV No. 80979 are AFFIRMED.
SO ORDERED.
G.R. No. L-6801 March 14, 1912
JULIANA BAGTAS, plaintiffs-appellee,
vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
Salas and Kalaw for appellant s.
Jose Sant iago for appellee.
TRENT, J.:
This is an appeal from an order of the Court of First Instance of the
Province of Bataan, admitting to probate a document w hich w as
offered as the last w ill and testament of PioquintoPaguio y Pizarro. The
w ill purports to have been executed in the pueblo of Pilar, Province of
Bataan,on the 19th day of April, 1908. The testator died on the 28th of
September, 1909, a year and five months follow ing the date of the
execution of the w ill. The w ill w as propounded by the executrix,
Juliana Bagtas,w idow of the decedent,and the opponents are a son
and several grandchildren by a former marriage, the latter being the
children of a deceased daughter.
The basis of the opposition to the probation of the will is that the same
w as not executed according to the formalities and requirements of
the law touching w ills,and further that the testator was not in the full of
enjoyment and use of his mental faculties and w as without the mental
capacity necessary to execute a valid w ill.
The record show s that the testator, Pioquinto Paguio, for some
fourteen of fifteen years prior to the time of his death suffered from a
paralysis of the left side of his body;that a few years prior to his death
his hearing became impaired and that he lost the pow er of speech.
Ow ing to the paralysis of certain muscles his head fell to one side, and
saliva ran from his mouth. He retained the use of his right hand,
how ever, and w as able to w rite fairly w ell. Through the medium of
signs he w as able to indicate his w ishes to his w ife and to other
members of his family.
At the time of the execution of the w ill there w ere present the four
testamentary witnesses, Agustin Paguio, Anacleto Paguio, and Pedro
Paguio, and attorney, Señor M arco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died,and consequently
their testimony w as not available upon the trial of the case in the
low er court. The other three testamentary w itnesses and the w itness
Florentino Ramos testified as to the manner in w hich the w ill w as
executed. According to the uncontroverted testimony of these
w itnesses the w ill w as executed in the follow ing manner:
Pioquinto Paguio, the testator, w rote out on pieces of paper notes
and items relating to the disposition of his property, and these notes
w ere in turn delivered to Señor Marco,who transcribed them and put
them in form. The w itnesses testify that the pieces of paper upon
w hich the notes w erewritten are delivered to attorney by the testator;
that the attorney read them to the testator asking if they w ere his
testamentary dispositions; that the testator assented each time w ith
an affirmative movement of his head; that after the w ill as a w hole
had been thus w ritten by the attorney, it w as read in a loud voice in
the presence of the testator and the w itnesses; that Señor M arco
gave the document to the testator;that the latter, after looking over
it, signed it in the presence of the four subscribing w itnesses; and that
they in turn signed it in the presence of the testator and each other.
These are the facts of record w ith reference to the execution of the
w ill and w e are in perfect accord w ith the judgment of the lower court
that the formalities of the Code of Civil Procedure have been fully
complied w ith.
This brings us now to a consideration of appellants' second assignment
of error, viz, the testator's alleged mental incapacity at the time of the
execution of the w ill. Upon this point considerable evidence w as
adduced at the trial. One of the attesting w itnesses testified that at
the time of the execution of the w ill the testator w as in his right mind,
and that although he w as seriously ill, he indicated by movements of
his head w hat his w ishes w ere. Another of the attesting w itnesses
stated that he w as not able to say whether decedent had the full use
of his mental faculties or not,because he had been ill for some years,
and that he (the w itnesses) was not a physician. The other subscribing
w itness,Pedro Paguio,testified in the low er court as a w itness for the
opponents. He w as unable to state w hether or not the w ill w as the
w ish of the testator. The only reasons he gave for his statement w ere
the infirmity and advanced age of the testator and the fact that he
w as unable to speak. The witness stated that the testator signed the
w ill, and he verified his ow n signature as a subscribing w itness.
Florentino Ramos, although not an attesting w itness, stated that he
w as present w hen the w ill w as executed and his testimony w as
cumulative in corroboration of the manner in w hich the w ill w as
executed and as to the fact that the testator signed the w ill. This
w itness also stated that he had frequently transacted matters of
business for the decedent and had w ritten letters and made
inventories of his property at his request,and that immediately before
and after the execution of the w ill he had performed offices of his
character. He stated that the decedent was able to communicate his
thoughts by w riting.The testimony of this w itness clearly indicates the
presence of mental capacity on the part of the testator. Among other
w itnesses for the opponents w ere tw o physician, Doctor Basa and

6. 6
Doctor Viado. Doctor Basa testified that he had attended thetestator
some four or five years prior to his death and that the latter had
suffered from a cerebral congestion from w hich the paralysis resulted.
The follow ing question w as propounded to Doctor Basa:
Q. Referring to mental condition in w hich you found him
the last time you attended him, do you think he w as in his
right mind?
A. I can not say exactly whether he w as in his right mind,
but I noted some mental disorder,because w hen I spoke to
him he did not answ er me.
Doctor Basa testified at more length, but the substance of his
testimony is that thetestator had suffered a paralysis and that he had
noticed some mental disorder. He does not say that the testator w as
not in his right mind at the time of the execution of the w ill, nor does
he give it at his opinion that he w as w ithout the necessary mental
capacity to make a valid w ill. He did not state in w hat way this mental
disorder had manifested itself other than that he had noticed that the
testator did not reply to him on one occasion w hen he visited him.
Doctor Viado, the other physician, have never seen the testator, but
his answ er was in reply to a hypothetical question as to w hat be the
mental condition of a person w ho w as 79 years old and w ho had
suffered from a malady such as the testator w as supposed to have
had according to the testimony of Doctor Basa, w hose testimony
Doctor Viado had heard. He replied and discussed at some length the
symptoms and consequences of the deceasefrom which the testator
had suffered; he read in support of his statements from a w ork by a
German Physician, Dr. Herman Eichost. In answ er,how ever,to a direct
question,he stated that he w ould be unable to certify to the mental
condition of a person w ho w as suffering from such a disease.
We do not think that the testimony of these two physicians in any w ay
strengthens the contention of the appellants. Their testimony only
confirms the fact that the testator had been for a number of years
prior to his death afflicted w ith paralysis, in consequence of w hich his
physician and mental strength was greatly impaired. Neither of them
attempted to state what was the mental condition of the testator at
the time he executed the will in question. Therecan be no doubt that
the testator's infirmities were of a very serious character, and it is quite
evident that his mind w as not as active as it had been in the earlier
years of his life. How ever,w ecan not include from this that he w anting
in the necessary mental capacity to dispose of his property by w ill.
The courts have been called upon frequently to nullify w ills executed
under such circumstances, but the w eight of the authority is in support
if the principle that it is only w hen those seeking to overthrow the w ill
have clearly established the charge of mental incapacity that the
courts w ill intervene to set aside a testamentary document of this
character. In the case of Bugnao vs. Ubag (14 Phil. Rep., 163), the
question of testamentary capacity w as discussed by this court. The
numerous citations there given from the decisions of the United States
courts are especially applicable to the case at bar and have our
approval. In this jurisdiction the presumption of law is in favor of the
mental capacity of the testator and the burden is upon the
contestants of the w ill to prove thelack of testamentary capacity. (In
the matter of the w ill of Cabigting, 14 Phil. Rep., 463; in the matter of
the w ill of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep.,
689.)
The rule of law relating to the presumption of mental soundness is w ell
established, and the testator in the case at bar never having been
adjudged insane by a court of competent jurisdiction, this
presumption continues, and it is therefore incumbent upon the
opponents to overcome this legal presumption by proper evidence.
This w e think they have failed to do. There are many cases and
authorities w hich w e might cite to show that the courts have
repeatedly held that mere w eakness of mind and body, induced by
age and disease do not render a person incapable of making a w ill.
The law does not require that a person shall continue in the full
enjoyment and use of his pristine physical and mental pow ers in order
to execute a valid w ill. If such w ere the legal standard, few indeed
w ould be the number of w ills that could meet such exacting
requirements. The authorities,both medical and legal, are universal in
statement that the question of mental capacity is one of degree, and
that there are many gradations from the highest degree of mental
soundness to the low est conditions of diseased mentality w hich are
denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as
sacred as any other right w hich a person may exercise and this right
should not be nullified unless mental incapacity is established in a
positive and conclusive manner. In discussing the question of
testamentary capacity, it is stated in volume 28, 70, of the American
and English Encyclopedia of Law , that —
Contrary to the very prevalent lay impression, perfect
soundness of mind is not essential to testamentary capacity.
A testator may be afflicted w ith a variety of mental
w eaknesses,disorders,or peculiarities and still be capable in
law of executing a valid w ill.(See the numerous cases there
cited in support of this statement.)
The rule relating to testamentary capacity is stated in Busw ell on
Insanity, section 365, and quoted w ith approval inCampbell vs.
Campbell (130 Ill., 466), as follow s:
To constitute a sound and disposing mind,it is not necessary
that the mind shall be w holly unbroken, unimpaired, or
unshattered by disease or otherw ise, or that the testator
should be in the full possession of his reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus stated:
The question is not so much, that w as the degreeof memory
possessed by the testator, as, had he a disposing memory?
Was he able to remember the property he w as about to
bequeath,the manner of disturbing it,and the objects of his
bounty? In a w ord, w ere his mind and memory sufficiently
sound to enable him to know and understand the business in
w hich he w as engaged at the time w hen he executed his
w ill. (See authorities there cited.)
In Wilson vs. Mit chell (101 Penn., 495), the follow ing facts appeared
upon the trial of the case: The testator died at the age of nearly 102
years. In his early years he w as an intelligent and w ell informed man.
About seven years prior to his death he suffered a paralytic stroke and
from that time his mind and memory w ere mush enfeebled. He
became very dull of hearing and in consequence of the shrinking of
his brain he w as affected with senile cataract causing total blindness.
He became filthy and obscene in his habits, although formerly he w as
observant of the properties of life. The court,in commenting upon the
case, said:
Neither age,nor sickness, nor extreme distress,nor debility of
body w ill affect the capacity to make a w ill, if sufficient
intelligence remains. The failure of memory is not sufficient to
create the incapacity, unless it be total, or extend to his
immediate family or property. . . .
x x x x x x x x x
Dougal (the testator) had lived over one hundred years
before he made the w ill, and his physical and mental
w eakness and defective memory w ere in striking contrast
w ith their strength in the meridian of his life. He w as blind;not
deaf, but hearing impaired; his mind acted slow ly, he w as
forgetful or recent events, especially of names, and
repeated questions in conversation; and sometimes, w hen

7. 7
aroused for sleep or slumber, w ould seem bew ildered. It is
not singular that some of those w ho had know n him w hen
he w as remarkable for vigor and intelligence, are of the
opinion that his reason w as so far gone that he w as
incapable of making a w ill, although they never heard him
utter an irrational expression.
In the above case the w ill w as sustained.In the case at bar w e might
draw the same contrast as w as pictured by the court in the case just
quoted. The striking change in the physical and mental vigor of the
testator during the last years of his life may have led some of those
w ho knew him in his earlier days to entertain doubts as to his mental
capacity to make a w ill, yet w e think that the statements of the
w itnessesto the execution of the w ill and statements of the conduct
of the testator at that time all indicate that he unquestionably had
mental capacity and that he exercised it on this occasion. At the time
of the execution of the w ill it does not appear that his conduct w as
irrational in any particular. He seems to have comprehended clearly
w hat the nature of the business w as in w hich he w as engaged. The
evidence show that thewriting and execution of the w ill occupied a
period several hours and that the testator w as present during all this
time,taking an active part in all the proceedings. Again, the w ill in the
case at bar is perfectly reasonable and its dispositions are those of a
rational person.
For the reasons above stated, the order probating the w ill should be
and the same is hereby affirmed,w ith costs of this instance against the
appellants.
Arellano, C.J., Torres, Mapa, Johnson, Carson and Moreland,
JJ., concur.
G.R. No. 4445 September 18, 1909
CATALINA BUGNAO, proponent-appellee,
vs.
FRANCISCO UBAG, ET AL., contestants-appellants.
Rodriguez and Del Rosario for appellant s.
Fernando Salas for appellee.
CARSON, J.:
This is an appeal from an order of the Court of First Instance of Oriental
Negros, admitting to probate a document purporting to be the last
w ill and testament of Domingo Ubag, deceased. The instrument w as
propounded by his w idow , Catalina Bugnao, the sole beneficiary
thereunder,and probate w as contested by the appellants, w ho are
brothers and sisters of the deceased, and w ho w ould be entitled to
share in the distribution of his estate, if probate w ere denied, as it
appears that the deceased left no heirs in the direct ascending or
descending line.
Appellants contend that the evidence of record is not sufficient to
establish the execution of the alleged w ill in the manner and form
prescribed in section 618 of the Code of Civil Procedure; and that at
the time w hen it is alleged that the will w as executed, Ubag w as not
of sound mind and memory, and w as physically and mentally
incapable of making a w ill.
The instrument propoundedfor probate purports to be the last will and
testament of Domingo Ubag, signed by him in the presence of three
subscribing and attesting w itnesses, and appears upon its face to
have been duly executed in accordance w ith the provisions of the
Code of Civil Procedure touching the making of w ills.
Tw o of the subscribing w itnesses, Victor J. Bingtoy and Catalino
M ariño,testified in support of the will,the latter being the justice of the
peace of the municipality w herein it w as executed; and their
testimony was corroborated in all important details by thetestimony of
the proponent herself, w ho w as present w hen the w ill w as made. It
does not appear from the record w hy thethird subscribing w itness was
not called; but since counsel for the contestants makes no comment
upon his absence, w e think it may safely be inferred that there w as
some good and sufficient reason therefore. In passing, how ever, it
may be w ell to observe that, w hen because of death, sickness,
absence, or for any other reason, it is not practicable to call to the
w itness stand all the subscribing w itnesses to a w ill offered for probate,
the reason for the absence of any of these w itnesses should be made
to appear of record, and this especially in cases such as the one at
bar, w herein there is a contests.
The subscribing w itnesses gave full and detailed accounts of the
execution of the w ill and sw ore that the testator, at the time of its
execution, w as of sound mind and memory, and in their presence
attached his signature thereto as his last w ill and testament, and that
in his presence and in the presence of each other,they as w ell as the
third subscribing w itness. Despite the searching and exhaustive cross-
examination to w hich they w ere subjected, counsel for appellants
could point to no flaw in their testimony savean alleged contradiction
as to a single incident w hich occurred at or about the time w hen the
w ill w as executed a contradiction, how ever, w hich w e think is more
apparent than real. One of the w itnesses stated that the deceased
sat up in bed and signed his name to the w ill, and that after its
execution food was given him by his w ife;w hile the other testifiedthat
he w as assisted into a sitting position,and w as given something to eat
before he signed his name. We think the evidence discloses that his
w ife aided the sick man to sit up in bed at the time w hen he signed his
name to the instrument,and that he w as given nourishment w hile he
w as in that position, but it is not quite clear w hether this w as
immediately before or after, or both before and after he attached his
signature to the w ill. To say that the sick man sat up or raised himself
up in bed is not necessarily in conflict w ith the fact that he received
assistance in doing so; and it is not at all improbable or impossible that
nourishment might have been given to him both before and after
signing the w ill, and that one w itness might remember the former
occasion and the other w itness might recall the latter, although
neither w itness could recall both. But, how ever this may have been,
w e do not think that a slight lapse of memory on the part of one or the
other w itness,as to the precise details of an unimportant incident, to
w hich his attention may not have been particularly directed, is
sufficient to raise a doubt as to the veracity of these witnesses,or as to
the truth and accuracy of their recollection of the fact of the
execution of the instrument. Of course, a number of contradictions in
the testimony of alleged subscribing w itnesses to a w ill as to the
circumstances under w hich it w as executed, or even a single
contradiction as to a particular incident, w here the incident w as of
such a nature that the intention of any person w ho w as present must
have been directed to it,and w here the contradictory statements in
regard to it are so clear and explicit as to negative the possibility or
probability of mistake,might well be sufficient to justify the conclusion
that the w itnesses could not possibly have been present, together, at
the time w hen it is alleged the w ill w as executed; but the apparent
contradictions in the testimony of the w itnesses in the case at bar fall
far short of raising a doubt a to their veracity, and on the other hand
their testimony as a w hole gives such clear, explicit, and detailed
account of all that occurred, and is so convincing and altogether
satisfactory that w e have no doubt that the trial judge w ho heard
them testify properly accepted their testimony as w orthy of entire
confidence and belief.
The contestants put upon the stand four w itnesses for the purpose of
proving that at the time and on the occasion w hen the subscribing
w itnessestestified that the will was executed,these witnesses werenot
in the house w ith the testator, and that the alleged testator w as at
that time in such physical and mental condition that it w as impossible
for him to have made a w ill. Tw o of these w itnesses, upon cross-
examination,admitted that they were not in the house at or between
the hours of four and six in the afternoon of the day on w hich the w ill is
alleged to have been made, this being the time at w hich the
w itnesses in support of the w ill testified that it w as executed. Of the
other w itnesses, one is a contestant of the w ill, M acario Ubag, a
brother of the testator,and the other,Canuto Sinoy, his close relative.

8. 8
These w itnessesswore that they w ere in the house of the deceased,
w here he w as lying ill,at or about the time when it is alleged that the
w ill w as executed, and that at that time the alleged subscribing
w itnessesw ere not in the house, and the alleged testator w as so sick
that he w as unable to speak, to understand, or to make himself
understood,and that he w as w holly incapacitated to makea w ill. But
the testimony of M acario Ubag is in our opinion w holly unw orthy of
credence. In addition to his manifest interest in the result of the
investigation, it clearly discloses a fixed and settled purpose to
overthrow the will at all costs,and to that end an utter disregard of the
truth, and readiness to sw ear to any fact w hich he imagined w ould
aid in securing his object. An admittedly genuine and authentic
signature of the deceased w as introduced in evidence for
comparison w ith the signatureattached to the w ill, but this w itness in
his anxiety todeny the genuineness of the signature of his brother to
the w ill, promptly and positively sw ore that the admittedly genuine
signature w as not his brother's signature, and only corrected his
erroneous statement in response to a somew hat suggestive question
by his attorney which evidently gavehim to understand that his former
answ er w as likely to prejudice his ow n cause. On cross-examination,
he w as forced to admit that because his brother and his brother's wife
(in those favor the w ill was made) were Aglipayanos, he and his other
brothers and sisters had not visited them for many months prior to the
one particular occasion as to w hich testified;and he admitted further,
that,although he lived near at hand, at no time thereafter did he or
any of the other members of his family visit their dying brother, and
that they did not even attend the funeral. If the testimony of this
w itness could be accepted as true, it w ould be a remarkable
coincidence indeed,that the subscribing w itnessesto the alleged w ill
should have falsely pretended to have joined in its execution on the
very day, and at the precise hour, w hen this interested w itness
happened to pay his only visit to his brother during his last illness, so
that the testimony of this w itness w ould furnish conclusive evidence in
support of the allegations of the contestants that the alleged w ill w as
not executed at the time and place or in the manner and form
alleged by the subscribing w itnesses. We do not think that the
testimony of this w itness nor any of the other w itnesses for the
contestants is sufficient to raise even a doubt as to the truth of the
testimony of the subscribing witnesses as to the fact of the execution
of the w ill, or as to the manner and from in w hich it w as executed.
In the course of the proceedings,an admittedly genuine signature of
the deceased w as introduced in evidence, and upon a comparison
of this signature w ith the signature attached to the instrument in
question,w e are w holly of the opinion of the trial judge, w ho held in
this connection as follow s:
No expert evidence has been adduced w ith regard to
these tw o signatures, and the presiding judge of this court
does not claim to possess any special expert know ledge in
the matter of signatures; nevertheless, the court has
compared these two signatures,and does not find that any
material differences exists between the same. It is true that
the signature w hich appears in the document offered for
authentication discloses that at the time of w riting the
subscriber w as more deliberate in his movements, but tw o
facts must be acknow ledge: First, that the testator w as
seriously ill, and the other fact, that for some reason w hich is
not stated the testator was unable to see,and w as a person
w ho w as not in the habit of signing his name every day.
These facts should sufficiently explain w hatever difference
may exist betw een the tw o signatures, but the court finds
that the principal strokes in the tw o signatures are identical.
That the testator w as mentally capable of making the w ill is in our
opinion fully established by the testimony of the subscribing w itnesses
w ho sw ore positively that,at the time of its execution,he w as of sound
mind and memory. It is true that their testimony discloses the fact that
he w as at that time extremely ill,in an advanced stage of tuberculosis
complicated w ith severe intermittent attacks of asthma; that he w as
too sick to rise unaided from his bed; that he needed assistance even
to rise himself to a sitting position; and that during the paroxysms of
asthma to w hich he w as subject he could not speak; but all this
evidence of physical w eakness in no w ise establishes his mental
incapacity or a lack of testamentary capacity, and indeed the
evidence of the subscribing w itnesses as to the aid furnished them by
the testator in preparing the w ill, and his clear recollection of the
boundaries and physical description of the various parcels of land set
out therein,taken together with the fact that he w as able to give to
the person w ho w rote the w ill clear and explicit instructions as to his
desires touching the disposition of his property, is strong evidence of
his testamentary capacity.
Counsel for appellant suggests that the fact that the alleged w ill
leaves all the property of the testator to his widow , and w holly fails to
make any provision for his brothers or sisters, indicates a lack of
testamentary capacity and undue influence; and because of the
inherent improbability that a man w ould make so unnatural and
unreasonable a w ill,they contend that this fact indirectly corroborates
their contention that the deceasednever did in fact ex ecute the w ill.
But w hen it is considered that the deceased at the time of his death
had no heirs in the ascending or descending line; that a bitter family
quarrel had long separated him from his brothers and sisters, w ho
declined to have any relations w ith the testator because he and his
w ife w ere adherents of the Aglipayano Church; and that this quarrel
w as so bitter that none of his brothers or sisters,although some of them
lived in the vicinity,w ere present at the time of his death or attended
his funeral; w e think the fact that the deceased desired to leave and
did leave all of his property to his w idow and made no provision for his
brothers and sisters,w ho themselves weregrown men and w omen,by
no means tends to disclose either an unsound mind or the presence of
undue influence on the part of his w ife, or in any w ise corroborates
contestants' allegation that the w ill never w as executed.
It has been said that "the difficulty of stating standards or tests by
w hich to determine the degree of mental capacity of a particular
person has been everyw here recognized, and grow s out of the
inherent impossibility of measuring mental capacity, or its impairment
by disease or other causes" (Greene vs. Greene,145 III.,264, 276); and
that "it is probable that no court has ever attempted to lay dow n any
definite rule in respect to the exact amount of mental capacity
requisite for the making of a valid w ill, w ithout appreciating the
difficulty of the undertaking" (Trish vs. New ell, 62 III., 196, 203).
Betw een the highest degreeof soundness of mind and memory which
unquestionably carries w ith it full testamentary capacity, and that
degree of mental aberration generally know n as insanity or idiocy,
there are numberless degrees of mental capacity or incapacity, and
w hile on one hand it has been held that "mere w eakness of mind, or
partial imbecility from the diseaseof body,or from age,w ill not render
a person incapable of making a w ill,a w eak or feeble minded person
may make a valid w ill, provided he has understanding memory
sufficient to enable him to know w hat he is about, and how or to
w hom he is disposing of his property" (Lodge vs. Lodge,2 Houst. (Del.),
418); that, "To constitute a sound and disposing mind, it is not
necessary that the mind should be unbroken or unimpaired,
unshattered by disease or otherw ise" (Sloan vs. M axw ell, 3 N. J. Eq.,
563); that "it has not been understood that a testator must possess
these qualities (of sound and disposing mind and memory) in the
highest degree. . . . Few indeed w ould be the w ills confirmed, if this is
correct. Pain, sickness, debility of body, from age or infirmity, w ould,
according to its violence or duration,in a greater or less degree,break
in upon, w eaken,or derange the mind,but the derangement must be
such as deprives him of the rational faculties common to man"
(Den. vs. Vancleve, 5 N. J. L.,680); and, that "Sound mind does not
mean a perfectly balanced mind. The question of soundness is one of
degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42 L. J. P., 25); on the
other hand, it has been held that "testamentary incapacity does not
necessarily require that a person shall actually be insane or of an
unsound mind. Weakness of intellect, w hether it arises from extreme
old age from disease,or great bodily infirmities or suffering, or from all
these combined,may render the testator incapable of making a valid
w ill, providing such w eakness really disqualifies her from know ing or
appreciating the nature, effects, or consequences of the act she is

9. 9
engaged in" (M anatt vs. Scott, 106 Iow a, 203; 68 Am. St. Rep., 293,
302).
But for the purposes of this decision it is not necessary for us to attempt
to lay dow n a definition of testamentary capacity w hich w ill cover all
possible cases w hich may present themselves, because, as w ill be
seen from w hat has already been said,the testator was,at the time of
making the instrument under consideration, endow ed w ith all the
elements of mental capacity set out in the follow ing definition of
testamentary capacity w hich has been frequently announced in
courts of last resort in England and the United States;and w hile is some
cases testamentary capacity has been held to exist in the absence of
proof of some of these elements,there can be no question that,in the
absence of proof of very exceptional circumstances, proof of the
existence of all these elementsin sufficient to establish the existence of
testamentary capacity.
Testamentary capacity is the capacity to comprehend the
nature of the transaction w hich the testator is engaged at
the time,to recollect the property to be disposed of and the
person w ho w ould naturally be supposed to have claims
upon the testator,and to comprehend the manner in w hich
the instrument w ill distributehis property among the objects
of his bounty.
(Cf. large array of cases cited in support of this definition in the
Encyclopedia of Law , vol. 23, p. 71, second edition.)
In our opinion, the evidence of record establishes in a strikingly
conclusive manner the execution of the instrument propounded as
the last w ill and testament of the deceased;that it w as made in strict
conformity w ith the requisites prescribed by law;and that, at the time
of its execution,the deceased w as of sound mind and memory, and
executed the instrument of his ow n free w ill and accord.
The order probating the will should be land is hereby affirmed,w ith the
cost of this instance against the appellants.
Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.
G.R. No. L-24569 February 26, 1926
MANUEL TORRES, petitioner-appellant and
LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.
Aranet a & Zaragoza for appellant .
Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.
MALCOLM, J.:
This case concerns the probate of the alleged w ill of the late Tomas
Rodriguez y Lopez.
Tomas Rodriguez died in the City of M anila Philippine Islands. On
February 25, 1924, leaving a considerable estate. Shortly thereafter
M anuel Torres,one of the executors named in the w ill asked that the
w ill of Rodriguez be allow ed. Opposition w as entered by M argarita
Lopez, the first cousin of the deceased on the grounds: (1) That the
testator lacked mental capacity because at the time of senile
dement ia and was under guardianship; (2) that undue influence had
been exercised by the persons benefited in the document in
conjunction w ith others w ho acted in their behalf; and (3) that the
signature of Tomas Rodriguez to the document was obtained through
fraud and deceit. After a prolonged trial judgment w as rendered
denying the legalization of the w ill. In the decision of the trial judge
appeared, among others, these findings:
All this evidence taken together with the circumstances that
before and at the time Tomas Rodriguez was caused to sign
the supposed w ill Exhibit A, and the copies thereof there
already existed a final judgment as to his mental condition
w herein he w as declared physically and mentally
incapacitated to take care of himself and manage his
estate show s in a clear and conclusive manner that at the
time of signing the supposed w ill of Tomas Rodriguez did not
possess such mental capacity as w as necessary to be able
him to dispose of his property by the supposed w ill.
But even supposing as contended by petitioner's counsel
that Tomas Rodriguez w as at the time of execution of the
w ill, competent to make a w ill, the court is of the opinion
that the w ill cannot be probated for it appears from the
declaration of the attesting witness Elias Bonoan that w hen
the legatee Luz Lopez presented the supposed will,Exhibit A,
to Tomas Rodriguez, she told him to sign said Exhibit A
because it w as a document relative to the complaint
against one Castito, w hich Exhibit 4, then pending in the
justice of the peace court, and for the further reason that
said Tomas Rodriguez w as then under guardianship, due to
his being mentally and physically incapacitated and
therefore unable to manage his property and take care of
himself. It must also be taken into account that Tomas
Rodriguez w as an old man 76 years of age, and w as sick in
the hospital w hen his signature to the supposed w ill w as
obtained. All of this show s that the signature of Tomas
Rodriguez appearing in the w ill w as obtained through
fraudulent and deceitful representations of thosewho w ere
interested in it. (Record on Appeal, p. 23)
From the decision and judgment above-mentioned the proponents
have appealed. Two errors are specified,viz: (1) The court below erred
in holding that at the time of signing his w ill, Tomas Rodriguez did not
possess the mental capacity necessary to make the same,and (2) the
court below erred in holding that the signatures of Tomas Rodriguez to
the w ill w ere obtained through fraudulent and deceitful
representations,made by persons interested in the executions of said
w ill.
The record is voluminous — close to tw o thousand typew ritten pages,
w ith a varied assortment of exhibits. One brief contains tw o hundred
seventy-four pages, the other four hundred fifteen pages. The usual
oral argument has been had. The court must scale this mountains of
evidence more or less relevant and of argument intense and prolific to
discover the fertile valleys of fact and principle.
The topics suggested by the assignments of error — Testamentary
Capacity and Undue Influence — w ill be taken up separately and in
order. An attempt w ill be made under each subject first to make
findings of fact quite separate and apart from those of the judge and
second to make findings of law and the law by rendering judgment.
I. TESTAM ENTARY CAPACITY
A. Fact s. — For a long time prior to October, 1923, Tomas Rodriguez
w as in feeble health. His breakdown was undoubtedly due to organic
w eakness,to advancing years and to an accident w hich occurred in
1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas
Rodriguez designated Vicente F. Lopez as the administrator of his
property (Exhibit 7).
On October 22, 1923, M argarita Lopez petitioned the Court of First
Instance of M anila to name a guardian for Tomas Rodriguez because
of his age and pathological state. This petition w as opposed by
Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for
the reason that w hile Rodriguez w as far from strong on account of his
years, he w as yet capable of looking after his property w ith the
assistance of his administrator, Vicente F. Lopez. The deposition of
Tomas Rodriguez w as taken and a perusal of the same show s that he

10. 10
w as able to answ er nearly all of the questions propoundedintelligently
(Exhibit 5-g). A trial had at w hich considerable oral testimony for the
petitioner w as received. At the conclusion of the hearing, an order
w as issued by the presiding judge, declaring Tomas Rodriguez
incapacitated to take care of himself and to manage his property
and naming Vicente F. Lopez as his guardian. (Exhibit 37).
Inasmuch as counsel for the appellee make such of one incident
w hich occurred in connection w ith the guardianship proceedings, it
may as w ell be mentioned here as later. This episode concerns the
effort of deputy sheriff Joaquin Garcia to make service on Tomas
Rodriguez on October 31, 1923. We w ill let the w itness tell in his ow n
w ords w hat happened on the occasions in question:
I found him lying dow n on his bed. . . . And w hen it (the
cleaning of his head) w as finished,I again entered his room,
and told him that I had an order of the court w hich I w anted
to read as I did read to him, but after reading the order he
asked me w hat the order meant;'I read it to you so that you
may appear before the court, understand,' then I read it
again, but he asked w hat the order said;in view of that fact
I left the order and departed from the house. (S. R., p. 642.)
To return to our narrative — possibly inspired by the latter portion of the
order of Judge Diaz, Tomas Rodriguez w as taken to the Philippine
General Hospital on November 27,1923. Therehe w as to remain sick in
bed until his death. The physician in charge during this period w as Dr.
Elias Domingo. In the clinical case record of the hospital under the
topic "Diagnosis (in full)," w e find the follow ing "Senility; Hernia inguinal;
Decubitus" (Exhibit 8).
On the door of the patient's room w as placed a placard reading —
"No visitors,except father,mother,sisters,and brothers." (Testimony of
head nurse physician, there w ere permitted to visit the patient only
the follow ing named persons: Santiago Lopez, M anuel Ramirez,
Romana Lopez, Luz Lopez de Bueno, Remedio Lopez, Benita Lopez,
Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio
Araneta ((Exhibit 9). The list did not include the names of M argarita
Lopez and her husband Antonio Ventura. Indeed the last named
persons experienced considerable difficulty in penetrating in to the
room of Rodriguez.
Santiago Lopez states that on one occasion w hen he w as visiting
Tomas Rodriguez in the hospital ,Rodriguez expressed to him a desire
to make a w ill and suggested that the matter be taken up w ith
Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez
communicated to Vicente F. Lopez,w ho then interview ed M aximino
M ina, a practicing attorney in the City of M anila, for the purpose of
securing him to prepare the w ill. In accordance w ith this request,
Judge M ina conferred w ith Tomas Rodriguez in the hospital in
December 16th and December 29th. He ascertained the w ishes of
Rodriguez and w rote up a testament in rough draft. The attorney
expected to return to the hospital on December 31st to have the w ill
executed but w as unable to do so on account of having to make a
trip to the provinces. Accordingly,the papers w ere left w ith Santiago
Lopez.
In corroboration of the above statements, w e transcribe a portion of
Judge M ina's testimony w hich has not been challenged in any w ay:
ARANETA: Q. Will you please tell your motive for holding an
interview w ith Vicente Lopez?
M AXIM INO M INA: A. Then I arrived in the house of Vicente
Lopez, after the usual greeting and other unimportant
things, he consulted me or presented the question as to
w hether or not D. Tomas could make his w ill, having
announced his desire to do so. I told him that it seemed that
w e w ere not called upon to decide or give an opinion as to
w hether or not he can make a w ill; it is a question to be
submitted to the court,but as he had announced his desire,
it is our duty to comply w ith it. Then he requested me to do
w hat w as necessary to comply w ith his w ishes: I told him I
w as to see him;then w e agreed that on the morning next to
the follow ing evening that is on the 16th, I should go to the
General Hospital and so I did.
Q. Did you go to the hospital in the evening of the 16th? —
A. Yes, sir.
Q. Did you meet D. Tomas? — A. Yes, sir.
Q. Did D. Tomas tell you his desire to make a w ill?
OCAM PO: Leading.
ARANETA: I w ithdraw.What,if anything,did D. Tomas tell you
on that occasion w hen you saw him there? — A. He told me
that.
Q. Please tell us w hat conversation you had w ith D. Tomas
Rodriguez? — A. The conversation I had w ith him that
evening — according to my best recollection — I cannot tell
the exact w ords and perhaps the order. After the usual
greetings, Good evening, D. Tomas, ' Good evening,' How
are you,' ' How do you do? Very w ell, just came here in the
name of D. Vicente Lopez w hy does he not come. He
cannot come because he has many things to do, and
besides it is hard for him and makes him tired, so he told me
to come.' M ina,your tenant,attorney.' Are you an attorney?
Yes.' Where do you live? I live in Quiapo.' Oh, in Quiapo, a
good district, it is gay a commercial place you must have
some business there because that is a commercial place.
Unfortunately, I have none, D. Tomas.' Well, you must be
have because the profession alone does not give enough.
Where is your office? I w ork in the office of M r. Chicote. That
M r. Chicote must be rich, it seems to me that he is. The
profession gives almost nothing it is better to have
properties. I am an attorney but do not depend upon my
profession. I interrupted D. Tomas saying, since you w ant to
make a w ill,w hen and to w hom do you want to leave your
fortune? Then he said, To w hom else? To my cousin Vicente
Lopez and his daughter Luz Lopez. Which properties do you
w ant to give to your cousin and niece? All my properties,
Won't you specify the property to be given to each of
them? What for? All my property. Don't you have any other
relatives? Yes, sir I have. Won't you give any to those
relatives? What for? w as his answ er. Well, do you w ant to
specify said properties,to say w hat they are? and he again
said, What for? they know them,he is my attorney-in-fact as
to all property. I also said,Well and as legacy w on't you give
property to other persons? answ ers, I think, something, they
w ill know it. After being asked, Whom do you think, w ould
you w ant to be your executor? After hesitating a little, This
Torres, M anuel or Santiago Lopez also. Then I asked him,
What is your religion? He answ ered, Roman Apostolic
Catholic, and then he also asked me, and your? Also
Roman Apostolic Catholic, Where have you studied?' 'In the
University of Santo Tomas.' 'It is convenient to preserve the
Catholic religion that our descendants have left us. And you,
w hat did you have anything more to say as to your
testamentary dispositions? No, he answ ered. Then I remind
him, 'You know that Vicente Lopez has sent me to get these
dispositions of yours, and he said, Yes, do it.' I asked him,
When do you w ant it done? Later on, I w ill send for you.
After this believing to have done my duty,I bade him good-
bye.
Q. Did you have any other occasion to see him? — A. Yes.
Q. When? — A. On December 29,1923, also in the evening.

11. 11
Q. Why did you go to see him? — A. Because as I had not
received any message either from Vicente Lopez or Tomas
Rodriguez, as I had received notices in connection w ith the
few cases I had in the provinces particularly in Tayabas,
w hich compelled me to be absent from Manila until January
1st at least,for I might be there for several days,so I w ent to
the General Hospital of my ow n accord — since I had not
received any messages from them — w ith a rough draft
w hich I had prepared in accordance w ith w hat he had told
me in our conversation. After the greetings,I told him, Here I
am D. Tomas; this is the rough draft of your w ill in
accordance w ith your former statements to me in order to
submit it to you. Do you w ant to read it?' 'Please do me the
favor of reading it. I read it slow ly to him in order that he
could understand it . After reading, Is it all right, that is the
w ay,— few w ords — you see it takes only a few minutes;
now I can execute the w ill. We can do it takes only a few
minutes.' In view of that statement of his, I called his
attention,' But w e don't have witnesses, D. Tomas.' I looked
out through the door to see if I could call some w itnesses but
it w as late then and it w as thought better todo it on the 31st
of December. Then w e talked about other things, and he
again asked. Where w ere you born? I told him in Quiapo.
Ah, good district, and especially now that the fiesta of
Quiapo is coming near,' and then I interrupted him, Yes, the
fiesta of the Holy Child and of Our Lady of M ount Carmel'
because w e also talked about thefiesta of San Sebastian. I
again reminded him that w e could not do it because the
w itnessesw ere not there and he explained,Good Christmas
present,isn't it?' I did not tell him anything and in view of that
I did not deem it necessary to stay there any longer.
Q. With w hom did you make the arrangement to make the
w ill on the evening of the 31st of December — you said that
it w as agreed that the w ill be executed on the evening of
December 31st? — A. With Santiago Lopez and Don Tomas.
Q. Was the w ill executed on the 31st of December? — A.
What happened is this: In view of that agreement,I fixed up
the draft w hich I had, dating it the 31st of December,
putting everything in order;w eagreed that Santiago w ould
meet me on 31st day between five and six in the evening or
a little before,but it happened that beforethe arrival of that
date Santiago Lopez came and told me that I need not
trouble about going to the General Hospital; because it
could not be carried out for the reason that certain
requisites w erelacking. In view of this and bearing alw ays in
mind that on the follow ing day I had to go to the provinces,
I told Santiago Lopez that I would leave the papers with him
because I might go to the provinces.
Q. What may be the meaning of those w ords good
Christmas present? — A. They are given a Christmas present
w hen Christmas comes or on the occasion of Christmas.
Q. I show you this document w hich is marked Exhibit A, tell
me if that is the w ill or copy of the w ill w hich you delivered to
Santiago Lopez on December 21, 31, 1923? — A. With the
exception of the words '3 de enero de 1924' It seems to be
literally identical. (S. R. pp. 244-249.)
As the w itness stated,the will w hich w as prepared by him is identical
w ith that signed by the testator and the attesting w itnesses w ith the
single exception of the change of the date from December 31, 1923,
to January 3, 1924. Tw o copies besides the original of the w ill w ere
made. The w ill is brief and simple in terminology.
For purposes of record, w e copy the w ill as here translated intoEnglish:
ONLY PAGE
In the City of M anila,Philippines Islands, this January 3, 1924,
I, Tomas Rodriguez, of age and resident of the City of
M anila,Philippine Islands,do freely and voluntarily make this
my w ill and testament in the Spanish language w hich I
know , w ith the follow ing clauses:
First I declare that I am a Roman Apostolic Catholic, and
order that my body be buried in accordance w ith my
religion, standing and circumstances.
Second. I name my cousin Vicente F. Lopez and his
daughter Luz Lopez de Bueno as my only universal heirs of all
my property.
Third. I appoint D. M anuel Torres and D. Santiago Lopez as
my prosecutors.
In w itness w hereof I sign this typew ritten w ill, consisting of
one single page, in the presence of the w itness w ho sign
below .
(Sgd.) TOM AS RODRIGUEZ
(Left marginal signatures:)
TOM AS RODRIGUEZ
ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS
We hereby certify that on the date and in the place above
indicated, Don Tomas Rodriguez executed this w ill,
consisting of one single typew ritten page, having signed at
the bottom of the w ill in the presence of us w ho saw as
w itnessesthe execution of this w ill,w esigned at the bottom
thereof in the presence of the testator and of each other.
(Sgd.) V. L. LEGARDA
ELIAS BONOAN
A. DE ASIS
(Exhibit A.)
On the afternoon of January 3,1924 there gathered in the quarters of
Tomas Rodriguez in the Philippine General Hospital, Santiago Lopez
and Dr. A. De Asis, attesting w itness; and Dr. Elias Fernando Calderon,
Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for
purposes of observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl.
Legarda,S. R. p. 34. ) Possibly also M rs. Luz Lopez de Bueno and M rs.
Nena Lopez w ere present; at least they w ere hovering in the
background.
As to w hat actually happened,w e have in the record tw o absolutely
contradictory accounts. One emanates from the attesting w itness,
Doctor Bonoan. The other is the united testimony of all remaining
persons w ho w ere there.
Doctor Elias Bonoan w as the first w itness called at the trial. He testified
on direct examination as to formal matters, such as the identification
of the signatures to the w ill .On cross-examination, he rather started
the proponents of the w ill by stating that Luz Lopez de Bueno told
Tomas Rodriguez to sign the document it concerned a complaint
against Castito and that nobody read the w ill to the testator. Doctor
Bonoan's testimony along this line is as follow s:
QUESTIONS.
M ARCAIDA : Q. Why w ere you a witness to the will of Tomas
Rodriguez?

12. 12
Araneta: I object to the question as being immaterial.
Court: Objection overruled.
Dr. Bonoan: A. Because I w as called up by M rs. Luz by
telephone telling me tobe in the hospital at 3 o'clock sharp
in the afternoon of the 3d of January.
Q. Who is that Luz w hom you have mentioned? — A. Luz
Lopez, daughter of Vicente Lopez.
Q. What day, January 3, 1924? A. Yes, sir.
Q. When did Luz Lopez talk to you in connection w ith your
going to the hospital? — A. On the morning of the 3d she
called me up by telephone.
Q. On the morning? — A. On the morning.
Q. Before January 3,1924,w hen the w ill of Tomas Rodriguez
w as signed, did Luz Lopez talk to you? A. Yes, sir.
Q. How many days approximately before w as it? — A. I
cannot tell the day,it w as approximately one w eek before,
— on that occasion w hen I w as called up by her about the
deceased Vicente Lopez.
Q. What did she tell you w hen you w ent to the house of
Vicente Lopez one w eek approximately before signing the
w ill? - A. That Tomas Rodriguez w ould make a w ill.
Q. Don't you know w here the w ill of Tomas Rodriguez w as
made? - A. In the General Hospital.
Q. Was that document w ritten in the hospital? — A. I have
not seen it.
Q. When you w ent to the General Hospital on January 3,
1924,w ho w ere the persons you met in the room w here the
patients w as ? — A. I met one of the nieces of the deceased
Tomas Rodriguez, M rs. Nena Lopez and Dna. Luz Lopez.
Q. Were those the only persons? — A. Yes, sir.
Q. What time approximately did you go to the General
Hospital on January 3d? — A. A quarter to 3.
Q. After you, w ho came? — A. Antonio de Asis, Doctor
Herrera, later on Doctor Calderon arrived w ith Doctor Elias
Domingo and lastly Santiago Lopez came and then M r.
Legarda.
Q. When you entered the room of the patient, D. Tomas
Rodriguez, in the General Hospital in w hat position did you
find him?— A. He w as lying dow n.
Q. Did you greet D. Tomas Rodriguez? A. I did.
Q. Did D. Tomas Rodriguez answ er you? — A. Dna. Nena
immediately answ ered in advance and introduced me to
him saying that I w as the brother of his godson.
Q. Did other persons w hom you have mentioned,viz,M essrs.
Calderon, Herrera, Domingo, De Asis and Legarda greet
Tomas Rodriguez?
ARANETA: I object to the question as being improper cross-
examination. It has not been the subject of the direct
examination.
COURT: Objection overruled.
ARANETA: Exception.
A. No, sir, they joined us.
Q. What w as D. Tomas told when he signed the will.? — A. To
sign it.
Q. Who told D. Tomas to sign the w ill? — A. Luz Lopez.
Q. What did Luz Lopez tell Tomas Rodriguez in order that he
should sign the w ill? — A. She told him to sign the document;
the deceased Tomas Rodriguez before signing the
document asked w hat that w as w hich he w as to sign.
Q. What did anybody answ er tothat question of D. Tomas?
— A. Luz Lopez told him to sign it because it concerned a
complaint against Castito. D. Tomas said, 'What is this?" And
Luz Lopez answ ered, 'You sign this document, uncle Tomas,
because this is about the complaint against Castito.
Q. Then Tomas Rodriguez signed the w ill? — A. Yes, sir.
Q. Who had the w ill? Who w as holding it? — A. M r. Vicente
Legarda had it his ow n hands.
Q. Was the w ill signed by Tomas Rodriguez lying down,on his
feet or seated? — A. Lying dow n.
Q. Was the w ill read by Tomas Rodriguez or any person
present at the time of signing the w ill, did they read it to
him? — A. Nobody read the w ill to him.
Q. Did not D. Tomas read the w ill? — A. I have not seen it.
Q. Were you present? — A. Yes, sir. ( S. R. p. 8)
As it w ould be quite impracticable to transcribe the testimony of all
the others w ho attended the making of the w ill, w e w ill let Vicente L.
Legarda, w ho appears to have assumed the leading role, tell w hat
transpired. He testified in part:
ARANETA : Q. Who exhibited to you those documents,
Exhibits A, A-1, and A-2?
LEGARDA: A. Santiago Lopez.
Q. Did he show you the samedocument? — A. First that is to
say the first document he presented to me w as a rough
draft, a tentative will,and it w as dated December 31st, and
I called his attention to the fact that the date w as not
December 31, 1923, and that it w as necessary to change
the date to January 3, 1924, and it w as done.
Q. And it w as then, w as it not w hen Exhibits A, A-1, and A-2
w ere w ritten? — A. Yes, sir.
Q. Do you any know w here it w as w ritten? — A. In the
General Hospital.

13. 13
Q. Did any time elapse from your making the suggestion
that the document w hich you delivered to Santiago Lopez
be w ritten until those three Exhibits A, A-1, and A-2 w ere
presented to you? — A. About nine or ten minutes
approximately.
Q. The time to make it clean? — A. Yes, sir.
Q. Where w ere you during that time? — A. In the room of D.
Tomas Rodriguez.
Q. Were you talking w ith him during that time. — A. Yes, sir.
Q. About w hat things w ere you talking w ith him? — A. He
w as asking me about my health, that of my family how my
family w as my girl, w hether w e w ere living in Pasay, he
asked me about the steamer Ildefonso,he said that it w as a
pity that it had been lost because he knew that my father-
in-law w as the ow ner of the steamer Ildefonso.
x x x x x x x x x
Q. When those documents, Exhibit A, A-1, and A-2, that is
the original and tw o copies of the w ill signed by D. Tomas
Rodriguez w ere w ritten clean, w ill you please tell w hat
happened? — A. When Santiago Lopez gave them to me
clean, I approached D. Tomas Rodriguez and told him: Don
Tomas, here is this w ill w hich is ready for your signature.
Q. What did D. Tomas do w hen you said that his w ill you
w ere show ing to him w as ready? — A. The first thing he
asked w as: the w itnesses? Then I called the w itnesses —
Gentlemen,please come forward,and they came forw ard,
and I handed the documents to D. Tomas. D. Tomas got up
and then took his eyeglasses, put them on and as he saw
that the electric lamp at the center w as not sufficiently
clear, he said: 'There is no more light;' then somebody came
forw ard bringing an electric lamp.
Q. What did D. Tomas do w hen that electric lamp w as put in
place? — A. The eyeglasses were adjusted again and then
he began to read, and as he could not read much for a
long time, for he unexpectedly felt tired and took off the
eyeglasses, and as I saw that the poor man w as tired, I
suggested that it be read to him and he stopped reading
and I read the w ill to him.
Q. What happened after you had read it to him? — A. He
said to me,'Well, it is all right. It is my w ish and my w ill. Don't
you have any pen?' I asked a pen of those w ho w ere there
and handed it to D. Tomas.
Q. Is it true that Tomas Rodriguez asked at that time 'What is
that w hich I am going to sign?' and Luz Lopez told him: 'It is
in connection w ith the complaint against Castito?' — A. It is
not true, no, sir.
Q. During the signing of the w ill, did you hear Luz Lopez say
anything to Tomas Rodriguez? — A. No, Sir, she said nothing.
Q. According to you, Tomas Rodriguez signed of his ow n
accord? — A. Yes, sir.
Q. Did nobody tell him to sign? — A. Nobody.
Q. What happened after the signing of the w ill by Tomas
Rodriguez? — A. I called the w itnesses and w e signed in the
presence of each other and of Tomas Rodriguez.
Q. After the signing of the w ill, did you have any
conversation w ith Tomas Rodriguez? — A. Doctor Calderon
asked D. Tomas Rodriguez some questions.
Q. Do you remember the questions and the conversation
held betw een Doctor Calderon and D. Tomas after the
signing of the w ill? — A. I remember that afterw ards Doctor
Calderon talked to him about business. He asked him how
the business of making loans at 18 per cent. It seems that
Tomas Rodriguez answ ered: That loan at 18 per cent is
illegal, it is usury. (S. R., p. 38.)
In addition to the statements under oath made by M r. Legarda, an
architect and engineer in the Bureau of Public Works and professor of
engineering and architecture in the University of Santo Tomas,suffice it
to say that Luz Lopez de Bueno denied categorically the statements
attributed to her by Doctor Bonoan (S. R., p. 568). In this stand, she is
corroborated by Doctor Calderon, Domingo, and Herrera, the
attending physicians. On this point, Doctor Calderon the Director of
the Philippine General Hospital and Dean of the College of M edicine
in the University of the Philippines, testified:
M r. ARANETA: Q. What have you seen or heard w ith regard
to the execution of the w ill?
Dr. CALDERON: A. M r. Legarda handled the will to D. Tomas
Rodriguez. D. Tomas asked for his eyeglass, w anted to read
and it w as extremely hard for him to do so. M r. Legarda
offered to read the w ill, it w as read to him and he heard
that in that w ill Vicente Lopez and Luz Lopez w ere
appointed heirs; w e also saw him sign that w ill, and he
signed not only the original but also the other copies of the
w ill and w e also saw how the w itnesses signed the w ill; w e
heard that D. Tomas asked for light at that moment; he
heard that D. Tomas asked for light at that moment; he w as
at that time in a perfect mental state. And w e remained
there after the w ill was executed. I asked him, 'How do you
feel, how are you? Well I am well,' he answ ered.' How is the
business? There is a crisis at there is one good business,
namely,that of making loans at the rate of 18 per cent, 'and
he answ ered, 'That is usury.; When a man answ ers in that
w ay, ' That is usury it show s that he is all right.
Q. Were you present w hen M r. Legarda handed the w ill to
him? — A. Yes, sir.
Q. Did any person there tell Don Tomas that w as a
complaint to be filed against one Castito? — A. No, sir, I
have not heard anything of the kind.
Q. It w as said here that w hen the will was handed to him, D.
Tomas Rodriguez asked w hat that was which he w as to sign
and that Luz Lopez answ ered, 'That is but a complaint in
connection w ith Castito.' Isthat true? — A. I have not heard
anything of the kind.
Q. Had anybody told that to the deceased,w ouldyou have
heard it? A. Yes, sir.
Q. Was Luz Lopez there? — A. I don't remember having seen
her; I am not sure; D. Santiago Lopez and the three w itnesses
w ere there; I don't remember that Luz Lopez w as there.
Q. Had anybody told that to the deceased,w ouldyou have
heard it? — A. Yes, sir.
Q. Do you remember w hether he w as given a pen or he
himself asked for it? — A. I don't know ; it is a detail w hich I

14. 14
don't remember well;so that w hether or not he was given a
pen or he himself asked for it, I do not remember.
Q. But did he sign w ithout hesitation ? — A. With no
hesitation.
Q. Did he sign w ithout anybody having indicated to him
w here he w as to sign? — A. Yes, w ithout anybody having
indicated it to him.
Q. Do you know w hether D. Tomas Rodriguez asked for more
light before signing? — A. He asked for more lights,as I have
said before.
Q. Do you remember that detail? — A. Yes, sir. They first
lighted the lamps, but as the light w as not sufficient, he
asked for more light.
Q. Do you remember very well that he asked for light? — A.
Yes, sir. (S. R. p.993).
A clear preponderance of the evidence exists in favor of the
testimony of Vicente Legarda,corroborated as it is by other w itnesses
of the highest standing in the community. The only explanation w e
can offer relative to the testimony of Doctor Bonoan is that possibly he
may have arrived earlier than the others w ith the exception of Luz
Lopez de Bueno,and that Luz Lopez de Bueno may have made some
sort of an effort to influence Tomas Rodriguez. There is how ever no
possible explanation of the statement of Doctor Bonoan to the effect
that no one read the w ill to Rodriguez w hen at least five other persons
recollect that Vicente Legarda read it to him and recall the details
connected w ith the reading.
There is one curious occurrence w hich transpired shortly after the
making of the w ill w hich should here be mentioned. It is that on
January 7, 1923 (1924), Luz Lopez de Bueno signed a document in
favor of Doctor Bonoan in the amount of one thousand pesos
(P1,000). This paper reads as follow :
Be it know by t hese present :
That I, Luz Lopez de Bueno in consideration of the services
w hich at my instance w ere and w ill w hen necessary be
rendered by Dr. Elias Bonoan in connection w ith the
execution of the w ill of my uncle,Don Tomas Rodriguez and
the due probate thereof, do hereby agree to pay said
doctor, by w ay of remuneratory donation, the sum of one
thousand pesos (P1,000),Philippine currency,as soon as said
services shall have been fully rendered and I shall be in
possession of the inheritance w hich in said w ill is given to me.
In w itness w hereof, I sign this document w hich w as freely
and spontaneously executed by me in M anila, this January
7, 1923.
(Sgd.) LUZ LOPEZ DE BUENO
(Exhibit 1)
There is a sharp conflict of testimony, as is natural betw een Doctor
Bonoan and Luz Lopez de Bueno relative to the execution of the
above document. We shall not attempt to settle these differences as
in the final analysis it w ill not affect the decision one w ay or the other.
The most reasonable supposition is that Luz Lopez de Bueno
imprudently endeavored to bring over Doctor Bonoan to her side of
the race by signing and giving to him Exhibit 1. But the event cannot
easily be explained aw ay.
Tomas Rodriguez passed aw ay in the Philippine General Hospital, as
w e said on February 25, 1924. Not even prior to his demise the tw o
actions in the Lopez family had prepared themselves for a fight over
the estate. The Luz Lopez faction had secured the services of Doctor
Domingo,the physician in charge of the Department of Insane of San
Lazaro Hospital an Assistant Professor of Nervous and M ental Diseases
in the University of the Philippines, as attending physician; as
associated w ith him for purposes of investigation Dr. Fernando
Calderon the Director of the Philippine General Hospital and Dr.
Florentino Herrera,a physician in active practice in the City of M anila;
and had arranged to have tw o members of the medical fraternity,
Doctors De Asis and Bonoan as attesting w itnesses. The M argarita
Lopez faction had taken equal precautions by calling a w itnesses in
the guardship proceedings Dr. Six to de los Angeles Professor and Chief
of the Department of Legal M edicine in the University of the
Philippines, and Dr. Samuel Tietze, w ith long experience in mental
diseases;thereafter by continuing Doctors de Los Angeles and Tietze
to examine Tomas Rodriguez and by associating with them Dr. William
Burke, a w ell-know n physician of the City of M anila. Skilled law yers
w ere available to aid and abet the medical experts. Out of such
situations, do w ill contests arise.
An examination of the certificates made by thetwo sets of physicians
and of their testimony show s that on most facts they concur. Their
deductions from these facts disclose a substantial divergence of
opinion. It is a hopeless task to try to reconcile the view s of these
distinguished gentlemen w ho honestly arrived at definite but
contradictory conclusions. The best that w e can do under the
circumstances is to set forth the findings of the Calderon committed
on the hand and of the De Los Angeles committee on the other.
Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez
individually and jointly before the date when thewill w as executed. All
of them,as w e have noticed were,present at the signing of the will to
note the reactions of the testator. On the same day that the w ill w as
accomplished, the three doctors signed the follow ing certificate:
The undersigned,Drs. of M edicine,w ith offices in the City of
M anila,and engaged in the practice of their profession do
hereby certify:
That they have jointly examined M r. Tomas Rodriguez,
confined in the General Hospital, floor No. 3, room No. 361
on three different occasion and on different days and have
found that said patient is suffering from anemia, hernia
inguinal, chronic dyspepsia and senility.
As to his mental state theresult of the different tests to which
this patient w as submitted is that his intellectual faculties are
sound, except that his memory is w eak, w hich is almost a
loss for recent facts, or events w hich have recently
occurred, due to his physical condition and old age.
They also certify that they w ere present at the time he
signed his w ill on January 3, 1924, at 1:25 p.m. and have
found his mental state in the same condition as w as found
by the undersigned in their former examination and that in
executing said w ill the testator and full know ledge of the
contents thereof.
In testimony whereof,w e sign in M anila this January 3, 1924.
(Sgd.) FLORENTINO HERRERA
Tuberias 1264
Quiapo
(Sgd.) Dr. FERNANDO CALDERON
General Hospital
M anila

15. 15
(Sgd.) Dr. ELIAS DOM INGO
613 Remedios
M alate
(Exhibit E in relation w ith Exhibits C and D.)
Doctor Calderon w hile on the w itness-stand expressed a
definite opinion as to the mentality of Tomas Rodriguez What
follow s is possibly the most significant of the doctor's
statements:
Dr. CALDERON testifying after interruption:
A. I w as naturally interested in finding out the true mental
state of Tomas Rodriguez and that was the chief reason why
I accepted and gave my cooperation to M essrs. Elias
Domingo and Florentino Herrera because had I found that
Tomas Rodriguez and Florentino Herrera because had I
found that Tomas Rodriguez w as really insane,I should have
ordered his transfer to the San Lazaro Hospital or to other
places, and w ould not have left him in the General Hospital.
Pursuant to my desire, I saw Tomas Rodriguez in his room
alone tw ice to have interviews with his,he begging a person
w hom I knew since several years ago; at the end of the
interview s I became convinced that there w as nothing
w rong w ith him; I had not seen anything indicating that he
w as insane and for this reason I accepted the request of my
companions and joined them; w e have been on five
different occasions examining Tomas Rodriguez jointly from
the physical standpoint but chiefly from the standpoint of his
mental state; I have been there w ith M essrs. Herrera and
Elias Domingo, examining Tomas Rodriguez and submitting
to a mental test on the 28, 29, 10 and 31 of December and
the 22nd of January, 1924 — five consecutive days in w hich
he have been together besides my particular visits.
Q. Will you place state the result of the observation you
made alone before those madeby the threeof you jointly?
— A. I asked Tomas Rodriguez some questions w hen I w ent
alone there,I asked him w ere he w as living formerly and he
w ell remembered that in Intramuros, Calle Real; I asked him
w hether he remembered one Calderon w ho w as living in
the upper floor of the house and then he told me yes; than I
asked him about his tenant by the name of Antonio Jimenez
and he told me yes, — now I remember that he had tw o
daughters,M atilde and Paz. Then I told him that I had been
living in the house of the gentlemen, Antonio Jimenez
already dead — in the upper story of the house belonged to
Tomas Rodriguez; I told him that Antonio Jimenez w as his
tenant of the upper story, that is that he w as living on the
ground floor and Antonio Jimenez upstairs and he
remembered all of this I also began to talk of my brother,
Felipe Calderon, w ho he said of course that he knew ; he
rememberedhim because he w as his companion and w as
a successful attorney. This was when I had an interview w ith
him. Then in order to observe better and to be sure of my
judgment or opinion about the mental state of Tomas
Rodriguez, I saw him again and w e began to speak of
something w hich I don't remember now.In fine,w e talked of
things of interest and as I had finally accepted the request
of Drs. Elias Domino and Florentino Herrera to join then the
first and second time that Herrera, Domingo and myself
w ent there, no stenographic notes w ere taken of w hat
happened there.
Q. So that before joining Doctors Herrera and Domingo you
had already paid tw o visits to the patient? — A. Yes, sir.
Q. From the result f the conversation you had w ith Tomas
Rodriguez on those tw o visits w hat is your opinion as to his
mental capacity? — A. That he w as sick;that he w as w eak,
but I have found absolutely no incoherence in his ideas; he
answ ered my questions w ell and as I w as observing him
there w ere times w hen he did not remember things of the
present — because this must be admitted — but on the
other hand he had a w onderful memory of past events; in
talking w ith him, you w ould not notice in the conversation
any alteration in his mind nor that man had lost the
reasoning pow er or logic.
Q. Did you notice any loss of memory, or that his memory
w as w eakening about things of the past? — A. About things
of the past, I mean that you talk to him now about specific
matters, and after about five or ten minutes he no longer
remembers w hat had been talked of.
x x x x x x x x x
Q. Do you remember the conversation you had w ith him for
the first time w hen the three of you paid a visit to the
patient? — A. I don't remember the details, but I do
remember the questions I put to him. I asked D. Tomas
Rodriguez: You are an old man aged, sick: Yes, I am thinking
to make a w ill. But w hy don't you decide? There is no hurry
there is time to make a w ill, 'he said. Then in case you
decide to make a w ill,to w hom are you goingto leaveyour
property? Don't you have any relatives? I have a relative,
Vicente Lopez,my first cousin, and M argarita Lopez my first
cousin they are brothers.' In that case, to w hom, do you
w ant to leave your property? Why, I don't have much, very
little, but I am decided to leave it to my cousin, Vicente
Lopez and his daughter Luz Lopez. Why w ould you not give
anything to M argarita Lopez? No because her husband is
very bad, 'to use his exact language is very bad.'
Q. Did you talk w ith him on that occasion about his estate?
— A. Yes, sir, he told me that he had three estates, — one on
Calle M agallanes, another on Calle Cabildo and the third
on Calle Juan Luna and besides he had money in the
M onte de Piedad and Hogar Filipino.
x x x x x x x x x
Q. From the question made by you and the answ ers given
by M r. Tomas Rodriguez on that occasion, w hat is your
opinion as to his mental capacity? — A. The follow ing: That
the memory of Tomas Rodriguez somew hat failed as to
things of the present,but is all right w ith regard to matters or
facts of the past; that his ideas w ere incoherent; that the
thought w ith logic,argued even w ith pow er and generally
in some of the interview s I have arrived at the conclusion
that Tomas Rodriguez had an initiative of his ow n, did not
need that anybody should make him any suggestion
because he answ ered in such a w ay that if you permit me
now to show you my stenographic notes, they w ill prove to
you conclusively that he had an initiative of his ow n and
had no need of anybody making him any question. (S. R. p.
72.)
Doctor Elias Domingo, w ho w as the attending physician for Tomas
Rodriguez throughout all the time that Rodriguez in the hospital had
examined him,w as likewise certain that Rodriguez possessed sufficient
mentality to make a w ill. Among other things, Doctor Domingo
testified:
ARANETA: Q. Have you know n D. Tomas Rodriguez?
Dr. DOM INGO: A. Yes, sir.
Q. Did you attend D. Tomas Rodriguez as physician? — A.
Yes, sir.

16. 16
Q. When did you begin to attend him as physician? — A. On
November 28, until his death.
Q. On November 28 or October 28, 1923, do you
remember? — A. I had been attending him as physician
from November 28th although it true that I had opportunities
to see and examine him during the months of October and
November.
Q. What w as the object of your visits or attendance during
the months of October and November? — A. It w as for the
purpose of observing his mental state.
Q. Did you really examine his mental condition or capacity
during the months of October and November? — A. Yes, sir.
Q. How many times did you visit him? — A. I don't remember
exactly but I visited him about five or six times.
x x x x x x x x x
Q. Please tell us the result of your examination during those
months of October and November? — A. I examined him
physically and mentally; I am not going to tell here the
physically result but the result of the mental examination,
and that is: General Conduct: In most of the times that I
have seen him I found him lying on his bed, smoking a
cigarette and asked for a bottle of lemonade from time to
time;I also observed that he w as very careful w hen throwing
the ash of the cigarette,seeing to it that it did not fall on the
blankets; he also w as careful not to throw the stub of the
cigarette in any place to avoid fire; I made more
observations as to his general conduct and I found that
sometimes Don Tomas could move w ithin the place
although w ith certain difficulty. On tw o occasions I found
him seated, once seated at the table, seated in the chair,
and other on a rocking chair. I also examined his manner of
talking and to all questions that I put to him he answ ered
w ith a coherence and in a relevant manner, although
sometimeshe showed eagerness and certain delay.I based
these points of my declaration on the questions w hich are
usually asked w hen making a mental examination for
instance I asked him, What is your name, 'and he correctly
answ ered Tomas Rodriguez; I asked him if he w as married
and he answ ered 'No;' I asked him his profession and he
answ ered that formerly he w as an attorney but that at the
time I w as making the examination he was not practising the
profession;I asked him w ith w hat he supported himself and
he said that he lived upon his income, he said verbatim, 'I
live on my income.' I also asked him w hat the amount of him
income w as and he answ ered that it w as about P900; I
asked him w hat the source of this income w as and he said
that it came from his property.
Q. Did you ask him about his property? — A. No, at that
time.
Q. Proceed. — A. I also observed his emotional status and
effectivity. I found it rather superficial,and he oftentimesgot
angry due to his physical disease; I asked him if he had any
relatives and he answ eredcorrectly saying that he had. He
mentioned Vicente Lopez,M argarita Lopez, and Luz Lopez.
As to his memory. His memory of the past. He very easily
rememberedpast events and w hen he described them he
did it w ith such pleasure the he used to smile afterwards — if
it w as a fact upon w hich one must smile, His memory of
recent facts w as very much lessened. I say this because on
various occasions and not having know n me when he had a
better memory,after I had seen him thrice he remembered
my name and he recognized me. Insight and judgment. I
arrived at the conclusion that he had fair know ledge of
himself because he knew that he w as sick and could not be
moving w ith ease, but he believed that he could perform
w ith sufficient ease mental acts; his judgment w as also all
right because I asked him this question: 'Supposing that you
could find a bill of P5 in the vestibule of a hotel, w hat w ould
you do w ith it ?' He told me that he w ould take the bill and
give it to the manager in order that the latter may look for
the ow ner if possible. His reasoning. I found that he show ed
a moderated retardation in the flow of his thought,
especially w ith regard to recent events, but w as quite all
right as to past events, His capacity, He believed that he
w as capable of thinking properly although w hat did not
permit him to do so w as his physical decrepit condition. The
conclusion is that his memory is lost for recent events tho not
totally and diminution of his intellectual vigor. This is in few
w ords the result of my examination.
Tomas Rodriguez w as likewise examined thoroughly by Doctors De los
Angeles, Tietze,and Burke. Doctor De los Angeles had been a w itness
in the gurardianship proceedings and had seen the patient of
November 6 and 7,1923. Doctor Tietze had also been a w itness in the
guardianship case and had visited the patient on November 9 and 12,
1923, and on January 15, 1924. Doctors Tietze and Burke together
examined Rodriguez on January 17, 20, and 24, 1924. The three
physicians conducted a joint examination result, on M arch 15, 1924,
they prepared and signed the follow ing:
M EDICAL CERTIFICATE
In the M atter of Tomas Rodriguez y Lopez, male, 76 years of
age, single and residing or being confined in the Philippine
General Hospital.
We, the undersigned Doctors, Sixto de los Angeles, W. B.
Burke, and Samuel Tietze, do hereby certify as follow s:
1. That w e are physicians, duly registered under the Medical
Act, and are in the actual practice of the medical
profession in the Philippines.
2. That on January 27th and 28th, and February 10th, 1924,
at the Philippine General Hospital,w e three have w ith care
the diligence jointly and personally examined the person of
said Tomas Rodriguez y Lopez;and previous to these dated,
w e have separately and partly jointly observed and
examined said patient on various occasions; Dr. Sixto de los
Angeles, at the patient's home,246 M agallanes St., M anila,
on November 6th and 7th , 1923; Dr. Samuel Tietze, at the
patient's home on November 9th and 12th,1923,and at the
Philippine General Hospital no January 17th, 20th, and 24,
1924; and as a result of the medical examinations and the
history of the case w e found and hereby certify to the
follow ing conclusions:
(a) That he w as of unsound mind suffering from senile
dement ia, or of mental impairment exceeding to a
pathological extent the unusual conditions and changes
found to occur in the involutional period of life.
(b) That he w as under the influence of the above condition
continuously, at least from November, 1923, till the date of
our joint reexamination, January 27th and 28th, and
February 10th, 1924; and that he w ould naturally have
continued w ithout improvement, as these cases of insanity
are due to organic pathological changes of the brain. This
form of mental disease is progressive in its pathological
tendency,going on to progressive atropy and degeneration
of the brain, the mental symptoms, of course, running
parallel w ith such pathological basis.

17. 17
(c) That on account of such disease and conditions his mind
and memory w ere so greatly impaired as to make him
unable to know or to appreciate sufficiently the nature,
effect, and consequences of the business he w as engaged
in; to understand and comprehend the extent and
condition of his properties;to collect and to hold in his mind
the particulars and details of his business transactions and his
relations to the persons w ho w ere or might have been the
objects of his bounty;and to free himself from the influences
of importunities, threats and ingenuities, so that w ith a
relatively less resistance, he might had been induced to do
w hat others w ould not have done.
3. We have diagnosed this case as senile dement ial of the
simple type,approaching the deteriorated stage upon the
follow ing detailed mental examination:
(a) Disorder of memory. — There was almost an absolute loss
of memory of recent events, to the extent that things and
occurrences seen or observed only a few minutes previously
w ere completely forgotten. Faces and names of person
introduced to him w ere not remembered after a short
moment even without leaving his bedside . He show ed no
comprehension of the elemental routine required in the
management of his properties,i.e.: w howere the lessees of
his houses, w hat rents they w ere paying, w ho w as the
administrator of his properties, in w hat banks he deposited
his money or the amount of money deposited in such banks.
Regarding his personal relation, he forgot that M r. Antonio
Ventura is the husband of his nearest w oman cousin; the
M rs. M argaritaLopez was married,saying that the latter was
single or spinster,in spite of the fact that formerly, during the
past tw enty-fiveyears, he w as aw are of their marriage life,
He did not know the names of the sons and daughters of Mr.
Vicente Lopez, one of his nearest relatives, even failing to
name M rs. Luz Lopez de Bueno, a daughter of said Vicente
Lopez, and w ho now appears to be the only living
beneficiary of his w ill. He also stated that M r. Vicente Lopez
frequently visited him in the hospital, though the latter died
on January 7th, 1924. He did not recognized and remember
the name and face of Doctor Domingo, his ow n physician.
How ever, the memory for remote events w as generally
good,w hich is a characteristic symptom of senile dementia.
(b) Disorient at ion of t ime, place and persons. — He could
not name the date w hen asked (day or month); could not
name the hospital w herein he w as confined; and failed to
recognize the fact that Doctor Domingo w as his physician.
(c) Disorders of percept ion. — He w as almost completely
indifferent to w hat was going on about him. He also failed to
recognize the true value of objects show n him, that is he
failed to recognized the 'Saturday Evening Post' nor w ould
he deny that it w as a w ill w hen presented as such. He also
failed to show normal intellectual perception. M aking no
effort to correlate facts or to understand matters discussed
in their proper light.
(d) Emot ional deteriorat ion. — The patient w as not know n
during his time of physical incapacity to express in any w ay
or lament the fact that he w as unable to enjoy the
happiness that w as due him w ith his w ealth. As a matter of
fact, he show ed complete indifference. He show ed loss of
emotional control by furious outbreaks over trifling matter
and actually behaved like a child; for example, if his food
did not arrive immediately of w hen his cigar w as not lit soon,
he w ould becomes abusive in his language and show
marked emotional outburst. If the servants did not
immediately answer his call, he w ould break dow n and cry
as a child.
(e) Sympt omsof decreased int ellect ual capacit y. — There
w as a laxity of the internal connection of ideas. The patient
has show n no insight regarding his ow n condition. He did not
appreciate the attitudeof the parties concerned in his case;
he w ould on several occasion become suspicious and fail to
comprehend the purpose of our examination. He w as
inconsistent in his ideas and failed to grasp the meaning of
his ow n statements. When questioned w hether he w ould
make a w ill,he stated to Doctor Tietze that he intended to
bequeath his money to San Juan de Dios Hospital and
Hospicio de San Jose. When He w as informed,however,that
he had made a w ill on January 31, 1924, he denied the
latter statement,and failed to explain the former. Although
for a long time confined to bed and seriously ill for a long
period, he expressed himself as sound physically and
mentally, and in the false belief that he w as fully able to
administer his business personally.
His impairment of the intellectual field w as further show n by
his inability, despite his know ledge of w orld affairs, to
appreciate the relative value of the statement made by
Doctor Tietze as follow s: 'We have here a cheque of P2,000
from the King of Africa payable to you so that you may
deposit it in the bank. Do you w ant to accept the cheque?'
His answ er w as as follows:'Now I cannot give my answ er. It
may be a surprise.' Such answ er given by a man after long
experience in business life, w ho had handled real estate
property,w ell versed in the transaction of cheques,certainly
show s a breaking dow n of the above field. No proper
question w ere asked w hy the cheque w as given by the
King, w ho the King w as,w hy he was selected by the King of
Africa, or if there is a King of Africa at present. He further
show s doubt in his mental capability by the follow ing
questions and answ ers:
"M ARCAIDA: P. ¿Tiene usted actualmente algún
asunto en los tribunales de justicia de M anila? -- R.
No recuerdo en este momento.
"P. De tener usted algún asunto propio en los
tribunales de justicia de M anila, ¿a qué abogado
confiaría usted la defensa del mismo?--R. Al Sr.
M arcaida, como conocido antiguo.
"P. ¿Ha hablado usted y conferenciado alguna
vez o varias veces en estos días,o sea desde el 25
de octubre de 1923 hasta hoy, con algún
abogado para que le defendiera algún asunto
ante el Juzgado de Primera Instancia de M anila?--
R. Con ninguno, porque en caso de nombrar,
nombraría al Sr. M arcaida. (P. 5, deposition, Nov.
19, 1923.)
"ARANETA: P. ¿No recuerda usted que usted me
ha encomendado como abogado para que me
oponga a que le declaren a usted loco o
incapacitado?--R. Sí, señor, quien ha solicitado?
(P. 9, deposition, Nov. 19, 1923.)
"Dr. DOM INGO: P. ¿Don Tomás, me conoce
usted? ¿Se acuerda usted que soy el Doctor
Domingo?--R. Sí. (P. 7, sten. N., Jan. 28, 1924.)
"P. ¿Quién soy,Don Tomás, usted me conoce?--R.
No sé. (P. 6, sten. N., Feb. 10, 1924.)
"Dr. ÁNGELES: P. ¿M e conoce usted,D. Tomás?--R.
Le conozco de vista. (P. 6, sten. N., Jan. 28, 1924.)

18. 18
"P. Nos vamos a despedir ya, Don Tomás, de
usted. Yo soy el Doctor Ángeles, ¿me conoce
usted?--R. De nombre.
"P. Este es el Doctor Burke, ¿le conoce usted?--R.
De nombre.
"P. Este es el Doctor Domingo,¿le conoce usted?--
R. De vista.
"P. Este es el Doctor Burke, ¿recuerda usted su
nombre?--R. No. (P. 10, sten. N., Jan. 28, 1924.)
"P.¿Usted conoce a este Doctor? (Señalando al
Doctor Burke).--R. De vista; su nombre ya lo he
olvidado, ya no me acuerdo.
"P.¿Usted nos ve a los tres? (Doctores Ángeles,
Burke y Tietze).--R. Ya lo creo.
"Dr. BURKE: P. ¿Qué profesión tenemos?
(Señalando a los Sres. Ángeles, Burke y Tietze).--R.
YO creo que son doctores.
"P. ¿Y lso dos? (Señalando a los Doctores Ángeles
y Tietze).--R. No. sé.
"P. ¿Y este señor? (Señalando al Doctor Ángeles).-
-R. No me acuerdo en este momento.(P. 4. And 5,
sten. N., Feb. 10, 1924.)
(f) Ot her fact sbearing upon t hehist ory of t he case obtained
by invest igat ion of Doct or Angeles:
I. Family Hist ory. — His parents w ere noted to be of nervous
temper and irritable.
II. Personal history. — He w asa law yer,but did not pursue his
practice, devoting the greater part of his life to collecting
antiquities, He w as generally regarded by his neighbors as
miserly and erratic in the ordinary habits of life. He lead a
very unhygienic life, making no attempt to clean the filth of
dirt that w as around him. He w as neglectful in personal
habits. On April, 1921, he suffered an injury to his forehead,
from w hich he became temporarily unconscious, and w as
confined in the Philippine General Hospital for treatment.He
frequently complained of attacks of dizziness and
headache, follow ing this injury;suffered form a large hernia;
and about tw oyears ago,he w asfined for failure in filing his
income tax, from w hich incident, w e have reason to
believe, the onset of his mental condition took place. This
incident itself can most probably be considered as a failure
of memory. His condition became progressively worse up to
his death.
4. The undersigned have stated all the above facts
contained in this certificate to the best of our know ledge
and belief.
M anila, P.I., M arch 15, 1924.
(Sgd.) SIXTO DE LOS ANGELES
W.B. BURKE, M .D.
SAM UEL TIETZE
(Exhibit 33 in relation w ith Exhibits 28 and 29.)
Another angle to the condition of the patient on or about January 3,
1924,is disclosed by the treatment record kept daily by the nurses, in
w hich appear the nurse's remarks. (Exhibits 8-A, 8-B, and 8-C.) In this
connection, the testimony of the nurses is that Rodriguez w as in the
habit for no reason at all of calling "M aria,w here are my 50 centavos,
w here is my key." In explanation of the observation made by the
nurses, the nurse Apolonio Floreza testified.
Direct questions of Attorney OCAM PO:
Q. Among your observations on the 1st of January,1924,you
say 'w ith pains all over the body, and uttered some
incoherent w ords of the same topics w henever is
aw akened.' How could you observe that he had pains all
over the body?
APOLONIO FLOREZA, nurse: A. I observed that by the fact
that w henever I touched the body of the patient he
complained of some pain.
Q. On w hat part of the body did you touch him? — A. On all
the parts of his body.
x x x x x x x x x
Q. How did you touch him, strongly or not? — A. Slightly.
Q. When you touched him slightly,w hat did he do? — A. He
said that it w as aching.
Q. What w ords did he say w hen,according to your note, he
uttered incoherent words whenever he awakes? — A. As for
instance, 'M aria,' repeating it 'Where are my 50 centavos,
w here is my key?'
Q. Did you hear him talk of M aria? — A. Only the w ord
M aria.
Q. How long approximately w as he talking uttering the
name of 'M aria, Where are my 50 centavos,' and w here is
my key? — A. For tw o or three minutes.
Q. Can you tell the court w hether on those occasions w hen
he said the name of M aria he said other w ords and w as
talking w ith somebody? — A. He w as talking to himself.
Q. This remark on Exhibit 8-B w hen w as it w ritten by you? A.
January 2, 1924.
Q. In the observation correspondingly to January 2,1924 you
say, 'With pains over the body,' and later on talked too
much w henever patient is aw akened.' How did you happen
to know the pain w hich you have noted here? A. The pains
all over the body, I have observed them w hen giving him
baths.
Q. Besides saying that it ached w hen you touched the
body,do you know w hether he did any extraordinary thing?
A. You mean to say acts?
Q. Acts or w ords? A. Yes, sir, like those w ords w hich I have
already said w hich he used to say — M aria, the key, 50
centavos.
Q. You say that he called M aria. What did he say about
M aria on that date January 2, 1924? — A. He used to say
M aria w here is M aria?

19. 19
Q. On that date January 2,1924, did you answ er him w hen
he said M aria? — A. No sir.
Q. In this observation of yours appearing on page 8-C you
say among other things w ith pain all over the body and
shouted w henever he is given injection.' Did you really
observe this in the patient? — A. Yes, sir.
Q. How did he shout?
ARANETA: Objection as being immaterial.
COURT: Overruled.
ARANETA: Exception.
A. In a loud voice.
Q. Besides shouting do you remember w hether he said
anything? — A . He repeated the same w ords I have said
before — M aria the 50 centavos the key.
Q. When did this observation occur w hich appear on page
8-C? — A. On January 3, 1924. (S. R. p. 5595.)
On certain facts pertaining to the condition of Tomas Rodriguez there
is no dispute. On January 3, 1924, Rodriguez had reached the
advanced age of 76 years. He w as suffering from anemia, hernia
inguinal, chronic dypsia, and senility. Physically he w as a w reck.
As to the mental state of Tomas Rodriguez on January 3,1924, Doctors
Calderon, Domingo and Herrera admit that he w as senile. They,
together w ith Doctors De los Angeles, Tietze, and Burke, further
declare that his memory how ever for remote events w as generally
good. He w as given to irrational exclamations symptomatic of a
deceased mind.
While, how ever, Doctors Calderon Domingo, and Herrera certify that
the intellectual faculties of the patient are "sound, except that his
memory is w eak," and that in executing the w ill the testator had full
understanding of the act he w as performing and full know ledgeof the
contents thereof,Doctors De Los Angeles,Tietze and Burke certify that
Tomas Rodriguez w as of unsound mind and that they diagnosed his
case as senile dement ia of the simple type approaching the
deteriorated stage. Without attempting at this stage to pass in
judgment on the antagonistic conclusions of the medical w itnesses, or
on other disputed point, insofar as the facts are concerned, a
resolution of the case comes dow n to this: Did Tomas Rodriguez on
January 3, 1924,possess sufficient mentality to make a w ill, or had he
passed so far along in senile dement ia as to require the court to find
him of unsound? We leave the facts in this situation to pass on to a
discussion of the legal phases of the case.
B. Law . — The Code of Civil Procedure prescribes as a requisite to the
allow ance of a w ill that the testator be of "sound mind" (Code of Civil
Procedure,sec. 614). A "sound mind" is a "disposing mind." One of the
grounds for disallow ing a w ill is "If the testator was insane or otherw ise
mentally incapable of the execution." (Code of Civil Procedure, sec.
634 [2].) Predicated on these statutory provisions, this court has
adopted the follow ing definition of testamentary capacity:
"'Testamentary capacity is the capacity to comprehend the nature of
the transaction in w hich the testator is engaged at the time, to
recollect the property to be disposed of and the persons w ho w ould
naturally be supposed to have claims upon the testator, and to
comprehend the manner in w hich the instrument w ill distribute his
property among the objects of his bounty.'" (Bugnao vs. Ubag [1909],
14 Phil., 163, follow ed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The
mental capacity of the testator is determined as of the date of the
execution of his w ill (Civil Code, art. 666).
Various tests of testamentary capacity have been announced by the
courts only later to be rejected as incomplete. Of the specific tests of
capacity, neither old age, physical infirmities, feebleness of mind,
w eakness of the memory, the appointment of a guardian, nor
eccentricities are sufficient singly or jointly to show testamentary
incapacity. Each case rests on its ow n facts and must be decided by
its ow n facts.
There is one particular test relative to the capacity to make a w ill
w hich is of some practical utility. This rule concerns the nature and
rationality of the w ill. Is the w ill simple or complicated? Is it natural or
unnatural? The mere exclusion of heirs w ill not, how ever, in itself
indicate that the w ill w as the offspring of an unsound mind.
On the issue of testamentary capacity, the evidence should be
permitted to takea w iderange in order that all facts may be brought
out w hich w ill assist in determining the question. The testimony of
subscribing w itnesses to a w ill concerning the testator's mental
condition is entitled to great w eight w here they are truthful and
intelligent. The evidence of those present at the execution of the w ill
and of the attending physician is also to be relied upon. (Alexander
on Willis, vol. I, pp. 433, 484; Wharton & Stille's M edical Jurisprudence,
vol. I pp. 100 et seq.)
The presumption is that every adult is sane. It is only w hen those
seeking to overthrow the w ill have clearly established the charge of
mental incapacity that the courts w ill intervene to set aside a
testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689;
Bagtas vs. Paguio, supra.)
Counsel for the appellee make capital of the testator being under
guardianship at the time he made his w ill. Citing section 306 of the
Code of Civil Procedure and certain authorities, they insist that the
effect of the judgment is conclusive w ith respect to the condition of
the person. To this statement w e cannot w rite dow n our conformity.
The provisions of the cited section w ere taken from California, and
there the Supreme court has never held w hat is now urged upon us by
the appellee. The rule announced that in some states, by force of
statute, the finding of insanity is conclusive as to the existence of
insanity during the continuance of adjudication, is found to rest on
local statutes, of w hich no counterpart is found in the Philippines. (32
C.J., 647; Gridley vs. Boggs [1882], 62 Cal., 190; In the matter of the
Estate of Johnson [1881], 57 Cal., 529.) Even w here the question of
insanity is out in issue in the guardianship proceedings, the most that
can be said for the finding is that it raises a presumption of incapacity
to make a w ill but does not invaluable the testament if competency
can be show n. The burden of providing sanity in such case is cast
upon the proponents.
It is here claimed that the unsoundness of mind of the testator wasthe
result of senile dement ia. This is the form of mental decay of the aged
upon w hich w ill are most often contested. A New ton, Paschal, a
Cooley suffering under the variable w eather of the mind, the flying
vapors of incipient lunacy," w ould have proved historic subjects for
expert dispute. Had Shakespeare's King Lear made a will, w ithout any
question it w ould have invited litigation and doubt.
Senile dement ia usually called childishness has various forms and
stages. To constitute complete senile dement ia there must be such
failure of the mind as to deprive the testator of intelligent action,. In
the first stages of the diseases,a person may possess reason and have
w ill pow er. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's M edical
Jurisprudence, vol. I. pp. 791 et seq.;Schouler on Wills, vol. I,pp. 145 et
seq.)
It is a rather remarkable coincidence that of all the leading cases
w hich have gone forth from this court,relating to the testator having a
sound and disposing mind, and w hich have been brought to our
notice by counsel, every one of them has allowed the will,even when
it w as necessary to reverse the judgment of the trial court. A study of
these cases discloses a consistent tendency to protect the w ishes of

20. 20
the deceased w henever it be legally possible. These decisions also
show great tenderness on the part of the court tow ards the last w ill
and testament of the aged. (See Hernaez vs. Hernaez [1903], 1 Phil.,
689, per Arellano, C. J., In the matter of the w ill o f Butalid [1908] 10
Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per
Carson, J.; M acapinlac vs. Alimurong [1910], 16 Phil., 41, per Arellano,
C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent, J.; Galvez vs.
Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan
Quintin [1923], 44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson
[1922], 46 Phil., 701, per Villamor, J.) Because of their peculiar
applicability, w e propose to make particular mention of four of the
earlier cases of this court.
In the case of Hernaez vs. Hernaez supra the subject of the action w as
the w ill executed by Dona Juana Espinosa. The annulment of the w ill
w as sought first upon the ground of the incapacity of the testatrix. She
w as over 80 years of age, so ill that three days extreme unction, and
tw o days afterwards she died. Prior thereto she w alked in a stooping
attitude and gave contradictory orders," as a result of her senile
debility." The chief Justice reached the conclusion that neither from
the facts elicited by the interrogatories nor the documents presented
"can the conclusion be reached that the testatrix wasdeprived of her
mental faculties." The w ill w as held valid and efficacious.
In the case of In the matter of the w ill of Butalid, supra, the w ill w as
contested for the reason that Dominga Butalid at the date of the
execution of the document w as not in the date of the execution of
the document w as not in the free use of her intellectual pow ers, she
being over 90 years of age, lying in bed seriously ill, senseless and
unable to utter a single w ord so that she did not know w hat she w as
doing w hen she executed the will while thedocument wasclaimed to
have been executed under the influence and by the direction of one
of the heirs designated in the w ill. Yet after an examination of the
evidence in the w ill. Yet after an examination of the evidence in the
w ill. The Chief Justice rendered judgment reversing the judgment
appealed from and declaring the w ill presented for legalization to be
valid and sufficient.
In the case of Bugnao vs. Ubag, supra the court gave credence to the
testimony of the subscribing witnesses whosworepositively that at the
time of the execution of the w ill the testator w as of sound mind and
memory. Based on theseand other facts,M r. Justice Carson,speaking
for court, laid dow n the follow ing legal principles:
Betw een the highest degree of soundness of mind and
memory w hich unquestionably carries w ith it full
testamentary know n as insanity or idiocy there are
numberless degrees of mental capacity or incapacity and
w hile on one hand it had been held that mere w eakness of
mind or partial imbecility from disease of body, or from age,
w ill to render a person incapable of making a w ill a w eak or
feeble minded person may make a valid w ill provided he
has understanding and memory sufficient to enable him to
know w hat he is about and how or to w hom he is disposing
of his property' (Lodge vs. Lodge, 2 Houst. [Del.] 418); that,
"To constitute a sound be unbroken or unimpaired,
unshattered by disease or otherwise(Sloan vs. Maxwell, # N.
J. Eq., 563);that it has not been understood that a testator
must possess these qualities (of sound and disposing mind
and memory)in the highest degree. . . .Few indeed w ould
be the w ills confirmed it this is correct. Pain, sickness, debility
of body from age or infirmity, w ould according to its
violence or duration in a greater or less degree, break in
upon, w eaken,or derange the mind,but the derangement
must be such as deprives him of the rational faculties
common to man' (Den. vs. Vancleve, 5 N. J. L., 680); and
that Sound mind does not mean a perfectly balanced mind.
The question of soundness is one of degree' (Boughton vs.
Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25);on the other hand, it
has been held that testamentary incapacity does not
necessarily require that a person shall actually be insane or
of an unsound mind. Weakness of intellect, w hether it arises
from extreme old age, from disease, or great bodily
infirmities of suffering, or from all these combined, may
render the testator in capable of making a valid w ill,
providing such w eakness really disqualifies for from know ing
or appreciating the nature, effects, or consequences of the
act she is engaged in (M anatt vs. Scott, 106 Iow a, 203; 68
Am. St. Rep., 293, 302).
In the case of Nagtas vs. Paquio, supra, the record show s that the
testator for some fourteen or fifteen years prior to thetime of his death
suffered from a paralysis of the left side of his body, that a few years
prior to his death his hearing became impaired and that he had lost
the pow er of speech. How ever, he retained the use of his hand and
could w rite fairly w ell. Through the medium of signs, he w as able to
indicate his w ishes to his family. The w ill w as attacked n the ground
that the testator lacked mental capacity at the time of its execution.
The w ill w as nevertheless admitted to probate, M r. Justice Trent,
speaking for the court, announcement the follow ing pertinent legal
doctrines:
* * * There are many cases and authorities w hich w e might
cite to show that the courts have repeatedly held that mere
w eakness of mind and body, induced by age and disease
do not render a person incapable of making a w ill. The law
does not require that a person shall continue in the full
enjoyment and use of his pristine physical and mental
pow ers in order to executea valid w ill. If such w erethe legal
standard few indeed w ould be the number of w ills that
could meet such exacting requirements. The authorities,
both medical and legal are universal in the statement that
the question of mental capacity is one of degree and that
there are many graduations from the highest degree of
mental soundness to the low est conditions of diseased
mentality w hich are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is
as sacred as any other right w hich a person may exercise
and this right should be nullified unless mental incapacity is
established in a positive and conclusive manner. In
discussing the question of testamentary capacity, it is stated
in volume 28, page 70, of the American and English
Encyclopedia of Law that —
'Contrary to the very prevalent lay impression perfect
soundness of mind is not essential to testamentary capacity.
A testator may be afflicted w ith a variety of mental
w eakness, disorders or peculiarities and still be capable in
law of executing a valid w ill.' (See the numerous cases there
cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswel
on Insanity, section 365 and quoted w ith approval in
Campbell vs. Campbell (130 Ill. 466) as follow s:
To constitute a sound and disposing mind,it is not necessary
that the mind shall be w holly unbroken unimpaired or
unshattered by disease or otherw ise or that the testator
should be in the full possession of his reasoning faculties.
In note, 1 Jarnan on Wills, 38, the rule is thus stated:
The question is not so much, w hat w as the degree of
memory possessed by the testator as had, he a disposing
memory? Was he able to remember the property he w as
about to bequeth the manner of distributing it and the
object of his bounty? In a w ord,w erehis mind and memory
sufficiently sound to enable him to know and understand the
business in w hich he w as engaged at the time w hen he
executed his w ill.' (See authorities there cited)

21. 21
In Wilson vs. M itchell (101 Penn., 495), the follow ing facts
appeared upon the trial of the case: The testator died at the
age of nearly 102 years. In his early years he w as an
intelligent and w ell informed man. About seven years prior
to his death he suffered a paralytic stroke and from that
time his mind and memory w ere much enfeebled. He
became very dull of hearing and in consequence of the
shrinking of his brain he w as affected w ith senile cataract
causing total blindness. He became filthy and obscene in his
habits, although formerly he w as observant of the proprieties
of life. The court, in commenting upon the case, said:
Neither age,nor sickness, nor extreme distress,nor debility of
body w ill affect the capacity to make a w ill, if sufficient
intelligence remains. The failure of memory is not sufficient to
create the incapacity, unless it be total or extend to his
immediate family to property. . . .
x x x x x x x x x
Dougal (the testator) had lived over one hundred years
before he made the w ill and his physical and mental
w eakness and defective memory w ere in striking contrast
w ith their strength in the meridian of his life. He w as blind;not
deaf, but hearing impaired; his mind acted slow ly, he w as
forgetful of recent events, especially of names and
repeated questions in conversation; and sometimes, w hen
aroused from sleep or slumber,w ould seem bewildered. It is
not singular that some of those w ho had know n him w hen
he w as remarkable for vigor and intelligence are of the
opinion that his reason w as so far gone that he w as
incapable of making a w ill, although they never heard him
utter an irrational expression.
In the above case the w ill w as sustained. In the case at bar
w e might draw the same contract as w as pictured by the
court in the case just quoted. . . .
The particular difference betw een all of the Philippine case w hich are
cited and the case at bar are that in none of the Philippine cases w as
there any declaration of incomplicated and in none of them w ere the
facts quite as complicated as they are here. A case in point w here
the w ill w as contested, because the testator w as not of sound and
disposing mind and memory and because at the time of the making
of the w ill he w as acting under the undue influence of his brothers and
w here he had a guardian w hen he executed his w ill, is Ames' Will
([1902] 40 Ore.,495). Mr. Justice M oore, delivering the opinion of the
court, in part said:
It is contended by contestant's counsel that on the day said
pretended w ill purports to havebeen executed,Lowell w as
declared incompetent by a court w hich had jurisdiction of
the person and subject-matter and that the decree therein
appointing a guardian of his person and estate raises the
distable presumption that he did not possess sufficient
testamentary capacity at the time to overcome w hich
required evidence so strong as to leave no reasonable
doubt as to his capacity to make a valid w ill, and the
testimony introduced by the proponent beinginsufficient for
that purpose the court erred in admitting it to probate.
The appointment of a guardian of a person alleged to
be non compos ment is, by a court having jurisdiction must
necessarily create a presumption of the mental infirmity of
the w ard;but such decree does not conclusively show that
the testamentary capacity of the person under
guardianship is entirely destroyed and the presumption thus
created may be overcome by evidence proving that such
person at the time he executed a w ill w as in fact of sound
and disposing mind and memory: Stone vs. Damon, 12
M ass.,487;Breed vs. Pratt, 18 Pick, 115: In re Slinger's Will, 72
Wis., 22 (37 N. W. 236).
The testimony show s that the testator retained a vivid
recollection of the contents of the books he had read and
studied w hen he w as young but that he could not readily
recall to his mind the ordinary incidents of his later life. The
depth and intensity of mental impression alw ays depend
upon and are measured by the degree of attention given to
the perception of truth, w hich demands reflection; and
hence the inability of a person to recollect events and
hence the inability is evidence of mental decay, because it
manifest a w ant of power on concentration of the mind. The
aged live in the past and the impression retained in their
minds are those that w ere made in their younger days,
because at that period of their lives they w ere able to
exercise w ill power by giving attention. While the inability of
a person of advanced years to remember recent events
distinctly undoubtedly indicates a decay of the human
faculties, it does not conclusively establish senile dement ia,
w hich is something more than a mere loss of mental pow er,
resulting from old age and is not only a feeble condition of
the mind but a derangement thereof. . . . The rule is settled
in this state that if a testator at the time he executes his w ill
understand the business in w hich he is engaged and has a
know ledge of his property and how he w ishes to disposeof it
among those entitled to his bounty, he possess sufficient
testamentary capacity,notwithstanding his old age,sickness
debility of body, or extreme distress.
x x x x x x x x x
It is contented by contestant's counsel that if Low ell at the
time he executed thepretended will,w as not wholly lacking
in testamentary capacity,he w as,in consequence of age ill
health,debility of body and infirmity of w ill pow er, Andrew
and Joseph having know ledge thereof took advantage of
his physical and mental condition and unduly influenced
him to device and bequeth his property in the manner
indicated, attempting thereby todeprive the contestant of
all interest therein except such as w as given her by statute. .
. . Assuming that he w as easily persuaded and that his
brothers and the persons employed by them to care for him
took advantage of his enfeebled condition and prejudiced
his mind against the contestant did such undue influence
render the w ill thereforeexecuted void? . . . When a w ill has
been properly executed, it is the duty of the courts to
uphold it, if the testator possessed a sound and disposing
mind and memory and w as free from restraint and not
acting under undue influence notw ithstandingsympathy for
persons legally entitledto the testator's bounty and a sense
of innate justice might suggest a different testamentary
disposition.
Believing,as w e do,that the findings of the circuit court are
supported by the w eight of the testimony its decree is
affirmed.
Insofar as the law on testamentary capacity to make a w ill is
concerned and carrying alone one step further the question
suggested at the end of the presentation of the facts on the same
subject a resolution of the case comes dow n to this: Did Tomas
Rodriguez on January 3, 1924, possess sufficient mentality to make a
w ill w hich w ould meet the legal test regarding testamentary capacity
and have the proponents of the will carried successfully the burden of
proof and show n him to be of sound mind on that date?
II. UNDUE INFLUENCE
A. Fact s. — The w ill w as attacked on the further ground of undue
influence exercised by the persons benefited in the w ill in

22. 22
collaboration w ith others. Thetrial judge found this allegation to have
been established and made it one of the bases of his decision. it is
now for us to say if the facts justify this finding.
Tomas Rodriguez voluntary named Vicente F. Lopez as his
administrator. The latter subsequently became his guardian. There is
every indication that of all his relatives Tomas Rodriguez reposed the
most confidence in Vicente F. Lopez and his daughter Luz Lopez de
Bueno. Again, it w as Vicente F. Lopez, w ho, on the suggestion of
Rodriguez secured M aximino Mina to prepare the w ill, and it w as Luz
Lopez de Bueno w ho appears to have gathered the w itnesses and
physicians for the execution of the will. This faction of the Lopez family
w as also a favor through the orders of Doctor Domingo as to w ho
could be admitted to see the patient.
The trial judge entertained the opinion that there existed "a
preconceived plan on the part of the persons w ho surrounded Tomas
Rodriguez" to secure his signature to the testament. The trial judge
may be correct in this supposition. It is hard to believe, how ever, that
men of the standing of Judge M ina, Doctors Calderon, Domingo,
Herrera,and De Asis and M r. Legarda w ould so demean themselves
and so fully their characters and reputation as to participate in a
scheme having for its purpose to delude and to betray an old man in
his age,rather named w as acting according to the best of his ability
to assist in a legitimate act in a legitimate manner. M oreover,
considering the attitude of Tomas Rodriguez toward M argarita Lopez
and her husband and his apparent enmity toward them,it seems fairly
evident that even if the w ill had been made in previous years w hen
Rodriguez w as more nearly in his prime, he w ould have prepared
somew hat a similar document.
B. LAW. — One of the grounds for disallow ing a w ill is that it w as
procured by undue and improper pressure and influence on the art of
the beneficiary or some other person for his benefit (Code of Civil
Procedure, sec., 634[4]). Undue influence, as here mentioned in
connection w ith the law of w ills and as further mentioned in the Civil
Code (art. 1265), may be defined as that w hich compelled the
testator to do that w hich is against the w ill from fear the desire of
peace or from other feeling w hich is unable to resist.
The theory of undue influence is totally rejected as not proved.
III. JUDGM ENT
To restate the combined issued of fact and law in this case pertaining
to testamentary capacity: Did Tomas Rodriguez on January 3, 1924,
possess sufficient mentality tomake a w ill which would meet the legal
test regarding testamentary capacity and have the proponents of the
w ill carried successfully the burden of proof and show n him to be of
sound mind on that date?
Tw o of the subscribing w itnesses to the w ill, one a physician clearly to
the regular manner in w hich the w ill w as executed and to the
testator's mental condition. The other subscribing w itness, also, a
physician on the contrary testified to a fact w hich, if substantiated,
w ould require the court to disallow the w ill. The attending physician
and three other eminent membersof the medical fraternity,w howere
present at the execution of the w ill, expressed opinions entirely
favorable to the capacity of the testator.As against this w e have the
professional speculations of three other equally eminent members of
the medical profession w hen the w ill w as executed. The advantage
on those facts is all w ith those w ho offer the w ill for probate.
The w ill w as short. It could easily be understoodby a person in physical
distress. It w as reasonable, that is, it w as reasonable if w e take into
account the evident prejustice of the testator against the husband of
M argarita Lopez.
With special reference of the definition of testamentary capacity, w e
may say this: On January 3, 1924, Tomas Rodriguez, in our opinion
comprehended the nature of the transaction in w hich he w as
engaged. He had tw o conferences with his law yer, Judge M ina, and
knew w hat the w ill w as to contain. The w ill w as read to him by M r.
Legarda. He signed the w ill and its two copies in the proper places at
the bottom and on the left margin. At that time the testator
recollected the property to be disposed of and the persons w ho
w ould naturally be supposedto have claims upon him While for some
months prior to the making of the w ill he had not manage his property
he seem to have retained a distinct recollection of w hat it consisted
and of his income. Occasionally his memory failed him w ith reference
to the names of his relatives. Ordinarily, he knew w ho they w ere, he
seemed to entertain a prediliction towards VicenteF. Lopez as w ould
be natural since Lopez w as nearest in w hich the instrument distributed
the property naming the objects of his bounty. His conversations w ith
Judge M ina disclosed as insistence on giving all of his property to the
tw o persons w hom he specified.
On January 3, 1924, Tomas Rodriguez may have been of advanced
years, may have been physically decrepit, may have been w eak in
intellect, may have suffered a loss of memory, may have had a
guardian and may have a been extremely eccentric, but he still
possessed the spark of reason and of life, that strength of mind to form
a fixed intention and to summon his enfeebled thoughts to enforce
that intention, w hich the law terms "testamentary capacity." That in
effect is the definite opinion w hich w ereach after an exhaustive and
exhausting study of a tedious record,after w eighing the evidence for
the oppositors,and after giving to the case the serious consideration
w hich it deserves.
The judgment of the trial court w ill be set aside and the w ill of Tomas
Rodriguez w ill be admitted to probate w ithout special
pronouncement as to costs in this instance.
Avanceña, C. J., Johnson, Villamor,Johns,Romualdez, and Villa-Real,
JJ., concur.
G.R. No. L-39033 November 13, 1933
In re will of the late Matea Abella. MONS. SANTIAGO
SANCHO, applicant-appellee,
vs.
MARCIANA ABELLA, opponent-appellant.
Sot t o and Ast illa for appellant .
B. Quit oriano for appellee.
VILLA-REAL, J.:
This is an appeal taken by the opponent M arciana Abella from the
judgment rendered by the Court of First Instance of Ilocos Sur, the
dispositive part of w hich reads as follow s:
Wherefore,this court is of the opinion, and so holds, that the
opposition filed by M arciana Abella is w ithout merit and,
therefore,it is hereby denied. The application filed herein is
granted and the document, Exhibit A, is hereby ordered
and decreed probated as the last will and testament of the
late M atea Abella. So ordered.
In support of her appeal, the appellant assigns the follow ing alleged
errors in the decision of the court a quo, to w it:
1. The low er court erred in holding that Matea Abella w as in
the full enjoyment of her mental faculties and executed the
document, Exhibit A, as a true expression of her last w ill.

23. 23
2. The low er court erred in holding that the requirements of
the law have been complied w ith in the execution of the
w ill, Exhibit A.
3. The low er court erred in holding that w hen the late Matea
Abella affixed her alleged signatures to the w ill, Exhibit A,
she did not act under the illegal and undue influence of
certain legatees.
4. The low er court erred in decreeing the probate of the w ill,
Exhibit A.
The follow ing facts have been proven by a preponderance of
evidence presented during the trial, to w it:
The testatrix,M atea Abella,resident of the municipality of Sinait,Ilocos
Sur, had been informed that Dr. Antonio Querol of San Fernando La
Union, w as a good physician. On April 13, 1932, she left her home
situated in the said municipality of Sinait, accompanied by her niece,
Filomena Inay, to consult the said physician in his clinic in San
Fernando, La Union, stopping at the convent of the parish church of
the said municipality,in charge of Father Cordero w ith w hom she w as
acquainted he having been the parish priest of Sinait. During her stay
in the said convent,she w ent to Dr. Antonio Querol's clinic tw ice w ithin
the period of one w eek accompanied by her aforesaid niece,
Filomena Inay,to consult the said physician w ho, after submitting her
to a general medical examination, found that she w as suffering from
dyspepsia and cancer of the stomach.
On or about April 26, 1932, M atea Abella ordered a sexton of the
convent to call Attorney Teodoro R. Reinoso to w hom she expressed
her desire to make a w ill,in the presence of the Father Cordero's sister,
Father Zoilo Aguda, M acario Calug and the fiscal of the convent.
Inasmuch as the aforesaid attorney had to attend to other business,
he could not finish his interview w ith the testatrix on the first day and
had to continue it the follow ing day, also in the presence of Father
Cordero,his sister,Filomena Inay and some children w ho were then at
the convent. Inasmuch as he did not finish the interview on the
second day, the said attorney returned again on the afternoon of the
28th and continued it in the presence of the same persons w ho
entered and left the sala. At the end of the interview , M atea Abella
ordered he niece, Filomena Inay, to bring her some papers w hich
w ere in her trunk, w hich she delivered to the said attorney. After the
w ill had been drafted in Ilocano, the dialect of the testatrix, M acario
Calug read it to her and she approved it. When the w ill had been
copied clean, it w as again read to the testatrix and she express her
approval thereof,but inasmuch as it w as rather late at night, she did
not care to sign the same suggesting that it be postponed to the
follow ing day, April 29, 1932, w hich w as done. At about 7:30 o'clock
on the morning of April 29, 1932, the signing of the w ill took place in
the corridor of the convent. The testatrix Matea Abella w as the first to
sign it on a table in the presence of each and every one of the
instrumental w itnesses thereto and of other persons, including Father
Cordero. After the testatrix,each of the instrument w itnesses signed in
the presence of the testatrix and of each and every one of the other
w itnesses. After the will had been signed,Attorney Teodoro R. Reinoso
delivered the original and the copies thereof to thetestatrix, retaining
one for his file. On July 3, 1932,M atea Abella died of the senile debility
in the municipality of Sinait at the age of 88 years.
The opponent herein attempted to provethat the testatrix w as deaf
and that her eyesight w as defective; that w hen one moved aw ay
from her and again approached her she w as unable to recognize
him; that it w as necessary to shout into her ear to call her for meals;
that she used to urinate on her clothes w ithout beingaw are of it; that
she had a very poor memory inasmuch as she used to try to collect
from her debtors in spite of the fact that they had already paid their
debts; that once, although she had sold a parcel of land for P60 she
said she had sold it for P160; that she w as unable to go dow nstairs
w ithout assistance;that w hen she w ascalled at mealtime she used to
answ er: "Why,I have already eaten";that she could not remember her
properties nor the names of her tenants; that she could no longer
read; that she often repeated to her tenants the same questions
regarding their crops; that she had been suffering from the disabilities
for more than tw o months previous to her death; that the deceased
complained of headache and of stomachache; that she already
began to be dotty five years before, and particularly a few days
previous to her death; that in her w ill she bequeathed properties
w hich she had already donated to other persons.
We are face to face w ith two divergent theories regarding themental
state of the testatrix Matea Abella at the time of the execution of her
w ill,Exhibit A. The opponent claims that,inasmuch as the testatrix w as
88 years of age w hen she made her w ill, she w as already suffering
from senile debility and therefore her mental faculties w ere not
functioning normally anymore and that she w as not fully aw are of her
acts. As an indication of her senile debility, she attempted to prove
that the testatrix had very poor memory in connection w ith her
properties and interest; that she could not go dow nstairs w ithout
assistance, and that she could not recall her recent acts.
On the other hand,as to the mental sanity of the testatrix at the time
of the execution of her w ill,w e have theundisputed fact of her having
left her home in Sinait, Ilocos Sur, on April 13,1932,in order to go to San
Fernando, La Union, to consult Dr. Antonio
Querol — of w hose ability she had heard so much — regarding her
headaches and stomach trouble, stopping at the convent of the
parish church; the fact of her having w alked tw ice to the aforesaid
doctor's clinic, accompanied by her niece, Filomena Inay; the fact
that she had personally furnished the aforesaid doctor w ith all the
necessary data regarding the history of her illness the fact of her
having brought w ith her in her trunk the deeds to her properties; the
fact of her having called for Attorney Teodoro R. Reinoso; the fact of
her having personally furnished said attorney all the data she w ished
to embody in her relative to her properties and the persons in w hose
favor she w ished to bequeath them;the fact of her not w ishing to sign
her w ill on the night of April 28, 1932,but the follow ing day, in order to
be able to see it better, and the fact of her having affixed her
signature, in her ow n handw riting, to the original as w ell as to the
copies of her w ill w hich consisted of nine pages. All these data show
that the testatrix w as not so physically w eak, nor so blind, nor so deaf,
nor so lacking in intelligence that she could not, w ith full
understanding thereof, dispose of her properties and make a w ill.
Neither senile debility,nor blindness,nor deafness, nor poor memory, is
by itself sufficient to incapacitate a person for making his ill (Avelino vs.
De la Cruz, 21 Phil., 521; Bagtas vs. Paguio, 22 Phil., 227; Jocson vs.
Jocson, 46 Phil., 701; Amata and Almojuela vs. Tablizo, 48 Phil., 485;
Torres and Lopez de Bueno vs. Lopez,48 Phil.,772; 28 R.C.L., p. 94, par.
44). The mere fact that in her w ill M atea Abella disposed of properties,
w hich she had already donated to other persons at a prior date,is not
an indication of mental insanity. At most it constitutes forgetfulness or
a change of mind, due to ignorance of the irrevocability of certain
donations.lawphil.net
It is insinuated that the testatrix has been unduly influenced in the
execution of her w ill. There is nothing in the records establishing such
claim either directly or indirectly. The fact of her having stopped at the
convent of the parish church of San Fernando, La Union, is not unusual
in the Philippines w here,due to lack of hotels, the tow n convents are
usually given preference by strangers because they are given better
accommodations and allow ed more freedom. In the present case,
the testatrix Matea Abella w as a stranger in San Fernando, La Union.
Inasmuch as Father Cordero, the parish priest of the said tow n, w as
w ell know n to her having served in the church of Sinait, Ilocos Sur, in
the same capacity, she did not have any difficulties in obtaining
accommodations in his convent. The fact that M ateaAbella stopped
at a convent and enjoyed the hospitality of a priest w ho gave her
accommodations therein, nor the fact that the w ill w as executed in
the convent in question in the presence of the parish priest and
w itnessedby another priest, could certainly not be considered as an
influence w hich placed her under the obligation to bequeath of her
property to the bishop of said diocese.
In view of the foregoing considerations,w e are of the opinion and so
hold: (1) That neither senile ability, nor deafness, nor blindness, nor

24. 24
poor memory,is by itself sufficient to establish the presumption that the
person suffering therefrom is not in the full enjoyment of his mental
faculties, w hen there is sufficient evidence of his mental sanity at the
time of the execution of the w ill; and (2) that neither the fact of her
being given accommodations in a convent, nor the presence of the
parish priest, nor a priest acting as a w itness, constitutes undue
influence sufficient to justify the annulment of a legacy in favor of the
bishop of a diocese made in her w ill by a testatrix 88 years of age,
suffering from defective eyesight and hearing,w hile she is stopping at
a convent w ithin the aforestated diocese.
Wherefore, not finding any error in the judgment appealed from, it is
hereby affirmed in t ot o, w ith the costs against the appellant. So
ordered.
Malcolm, Abad Sant os, Hull, and Imperial, JJ., concur.
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN
P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY
PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO
BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE
S. ALSUA and PABLO ALSUA, respondents.
Rafael Triumfant e for pet it ioners.
Sabido-Sabido & Associat es and Madrid Law Office for privat e
respondent s.
GUERRERO, J.:1äwphï1.ñët
This is an appeal by certiorari from the decision of the Court of
Appeals in CA-G.R. Nos. 54492-R and 54493-R w hich reversed the
decision of the Court of First Instance of Albay allow ing the probate of
the w in of Don Jesus Alsua in Special Proceedings No. 699 and
dismissing the complaint in Civil Case 3068 after declaring the tw o
deeds of sale executed by Don Jesus Alsua legal and valid. The
respondent court 1 denied the probate of the w ill, declared null and
void the tw o sales subject of the complaint and ordered the
defendants,petitioners herein,to pay damages to the plaintiffs, now
the private respondents, the sum of Five Thousand Pesos (P5,000.00),
to render an accounting of the properties in their possession and to
reimburse the latter the net gain in the proportion that appertains to
them in the properties from the date of the firing of the complaint up
to complete restoration plus Fifty Thousand Pesos (P50,000.00) as
attorney's fees and costs.
The antecedent events leading tothe filing of these two consolidated
actions are the follow ing.
On November 25,1949,Don Jesus Alsua and his w ife, Doñ;a Florentina
Rella, both of Ligao, Albay, together w ith all their living children,
Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial
guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered
into a duly notarized agreement, Escrit ura de Part icion
Ext rajudicial (Exhibit 8),over the then present and existing propertiesof
the spouses Don Jesus and Doñ;a Florentina enumerated in a
prepared inventory, Exhibit 8-A, the essential features of w hich are
stated in private respondents' Brief, pp. 26-29, to w it: t êñ.£îhqwâ£
(1) Basis of the partition: Inventory (Annex A) of all
the properties of the Alsua spouses, w hich
inventory consists of 97 pages, all of them signed
by the spouses and all the above named heirs in
the left margin of every page (parafo primers).
(2) An acknow ledgment of the spouses that all the
properties described in the inventory (Annex A)
are conjugal properties with the exception of five
parcels of land Identified w ith the figures of 1 to 5
and 30 shares of San M iguel Brew ery stock w hich
are paraphernal properties of the late Doñ;a Tinay
(segundo parafo).
(3) An acknow ledgment that during their
marriage,they had nine children but five of them
died minors, unmarried (parafo tercero y cuatro).
(4) An acknow ledgment that on the basis of
Article 1056 of the Civil Code (old) to avoid
Possible misunderstanding among their children
concerning the inheritance they are entitled to in
the event of death of one of them they have
decided to effectuate an extrajudicial partition of
all the properties described in Annex "A" thereto
under the follow ing terms and conditions: (Parafo
quinto):
To Francisca Alsua, married to Joseph O. Betts w ere allotted or
assigned all the real properties w ith the improvements thereon
specifically described from pages 1-12 of said inventory or, 34 parcels
of land w ith a total land area of 5,720,364 sq. meters, w ith a book or
appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin w ere allotted or assigned all
the real properties w ith the improvements thereon specifically
described from pages 12-20 of said inventory or, 26 parcels of land
w ith a total land area of 5,679,262 sq. meters, w ith a book or
appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson w ere allotted or
assigned all the real properties w ith the improvements thereon
specifically described from pages 20-33 of said inventory or,47 parcels
of land w ith a total land area of 6,639,810 sq. meters, w ith a book or
appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje w ere allotted or
assigned all the real properties w ith the improvements thereon
specifically described from pages 33-47 of said inventory or,47 parcels
of land w ith a total land area of 5,630,715 sq. meters, w ith a book or
appraised value of P58,830.00. t êñ.£îhqwâ£
(a) Each and every one of the heirs named above
acknow ledge and admit that the totality of the
properties allotted and adjudicated to theheirs as
described in the preceding paragraph, constitute
one half of the properties described in Annex "A",
including any amount of cash deposited.
(b) That all the heirs acknow ledge and admit that
all the properties assigned to them as their
hereditary portion represent one-half not only of
the conjugal properties but includes the
paraphernal properties — w aiving now and
forever any complaint or claim they have or they
may have concerning the amount, value,
extension and location of the properties that are
allotted to each and everyone. They also w aive
any claim they have or they may have over the
remaining portion of the properties,w hich spouses
reserved for themselves.

25. 25
(c) That in case of death of one of the spouses,
each and everyone of the heirs acknow ledgethat
the properties w hich are left in the possession of
the surviving spouse, including any amount in
cash, are even less than the one- half that should
correspond in absolute ow nership as his legitimate
participation in the conjugal properties. In
consequence they w aive any claim that they
have or may have over said portion of said
properties or any amount in cash during the
lifetime of the surviving spouse, including any right
or claim they have or they may have over the
paraphernal properties of Doñ;a Tinay in the event
the surviving spouse is Don Jesus.
(d) The spouses on their part in case of death of
any one of them,the surviving spouse w aives any
claim he or she may have over the properties
assigned or adjudicated to the heirs under and by
virtue of this deed. The properties w hich w ere
reserved for them (the spouses) should be
considered as his or her legitimate participation in
the conjugal properties and the fair compensation
of his or her usufruct on the properties that the
surviving spouse reserved for himself or herself
w hich shag be distributed in equal shares among
the heirs upon his or her death unless said
properties of some of them havebeen disposed of
during the lifetime of the surviving spouse.
(e) Any heir w ho may dare question the validity
and legitimacy of the provision contained herein
shall be under obligation to pay to the other heirs,
in the concept of damages and prejudice, the
sum of P5,000.00 plus attorney's fees.
(f) The provisions of this deed shall bind the
successors of the herein heirs.
(g) In the event of death of one of the spouses,
the properties assigned or adjudicated to each
and everyone of the heirs shall be considered as
his share or participation in the estate or as his
inheritance left by the deceased and each heir
shall become the absoluteowner of the properties
adjudicated to him under this deed.
On January 5, 1955, Don Jesus and Doñ;a Florentina, also know n as
Doñ;a Tinay separately executed their respective holographic w ills
(Exhs. 6-B and 7-B), the provisions of w hich w ere in conformity and in
implementation of the extrajudicial partition of November 25, 1949.
Their holographic w ills similarly provided for the institution of the other
to his or her share in the conjugal properties, the other half of the
conjugal assets having been partitioned to constitute their legitime
among their four living children in the Extrajudicial Partition of 1949. The
w igs also declared that in the event of future acquisitions of other
properties by either of them, one-half thereof w ould belong to the
other spouse, and the other half shall be divided equally among the
four children. The holographic w ill of Doñ;a Tinay w ritten in Spanish
reads, as translated: t êñ.£îhqwâ£
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina,
married to Don Jesus Alsua, resident of and w ith
postal address in the M unicipality of Ligao,
Province of Albay, Philippines, being in the full
possession of my mental and physical faculties
freely and spontaneously execute this my last w ill
and testament in my handw riting and signed by
me and expressed in the Spanish language w hich
I speak, w rite and understand, this 5th day of
January, 1955 in the M unicipality of Ligao,
Province of Albay, and in w hich I ordain and
provide:
First: That in or about the year 1906 I w as married
to my husband Don Jesus Alsua and begot nine
(9) children w ith him,four (4) of w hom are still living
and they are Francisco Alsua, Pablo Alsua,
Fernando Alsua and Amparo Alsua. The other five
(5) died during their minority, single and w ithout
children.
Second: That after my marriage to my husband
Don Jesus Alsua and during our conjugal union,
and as a result of our efforts and industry,w e w ere
able to acquire conjugal properties consisting of
abaca (abales) and cacao lands and urban
lands registered in the office of the Registry of
Property of the Province of Albay and in the City
of M anila.
Third: That I institute as my heirs with right to inherit
the follow ing- my spouse Don Jesus Alsua,one-half
(1/2) of my properties, real and personal, and the
other half, to my children Francisco Alsua, married
to Joseph O. Betts, Pablo Alsua, Fernando Alsua,
married to Clotilde Samson, and Amparo Alsua,
married to Fernando Buenviaje,in equal parts. It is
to be understood, how ever, that the other half
that corresponds as legitime to my above named
children have already been given to them,
pursuant to a document dated November 25,
1949 and ratified on the same day, month and
year before Notary Public Segundo G. Flores (Reg.
No. 525; Pag. 15; Lib. 11; Series of 1949) enjoining
each and everyone of them to respect and
faithfully comply w ith each and every clause
contained in the said document.
Fourth: That should I acquire new properties after
the execution of this testament,the same shall be
partitioned among my spouse and above named
children or the children mentioned in above par. 3
in the same proportion that is, one-half (1 1/2) to
my spouse; and the other half to my children in
equal parts.
Fifth: That I name as my executor my husband Don
Jesus Alsua w ithout having to post any bond.
IN VIRTUE WHEREOF, I hereby sign in my ow n
handw riting this testament on this 5th day of
January, 1955 in the M unicipality of Ligao,
Province of Albay, Philippines. t êñ.£îhqwâ£

26. 26
N
A
R
.
D
E
A
L
S
U
A
(Joint Record on appeal pp. 420-423, CA-G.R. No.
54492-R)
As previously stated,Don Jesus Alsua executed a separate but similar
holographic w ill on the same day, Jan. 5, 1955 in exactly the same
terms and conditions as the above w ill of his w ife.
On M ay 21,1956,the spouses Don Jesus and Doñ;a Tinay filed before
the Court of First Instance of Albay their respective petitions for the
probate of their respective holographic w ins which weredocketed as
Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special
Proceedings No. 485 (Doñ;a Florentina Ralla de Alsua, Petitioner).
On August 14, 1956,the spouses Don Jesus and Doñ;a Tinay executed
their mutual and reciprocal codicils amending and supplementing
their respective holographic w ins. Again, the codicils similarly
acknow ledged and provided that one-half of all the properties of the
spouses,conjugal and paraphernal, had been disposed of,conveyed
to and partitioned among their legitimate heirs in the "Escritura de
Particion" of November 25,1949,but that they reserved for themselves
(the spouses Don Jesus and Doñ;a Tinay) the other half or those not
disposed of to the said legitimateheirs under the above agreement of
partition, and that they mutually and reciprocally bequeathed unto
each other their participation therein as w ell as in all properties w hich
might be acquired subsequently. Each spouse also declared that
should she or he be the surviving spouse, w hatever belongs to him or
her or w ould pertain to him or her, w ould be divided equally among
the four children. It w as also declared in both codicils that upon the
death of either of the spouses, the surviving spouse w as designated
mutually and reciprocally as the executor or administrator of all the
properties reserved for themselves.
The codicil executed by Doñ;a Tinay, w ritten in Spanish reads, as
translated: t êñ.£îhqwâ£
CODICIL
This codicil supplements and amends the
preceding testament. That my spouse and I have
agreed to divide the properties w hich w e have
acquired into 2 parts. The 1/2 that w ould
correspond to me covers all the properties that I
have partitioned among my children in the
Document of Partition dated November 25, 1949
before Notary Public Segundo G. Flores, Jr. (Doc.
No. 525; Pag. No. 15; Lib. No. 11; Series of 1949)
(and) even as the properties w hich by reason of
this testament I leave to my husband as his share
and the other half that corresponds to my
husband constitutes an the properties that up to
now have not been disposed of, particularly the
urban lands situated in Legaspi, Albay, Ligao of
the Province of Albay and in the City of M anila,
w ith the exception of that portion that I bequeath
to my husband as his inheritance and his
legitimate.
That I institute as my heirs w ith the right to inherit
my husband Don Jesus Alsua and my children
Francisco Alsua, Pablo Alsua, Fernando Alsua and
Amparo Alsua. I leave to my aforecited children
all the properties described in the above
mentioned Document of Partition dated
November 25, 1949 w hich correspond to each
one of them and in the profits (fruits) expressed in
the same, and in the event that the properties
granted to one or any of my children should
exceed in quantity or value those corresponding
to another or others,I hereby declare that it is my
w ill that the same be divided among my children
as their inheritance from the free portion of my
property.
I leave to my spouse Don Jesus Alsua as his
legitime and as Ws inheritance the part of the free
portion of my property w hich have not been
allocated in favor of my children in the Document
of Partition aforecited and that w hich should
exceed 1/2 of the conjugal property of gains that
pertains to him as above stated, including all
those properties w hich w e shall acquire after the
execution of this document.
In case it should be God's w ill that I survive my
spouse,I hereby declare that it is my w ill that any
and all kinds of property that pertain to me or
w ould pertain to me, w hich have not been
disposed of pursuant to the partition, should be
divided equally among my above-mentioned
heirs after my death. Ligao, Albay, Philippines,
August 14,1956. t êñ.£îhqwâ£
(joint Record on Appeal pp. 423-425, CA-G.R. No.
54492-R)

27. 27
And as stated previously,on the same day,August 14,1956,Don Jesus
executed also a separatebut similar codicil in exactly the same terms
and conditions as the above codicil of his w ife. Also on the same day
of August 14, 1956, the spouses Don Jesus and Doñ;a Tinay both filed
their respective supplemental petitions for the probate of their
respective codicils in the probate proceedings earlier filed. On
February 19, 1957, their respective holographic w ins and the codicils
thereto w ere duly admitted to probate.
Upon the death of Doñ;a Tinay on October 2, 1959, Don Jesus w as
named executor to serve w ithout bond in an order issued by the
probate court on October 13,1959. Letters testamentary having been
issued in favor of Don Jesus, he took his oath of office and performed
his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled
his holographic w ill in the presence of his bookkeeper and secretary,
Esteban P. Ramirez, w hom he instructed to make a list of all his
remaining properties with their corresponding descriptions. His law yer,
Atty. Gregorio imperial Sr. w as then instructed to draft a new will which
w as duly signed by Don Jesus and his attesting w itnesses on
November 14,1959 at M s home in Ligao, Albay. This notarial w ill and
testament (Exh. A) of Don Jesus executed on November 14, 1959 had
three essential features: (a) it expressly cancelled, revoked and
annulled all the provisions of Don Jesus' holographic w ill of January 5,
1955 and his codicil of August 14, 1956;(b) it provided for the collation
of all his properties donated to his four living children by virtue of the
"Escritura de Particion Extra. judicial" of 1949, and that such properties
be taken into account in the partition of his estate among the
children; and (c) it instituted his children as legatees/devisees of
certain specific properties, and as to the rest of the properties and
w hatever may be subsequently acquired in the future, before his
death, w ere to be given to Francisca and Pablo, naming Francesca
as executrix to serve w ithout a bond.
After all debts, funeral charges and other expenses of the estate of
Doñ;a Tinay had been paid, all her heirs including Don Jesus,
submitted to the probate court for approval a deed of partition
executed on December 19, 1959 (Exh. 7-Q) and w hich essentially
confirmed the provisions of the partition of 1949, the holographic w ill
and codicil of Doñ;a Tinay. On July 6, 1960, the court approved the
partition of 1959 and on January 6, 1961 declared the termination of
the proceedings on the estate of Doñ;a Tinay.
On M ay 6,1964, Don Jesus Alsua died.
On M ay 20, 1964, petitioner herein Francisca Alsua Betts, as the
executrix named in the w ill of November 14, 1959, filed a petition for
the probate of said new w ill of Don Jesus Alsua before the Court of
First Instance of Albay and w as docketed as Special Proceedings No.
699. Oppositions theretowere filed by Pablo, Amparo and Fernando,
thru his judicial guardian Clotilde Samson, on the follow ing grounds:
(a) that Don Jesus w as not of sound and disposing mind at the time of
the execution of the alleged will;(b) that the will was executed under
duress or influence of fear or threats;or it w as procured by undue and
improper pressure and influence on the part of the main beneficiaries
and of person or persons in collusion w ith them,or the signature of the
testator w as secured by or thru fraud; (c) that the w ill w as not
executed according to the formal requirements of the law ; and (d)
that the alleged w ill subject of probate contravened the Extrajudicial
Partition of 1949 agreed upon by him, his deceased spouse, Doñ;a
Tinay, and all his children, Francisco, Pablo, Amparo and Fernando
thru his judicial guardian Clotilde Samson, and also contravened Don
Jesus' ow n probated holographic w ill and codicil of 1955 and 1956,
respectively, essentially confirming and implementing the said
partition of 1949 w hich had already been partially executed by all the
signatories thereto in the partition of the estate of Doñ;a Tinay in
December, 1959.
On the basis of Francisca's designation as executrix in the new w ill
dated November 14, 1959, the Probate Court appointed her
Administratrix of the estate of her late father, Don Jesus Alsua. She
then filed w ith the Probate Court an inventory of the properties of the
estate w hich, according to the oppositors therein (the private
respondents now ) did not include some properties appearing in the
agreement of November 25. 1949or in the inventory attached thereto
as Annex "A" and in the "Escritura de Particion" of December 19, 1959
as belonging to or should pertain to Don Jesus. According to the
oppositors, these properties consist of thirty- three (33) premium
agricultural lots w ith a total land area of 1,187,970 square meters, or
approximately 119 hectares and w ith a total assessed value of
P48,410.00 or a probable total market value of P238,000.00 at only
P2,000.00 per hectare, and four (4) commercial urban lots Ideally
located in the business section of Legazpi City including the lot and
the building presently occupied by the w ell-known "Mayon Hotel" with
an assessed value of approximately P117,260.00 or a probable market
value at the time of P469,040.00. It appearing from the new w ill that
these properties w ere bequeathed to Pablo Alsua and Francisco
Alsua-Betts,specifically, 3 parcels of the 33 agricultural lands to Pablo
and the rest to Francisco, the oppositors also raised in issue the non-
inclusion of said properties in the inventory of the estate of their late
father. In answ er, Francisco claimed ow nership over the same,
alleging that she bought the properties from their father and
presenting the tw o Deeds of Sale now being assailed, one dated
August 26, 1961 purporting to show the sale of the 33 parcels of
agricultural land to Francisco by their father for the price of P70,000.00
and the other dated November 26, 1962 evidencing the sale of the
four urban lots for the sum of P80,000.00. Claiming fraud in the sales,
the oppositors filed Civil Case No. 3068, seeking the annulment of the
aforesaid tw o deeds of sale, w ith damages, w hich upon agreement
of the parties w as then jointly heard and tried w ith Special
Proceedings No. 699 for probate of the Last Will and Testament of Don
Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two cases, the Court of First
Instance of Albay promulgated a decision on January 15, 1973, the
dispositive portion of w hich states: t êñ.£îhqwâ£
WHEREFORE, in view of all the foregoing,judgment
is hereby rendered, to w it:
1. In Special Proceedings 699, the Court hereby
APPROVES and ALLOWS the Will executed by Don
Jesus Alsua at Ligao, Albay, on November 14,
1959, w hich had been marked as Exhibit A,
consisting of nine (9) pages, and orders that the
same be made the basis for division and
distribution of the estate of said testator;
2. In Civil Case 3068, the Court hereby dismisses
the complaint and holds that the sale on August
26, 1961 (Exh. U) and the sale on November 26,
1962 (Exh. W), are law ful and valid sales and
accordingly conveyed title to the VENDEE thereof.
The Plaintiffs in Civil Case 3068. are ordered jointly
and severally to pay to the defendant, Francisco
Alsua Betts Fifty Thousand Pesos (P50,000.00) as
damages and Fifty Thousand (P50,000.00) Pesosfor
attorney's fees or a total of One Hundred
Thousand Pesos (P100,000.00) and to pay the
costs.
On appeal by herein respondents to the Court of Appeals, the court
reversed the appealed decision in a judgment rendered on April 4,
1977, the dispositive portion of w hich states, as translated, thus —
t êñ.£îhqwâ£
IN VIEW OF THE FOREGOING,this Tribunal finds itself
constrained to set aside as it hereby sets aside the
decision appealed from in the follow ing manner:
(1) in Special Proceedings 699,the probate of the
w ill, Exh. A, is hereby denied; (2) in Civil Case No.
3068, Exhs. U and W and the titles issued on the
basis thereof are hereby declared null and void,

28. 28
ordering the appellees Francisco Alsua and
Joseph Betts to pay to theplaintiffs in the concept
of fixed damages, the sum of P5,000.00 and to
render an accounting of properties in their
possession and to reimburse the plaintiffs the net
gain, in the proportion that appertains to them in
the properties subject of litigation in Civil Case No.
3068 from the date of the filing of this complaint,
up to the complete restoration of the properties
pertaining to (plaintiffs) pursuant to Article 2208 of
the New Civil Code,paragraph 11, ordering them
in addition to pay to the plaintiffs and oppositors
the sum of P50,000.00 as attorney's fees, and the
costs.
Hence, the petition at bar assailing the respondent court's decision on
four assigned errors, to w it: t êñ.£îhqwâ£
I. The respondent Court of Appeals erred in not
affirming the findings of the probate court (Special
Proceedings No. 699) that private respondents,
oppositors to the probate of the w ill, are in
estoppel to question the competence of testator
Don Jesus Alsua.
II. The respondent Court of Appeals grossly erred in
holding that testator Don Jesus Alsua cannot
revoke his previous w ill.
III. The respondent court's finding is grounded
entirely on speculation, surmises or conjectures
resulting in a gross misapprehension of facts.
IV. The respondent court grossly erred in annulling
the sales of August 26, 1961 (Exh. U), and of
November 26, 1962 (Exh. W).
On the first issue of estoppel raised in the assignment of errors,We hold
that the same is of no moment. The controversy as to the competency
or incompetency of Don Jesus Alsua to execute his w ill cannot be
determined by acts of the herein private respondents as oppositors to
the w ill in formally agreeing in w riting jointly w ith the petitioner
Francisca Alsua de Betts that their father, Don Jesus Alsua, be
appointed by the court executor of the w ill of their mother in Special
Proceedings No. 485,Testate Estate of Doñ;a Florentina Ralla de Alsua
and in subsequently petitioning the court not to require Don Jesus
Alsua to file any accounting as executor in the proceedings, w hich
petitioners claim and w as upheld by the trial court as constituting
estoppel on the part of the private respondents from questioning the
competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a
ruling laid dow n in the case of Test at e Est at e of t he Lat e Procopia
Apost ol Benedict a Obispo, et al vs. Remedios Obispo, 50 O.G. 614,
penned by Justice J.B.L. Reyes,an eminent and recognized authority
on Civil Law w hen he w as still in the Court of Appeals, and We
quote: t êñ.£îhqwâ£
Finally, probate proceedings involve public
interest, and the application therein of the rile of
estoppel,w hen it w in block the ascertainment of
the truth as to the circumstances surrounding the
execution of a testament,would seem inimical to
public policy. Over and above the interest of
private parties is that of the state to see that
testamentary dispositions be carried out if, and
only if, executed conformably to law .
The Supreme Court of New York aptly said in Re
Canfield's Will, 300 N.Y.S., 502: t êñ.£îhqwâ£
'The primary purpose of the
proceeding is not to establish
the existence of the right of
any living person, but to
determine whether or not the
decedent has performed the
acts specified by the pertinent
statutes, w hich are the
essential prerequisites to
personal direction of the
mode of devolution of his
property on death. There is no
legal but merely a moral duty
resting upon a proponent to
attempt tovalidatethe wishes
of the departed, and he may
and frequently does receive
no personal benefit from the
performance of the act.
One of the most fundamental
conceptions of probate law , is
that it is the duty of the court
to effectuate, in so far as may
be compatible w ith the public
interest, the devolutionary
w ishes of a deceased person
(M atter of Watson's Wilt 262
N.Y., 284, 294, 186, N.E., 787;
M atter of M arriman's Estate,
124 M isc. 320, 325, 208, N.Y.S.,
672; Foley, S., affirmed 217
app. Div., 733, 216 N.Y.S., 126,
Henderson, S., M atter of
Draske's Estate, 160 M isc. 587,
593, 290, N.Y.S., 581). To that
end, the court is, in effect, an
additional party to every
litigation affecting the disposal
of the assets of the deceased.
M atter of Van Valkenburgh's
Estate, 164 M isc. 295, 298,
N.Y.S., 219.'
The next issue that commands Our attention is w hether the
respondent court erred in not allow ing theprobateof the last w ill and
testament of Don Jesus Alsua. Petitioners claim that the disallow ance
w as based on speculations, surmises or conjectures, disregarding the
facts as found by the trial court. The Civil Court is very clear and
explicit in providing the cases w here a w ill may be disallow ed under
Article 839 w hich provides as follow s: t êñ.£îhqwâ£
Art. 839. The w ill shall be disallow ed in any of the
follow ing cases:
(1) If the formalities required by law have not been
complied w ith;
(2) If the testator wasinsane,or otherwise mentally
incapable of making a w ilt at the time of its
execution;
(3) If it w as executed through force or under
duress, or the influence of fear, or threats;
(4) If it w as 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,

29. 29
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be his
w ill at the time of affixing his signature thereto.
The issue under consideration appears to Us to have been answ ered
by the respondent court itself when it accepted the findings of the trial
court on the due execution of the questioned w ill and testament of
Don Jesus, declaring: t êñ.£îhqwâ£
... and going back to the previous question,
w hether the questioned w ill and testament of
November 14, 1959, Exh. A, w as executed in
accordance w ith Arts. 805-809 of the New Civil
Code, this Tribunal from the very beginning
accepts the findings of the inferior court
concerning the question, t êñ.£îhqwâ£
On October 2, 1959, Doñ;a
Florentina died at Ligao,
Albay. About 2 w eeks after
said death of his w ife, Don
Jesus Alsua decided to make
a new w ill, thereby revoking
and cancelling his previous
holographic w ill w hich he
made on January 5, 1955 and
also its codicil dated August
14, 1956. In the presence of his
bookkeeper and secretary,
Esteban P. Ramirez, he crossed
out in ink each and every
page of said page he w rote
on each page the w ord
"cancelado", and affixed his
signature thereon (Exh V-5, V-
6, consecutively up to and
including Exh. V-14). He then
instructed Ramirez to make a
list of all s properties w ith their
corresponding descriptions.
M eanw hile, Don Jesus Alsua
sent for his law yer, Don
Gregorio Imperial, Sr. and the
latter came accompanied by
his son, Atty. Jorge S, Imperial,
w ho, incidentally, is now a
judge of the Court of First
Instance of Naga City,
Camarines Sur. Don Jesus
informed his law yers that he
w anted to make a new w ill,
and accordingly gave more
detailed instructions as to how
he w anted to divide his
properties among his four
children. He handed to them
a list and on the left he
indicated the name of the
child to w hom the listed
properties shall pertain. Atty.
Jorge Imperial took notes of
the instructions of Don Jesus
Alsua. To Don Jesus, Spanish is
his major language, as in fact
his conversations w ith Don
Gregorio are alw ays in
Spanish. A few days before
November 14, 1959, Atty.
Jorge S. Imperial show ed to
Don Jesus the semi-final draft
of the w ill and after reading it
Don Jesus said that it w as as
directed by him, and after
making a few minor
corrections,he instructed Atty.
Jorge S. Imperial to put the win
in final form. He further told
Atty, Jorge Imperial that the
signing of the w ill should be at
his home in Ligao, in the
morning of November 14,
1959, and that the w itnesses
should be M r. Ramon Balana,
the then Register of Deeds of
Albay; M r. Jose M adarieta
w ho is a friend of the family;
and M r. Jose Gaya w ho is a
sort of employee of Don Jesus.
Thus in the morning of
November 14, 1959, Don
Gregorio and Atty. Jorge S.
Imperial, riding in a sedan,
stopped at the Legaspi
residence of M r. Ramon
Balana, and informed the
latter that Don Jesus w as
requesting him to be one of
the attesting w itnesses to his
w ill. M r. Balana, having a very
high regard for Don Jesus,
considered it an honor to be
so asked, and gladly w ent with
the Imperials. They arrived at
the residence of Don Jesus at
Ligao; Albay, almost ten
o'clock of that morning, and
they w ere ushered in by M r.
Jose Gaya, and the latter
requested them to be seated
at the usual receiving room on
the ground floor w hile he
announced their arrival to Don
Jesus w ho w as on the second
floor. Soon Don Jesus came
dow n, carrying w ith him the
w ill to be signed placed inside
a cartolina folder. He greeted
Don Gregorio, M r. Balan, and
Atty. Imperial and immediately
joined them in conversation.
M r. Gaya called for M r. Jose
M adarieta,w hoseresidence is
just across the road from the
house of Don Jesus. M r.
M adarieta w as already
informed by Don Jesus himself
about the fact of signing the
w ill that morning, and so, on
being advised by M r. Gaya
that the Imperials had already
arrived,M adarieta proceeded
to the residence of Don Jesus,
w ithout much delay. With the
coming of M adarieta and the
coming back of Gaya, there
w ere now six people gathered
in the living room,namely: Don
Jesus Alsua, Don Gregorio
Imperial Atty. JorgeS. Imperial
M r. Ramon Balana, M r. Jose
M adarieta, and M r. Jose
Gaya. All the w itnesses w ho
testified for the petitioner
declared that Don Jesus w as
in bright and lively

30. 30
conversation w hich ran from
problems of farming and the
merits of French-made w ines.
At 1 1:00 o'clock, Don
Gregorio made a remark that
it is about time to do w hat
they w ere there for, and this
w as followed by a more or less
statement from Jesus, w ho
said: t êñ.£îhqwâ£
'Preisamen
te es por lo
que he
Hamado a
ustedes
que esten
presentes
para ser
testigos de
rni ultimo
voluntad y
testament
o que ha
sido
preparado
por el
abogado
Sr.
Gregorio
Imperial
segun mis
instruccion
es cuyo
document
o tengo
aqui
conmigo y
encuentro
que,
despues
de lo he
leido, esta
satisfactori
amente
hecho
segun mis
instruccion
es, Como
saben
ustedes
tengo
cuatro (4)
hijos todos
egos.' (pp.
43-44,
t.s.n.,
hearing of
December
7, 1967,
Sarte.
On request of Don Jesus, all of
them moved to the big round
table on another part of the
same sala for convenience in
signing because there w ere
chairs all around this table. The
w ill w hich consisted of nine
pages, w ith a duplicate, and
triplicate w as laid on the
round table and the signing
began, w ith Atty. Jorge S.
Imperial assisting each person
signing by indicating the
proper place w here the
signature shall be w ritten. Don
Jesus, as testator, signed first.
After signing the original and
the tw o other sets, the three
sets w ere then passed to M r.
Ramon Balana w ho signed as
attesting w itness. After M r.
Balana, M r. Jose M adarieta
signed next as another
attesting w itness, and w hen
M r. M adarieta finished signing
all the three sets, the same
w ere passed to Mr.Jose Gaya
w ho also signed as the third
attesting w itness. On each of
the three sets, Don Jesus
signed ten times, — one on
the margin of each of the nine
pages, and at the end of the
instrument proper. Each of the
three attesting w itnesses
(Balana, M adarieta and
Gaya) signed eleven times on
each set, — one on the
margin of each of the nine
pages, one at the end of the
instrument proper and one
below the attestation clause.
The original w ill w as marked as
Exh. A (or set A); the duplicate
as Exh. K (or set K) and the
triplicate of Don Jesus, M r.
Balana, M r. M adarieta, and
M r. Gaya w ere Identified by
M r. Balana,M r. M adarieta and
Atty. (now Judge) imperial. It
w as also clearly established
that w hen Don Jesus signed
the w ill M r. Balana, M r.
M adarieta, and M r. Gaya
w ere present and w itnessed
said signing, and that w hen
each of these three w itnesses
w as signing, Don Jesus and
the tw o other attesting
w itnesses w ere present and
Witnessing said Signing. The
signing by the testator and the
attesting w itnesses having
been completed, Atty. Jorge
S. Imperial as Notary Public
w ith commission for the entire
province of Albay, notarized
the w ilt and sealed it w ith his
notarial seat w hich seal he
brought along that morning.
After all the three sets w ere
notarized, they w ere all given
back to Don Jesus w ho
placed them inside the same
folder. At that moment, it w as
already about 12:30 P.M . and
Don Jesus invited all of them
to lunch, w hich invitation w as
gladly accepted by all of
then-L (pp. 474-480, Joint
Record on Appeal in CA-G.R.
No. 54492-R)
w hich findings are supported by the evidence, - it
is quite difficult to conclude that the same had not
complied w ith the requirements of Arts. 804- 806 of

31. 31
the New Civil Code. ... (CA Decision, pp. 13-16, as
translated).
This cited portion of the appealed decision accepts as a fact that the
findings of the low er court declaring the contested will as having been
executed with all the formal requirements of a valid w ill,are supported
by the evidence. This finding is conclusive upon this Tribunal and We
cannot alter, review or revise the same. Hence, there is no further
need for Us to dw ell on the matter as both the low er court and the
respondent appellate court have declared that these are the facts
and such facts are fully borne and supported by the records. We find
no error in the conclusion arrived at that the contested w ill w as duly
executed in accordance w ith law. We rule that the questioned last will
and testament of Don Jesus Alsua fully complied w ith the formal
requirements of the law .
Respondent court,how ever, denied probate of the w ill after ,'noting
certain details w hich w ere a little bit difficult to reconcile w ith the
ordinary course of things and of life." First w as the fact that the spouses
Don Jesus and Doñ;a Tinay together w ith their four children Francisco,
Pablo, Amparo and Fernando had executed the Extrajudicial Partition
of November 25,1949 (Exh. A) w hich divided the conjugal properties
of the spouses betw een the spouses themselves and the children
under the terms and conditions and dispositions herein before stated
and to implement its provisions, Don Jesus and Doñ;a Tinay
subsequently executed separately their respective holographic w igs
both dated January 5, 1955 and codicils dated August 14, 1956 w ith
the same terms and conditions as reproduced herein earlier. Both
holographic w ills and codicils having been probated thereafter and
upon the death of Doñ;a Tinay, Don Jesus w as appointed executor of
the w ill and in due time the partition of the properties or estate of
Doñ;a Tinay w as approved by the probate court on July 6, 1960.
The respondent court ruled that the Extrajudicial Partition of November
25, 1949 w as an enforceable contract w hich w as binding on Don
Jesus Alsua as the surviving spouse, barring him from violating said
partition agreement,barring him from revoking his holographic w ill of
January 5, 1955 and his codicil of August 14, 1956, and further barring
him from executing his new will and testament of November 14, 1959,
now the subject of the probate proceedings elevated to this Court.
We do not agree w ith this ruling of the Court of Appeals. We hold that
the Extrajudicial Partition of November 25, 1949 is null and void under
Article 1056 in relation to Article 1271 of the old Civil Code w hich are
applicable hereto. These Articles provide as follow s: t êñ.£îhqwâ£
Art. 1056. If the testator should make a partition of
his property by an act inter vivos, or by w ill, such
partition shall stand in so far as it does not
prejudice the legitime of the forced heirs. ...
Art. 1271. All things, even future ones, w hich are
not excluded from the commerce of man, may
be the subject-matter of contracts.
Nevertheless, no contract may be entered into
w ith respect to future inheritances, except those
the object of w hich is to make a division inter vivos
of an estate, in accordance w ith Article 1056.
All services not contrary to law or to good morals
may also be the subject- matter of contract.
Article 1056 specifically uses the w ord "testator" from w hich the clear
intent of the law may be deduced that the privilege of partitioning
one's estate by acts inter vivos is restricted only to one who has made
a prior w ill or testament. In other w ords, Article 1056 being an
exception cannot be given a w ider scope as to include in the
exception any person w hether he has made a w ill or not.
Respondent court citing the same Article concluded that under both
the old and new Civil Code, a person w ho executes a w ill is permitted
at the same time or a little thereafter or even before as long as he
mentions this fact in the w ill,to partition his properties pursuant to the
provisions of Article 1056 of the old Civil Code. The court further added
that jurisprudence is to the effect that the partition presupposes the
execution of the w ill that it ratifies or effectuates, citing the case
of Legast o vs. Verzosa, 54 Phil. 776. Finally, respondent court held the
opinion that the extrajudicial partition of November 14, 1949 w as
ratified in the holographic w ill executed by Don Jesus on Jan. 5, 1955
and in the codicil of August 14, 1956.
Again, We do not agree w ith this ruling of the respondent court.
In Legast o vs. Verzosa, supra, the Supreme Court categorically
declared the necessity of a prior w ill before the testator can partition
his properties among his heirs,and We quote the pertinent portions of
the decision: t êñ.£îhqwâ£
The first question to decide in the instant appeal is
w hether the partition made by Sabina Almadin of
her property among her nieces, the defendants
and appellants herein,w as valid and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of
his property by an act inter vivos, or by w ill, such
partition shall stand in so far as it does not
prejudice the legitime of the forced heirs.
The Supreme Court of Spain, in a decision
rendered on June 13, 1903, laid dow n the
follow ing doctrine:
Considering that the language of article 1056
cannot be interpreted to mean that a person
may, by acts inter vivos, partition his property
referred to in the section w herein said article is
found, w ithout the authority of a testament
containing an expression of his last w ill, or the
authority of law , for, otherw ise, a partition thus
made w ould be tantamount to making a w ill in a
manner not provided for, authorized, nor included
in the chapter referring to testaments, and
especially, to the forms thereof, w hich is entirely
different from the legal consequences of a free
disposition made by parents during their lifetime,
w hereby they giveto their children the whole or a
part of their property;
Considering that, inasmuch as the second
paragraph of article 1271 makes reference to the
aforesaid article, in providing that no contracts
may be entered into w ith respect to future
inheritances except thosethe object of which is to
make a division inter vivos of the estate in
accordance w ith article 1056, it is evident that
said difference likew ise leads to the conclusion
that a partition thus made should be on the basis
of a testamentary or legal succession and should
be made in conformity w ith the fundamental rules
thereof and the order of the heirs entitled to the
estate, because neither of the tw o provisions
could be given a w ider meaning or scope than
that they simply provide for the division of the
estate during the lifetime of the ow ner, w hich,
otherw ise, w ould have to be done upon the
death of the testator in order to carry into effect
the partition of the estate among the persons
interested.

32. 32
M anresa comments on the samearticle as follows:
A distinction must be made betw een the
disposition of property and its division; and the
provision of article 1056 authorizing the testator to
dispose of his property by acts inter vivos or by last
w ill, must be understood in accordance w ith this
distinction. The Idea is to divide the estate among
the heirs designated by the testator. This
designation constitutes the disposition of the
properties to take effect after his death, and said
act must necessarily appear in the testament
because it is the expression of the testator's last will
and must be surrounded by appropriate
formalities. Then comes the second part, to w it,
the division in conformity w ith that disposition, and
the testator may make this division in the same w ill
or in another w ill, or by an act inter vivos. With
these w ords, the law , in article 1056 as w ell as in
article 1057, w hich w e shall hereafter examine,
makes allusion to the forms or manner of making
the partition and not to the effects thereof, w hich
means that, for purposes of partition the formal
solemnities w hich must accompany every
testament or last w ill are not necessary. Neither is it
necessary to observe the special for. realities
required in case of donations, because it is not a
matter of disposing gratuitously of properties, but
of dividing those w hich already have been legally
disposed of.
It is thus seen that both the Spanish Supreme Court
and the learned and authoritative commentator,
M anresa,are of opinion that a testator may,by an
act inter vivos, partition his property, but he must
first make a w ill w ith all the formalities provided for
by law . And it could not be otherw ise, for w ithout
a w ill there can be no testator; w hen the law ,
therefore,speaks of the partition inter vivos made
by a testator of his property,it necessarily refers to
that property w hich he has devised to his heirs. A
person w ho disposes of his property gratis inter
vivos is not called a testator, but a donor. In
employing the w ord "testator," the law evidently
desired to distinguish betw een one w ho freely
donates his property in life and one w ho disposes
of it by w ill to take effect after his death.
We are not in conformity w ith the holding of the respondent court that
the extrajudicial partition of November 25, 1949 w hich under the old
Civil Code w as expressly prohibited as against public policy had been
validly ratified by the holographic w ill of Don Jesus executed on
January 5, 1955 and his codicil of August 14, 1956. Such a holding of
the appellate court that a person w hoexecutes a w ill is permitted to
partition his properties pursuant to the provisions of Article 1056 of the
old Civil Code even before executing his w ill as long as he mentions
this fact in the w ill, is not w arranted under the ruling of Legast o vs.
Verzosa, supra and the commentary of M anresa as quoted above.
We rule, therefore,that the respondent court erred in denying probate
to the w ill of Don Jesus dated November 14, 1959; it erred in holding
that Don Jesus being a party to the extrajudicial partition of 1949 w as
contractually bound by the provisions thereof and hence could not
revoke his participation therein by the simpleexpedience of making a
new w ill with contrary provisions or dispositions. It is an error because
the so-called extrajudicial partition of 1949is void and inoperativeas a
partition; neither is it a valid or enforceable contract because it
involved future inheritance;it may only be given effect as a donation
inter vivos of specific properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of
November 25, 1949, contained specific designation of properties
allotted to each child, We rule that there w as substantial compliance
w ith the rules on donations inter vivos under the old Civil Code (Article
633). On the other hand,there could have been no valid donation to
the children of the other half reserved as the free portion of Don Jesus
and Doñ;a Tinay w hich, as stated in the deed, w as to be divided
equally among the children for the simple reason that the property or
properties w ere not specifically described in the public instrument, an
essential requirement under Article 633 w hich provides as
follow s: t êñ.£îhqwâ£
Art. 633. In order that a donation or real property
be valid it must be made by public instrument in
w hich the property donated must be specifically
described and in the amount of the
encumbrances to be assumed by the donee
expressed.
The acceptance must be made in the deed of gift
or in a separate public w riting;but it shall produce
no effect if not made during the lifetime of the
donor.
If the acceptance is made by separate public
instrument,authentic notice thereof shall be given
the donor, and this proceeding shall be noted in
both instruments.
This other half, therefore, remained as the disposable free portion of
the spouses w hich may be disposed of in such manner that either of
the spouses w ould like in regards to his or her share in such portion,
unencumbered by the provision enjoining the last surviving spouse to
give equally to the children w hat belongs or-w ould pertain to him or
her. The end result,therefore,is that Don Jesus and Doñ;a Tinay, in the
Deed of 1949,made to their children valid donations of only one-half
of their combined properties w hich must be charged against their
legitime and cannot anymore be revoked unless inofficious; the other
half remained entirely at thefree disposal of the spouses w ith regards
to their respective shares.
Upon the death of Doñ;a Tinay on October 2, 1959, her share in the
free portion w as distributed in accordance w ith her holographic w ill
dated January 25,1955 and her codicil dated August 14,1956. It must
be stressed here that the distribution of her properties w as subject to
her holographic w in and codicil, independently of the holographic will
and codicil of Don Jesus executed by him on the same date. This is
fundamental because otherw ise, to consider both w ills and codicils
jointly w ould be to circumvent the prohibition of the Civil Code on
joint w ills (Art. 818) and secondly because upon the death of Doñ;a
Tinay, only her estate w as being settled, and not that of Don Jesus.
We have carefully examined the provisions of the holographic w ill and
codicil of Doñ;a Tinay and We find no indication w hatsoever that
Doñ;a Tinay expressly or impliedly instituted both the husband and her
children as heirs to her free portion of her share in the conjugal assets.
In her holographic w ill, mention of her children as heirs w as made in
the fourth clause but it only provided that, to w it: t êñ.£îhqwâ£
Cuatro. Que si yo adquieriese nuevase
propiedades despues de otorgado este mi
testamento seran las mismas repartados entre mi
esposo o hijos arriba mencionada en el parrafo
tercero su la misma proporcion o sea: la mitad
(1/2) para is esposa;y la otra mitad (1/2) para mis
hijos en partes iguales.
For purposes of clarity and convenience, this fourth clause provided
that "Should I acquire new properties after the execution of this
testament, the same shall be partitioned among my spouse and
above named children or the children mentioned in above par. 3 in
the same proportion, that is, one- half (1/2) to my spouse; and the
other half to my children in equal parts." From the above-quoted
provision, the children w ould only inherit together w ith Don Jesus

33. 33
w hatever new properties Doñ;a Tinay w ould acquire after the
execution of her w ill.
Likew ise,the codicil of Doñ;a Tinay instituted her husband as sole heir
to her share in the free portion of the conjugal assets, and We quote
that part of the codicil: t êñ.£îhqwâ£
Dejo a mi esposo Jesus Alsua como su legitima y
como herencia que se sacara de ni cuenta de
libre disposicion todos aquellos bienes de los que
no he dispuesto aun en favor de mis hijos en la
escritura de reparticion precitada y que
excedieran de la mitad de gananciales que le
corresponds tal como arriba declare, incluyendo
todos aquenos bienes que se adquiriesen por
nosotros despues de otorgado por mi este
testamento.
Para el caso de que Dios dispusiera que yo
sobreviviera a mi esposo declaro que es mi
voluntad que todas las propiedades de todo
genero que me pertenecen y me pudieran
pertenecer,no dispuestas aun en la reparticion, se
dividan por igual entre mis herederos
mencionados despues de mi muerte.
Again for purposes of clarity and convenience, the above portion
states: t êñ.£îhqwâ£
I leave to my spouse Don Jesus Alsua as his
legitime and as his inheritance the part of the free
portion of my property w hich have not been
allocated in favor of my children in the Document
of Partition aforecited and that w hich should
exceed 1/2 of the conjugal property of gains that
pertains to him as above stated, including all
those properties w hich w e shall acquire after the
execution of this document.
In case it should be God's w ill that I survive my
spouse,I hereby declare that it is my w ill that any
and all kinds of property that pertains to me or
w ould pertain to me, w hich have not been
disposed of pursuant to the partition, should be
divided equally among my above-mentioned
heirs after my death.
The children, therefore, w ould only receive equal shares in the
remaining estate of Doñ;a Tinay in the event that she should be the
surviving spouse. To stress the point, Doñ;a Tinay did not oblige her
husband to give equally to the children, upon his death, all such
properties she w as bequeathing him.
Considering now the efficacy of Don Jesus' last w ill and testament
executed on November 14, 1959 in view of Our holding that Doñ;a
Tinay's w ig and codicil did not stipulate that Don Jesus w ill bestow the
properties equally to the children, it follow s that all the properties of
Doñ;a Tinay bequeathed to Don Jesus under her holographic w in and
codicil became part of Don Jesus' estate unburdened by any
condition obligation or proviso.
Respondents insist that Don Jesus w as bound by the extrajudicial
partition of November 25, 1949 and had in fact conformed to said
Partition by making a holographic w ill and codicil w ith exactly the
same provisions as those of Doñ;a Tinay, w hich respondent court
sustained. We rule, how ever, that Don Jesus w as not forever bound
thereby for his previous holographic w ill and codicil as such, w ould
remain revokable at his discretion. Art. 828 of the new Civil Code is
clear: "A w in may be revoked by the testator at any time before his
death. Any w aiver or restriction of this right is void." There can be no
restriction that may be made on his absolute freedom to revoke his
holographic w ill and codicil previously made. This w ould still hold true
even if such previous w ill had as in the case at bar already been
probat ed (Palacios v. Palacios, 106 Phil. 739). For in the first place,
probate only authenticates the w ill and does not pass upon the
efficacy of the dispositions therein. And secondly, the rights to the
succession are transmittedonly from the moment of the death of the
decedent (Article 777,New Civil Code). In fine,Don Jesus retained the
liberty of disposing of his property before his death to whomsoever he
chose, provided the legitime of the forced heirs are not prejudiced,
w hich is not herein claimed for it is undisputed that only the free
portion of the w hole Alsua estate is being contested.
After clearly establishing that only Don Jesus w as named as sole heir
instituted to the remaining estate of Doñ;a Tinay in her holographic w ill
and codicil resulting in all such properties becoming the properties of
Don Jesus alone,and after clearly pointing out that Don Jesus can, in
law , revoke his previous holographic w ill and codicil, by making
another w in expressly cancelling and revoking the former, the next
issue for the Court's resolution is the validity of the provisions of the
contested w ill. Though the law and jurisprudence are clear that only
questions about the extrinsic validity of the will may be entertained by
the probate court, the Court had, on more than one occasion,
passed upon the intrinsic validity of a w ill even before it had been
authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA
499: t êñ.£îhqwâ£
The parties shunted aside the question of w hether
or not the w ill should be allow ed to probate. For
them, the meat of the case is the intrinsic validity
of the w ilt Normally this comes only after the court
has declared that the w ill has been duly
authenticated. ...
... If the case w ere to be remandedfor probate of
the w ilt nothing w ill be gained. On the contrary,
this litigation w in be protracted and for ought that
appears in the record, in the event of probate or if
the court rejects the w ill probability exists that the
case w in come up once again before us on the
issue of the intrinsic validity or nullity of the w ilt
Result: w asteof time, effort, expense, plus added
anxiety. These are the practical considerations
that induce us to a behalf that w e might as w ell
meet head-on the time of the validity of the
provisions of the w ill in question. ...
The last Will and Testament of Don Jesus executed on November 14,
1959 contained an express revocation of his holographic w ig of
January 5, 1955 and the codicil of August 14, 1956; a statement
requiring that all of his properties donated to his children in the Deed
of 1949 be collated and taken into account in the partition of his
estate; the institution of all his children as devisees and legatees to
certain specific properties; a statement bequeathing the rest of his
properties and all that may be acquired in the future, before his
death, to Pablo and Francesca; and a statement naming Francesca
as executrix w ithout bond.
Considering these testamentary provisions, a close scrutiny of the
properties distributed to the children under the Deed of 1949 and
those distributed under the contestedw ill of Don Jesus does not show
that the former had in fact been included in the latter. This being so, it
must be presumed that the intention of Don Jesus in his last w in w as
not to revoke the donations already made in the Deed of 1949 but
only to redistribute his remaining estate,or that portion of the conjugal
assets totally left to his free disposal and that w hich he received as his
inheritance from Doñ;a Tinay. The legitimes of the forced heirs w ere
left unimpaired, as in fact, not one of said forced heirs claimed or
intimated otherw ise. The properties that w ere disposed of in the
contested w ill belonged w holly to Don Jesus Alsua's free portion and
may be diamond of by him to w homsoever he may choose.

34. 34
If he now favored Francesca more, as claimed by private
respondents,or Pablo as in fact he w as,We cannot and may not sit in
judgment upon the motives and sentiments of Don Jesus in doing so.
We have clearly laid dow n this rule inBust amant e v. Arevalo, 73 Phil.
635, to w it: t êñ.£îhqwâ£
... nevertheless it w ould be venturesome for the
court to advance its ow n Idea of a just distribution
of the property in the face of a different mode of
disposition so clearly expressed by the testatrix in
the latter w ill. ...
It w ould be a dangerous precedent to strain the
interpretation of a w ill in order to effect w hat the
court believes to be an equitable division of the
estate of a deceased person. The only functions of
the courts in these cases is to carry out the
intention of the deceased as manifested in the
w ig. Once that intention has been determined
through a careful reading of the w ill or w ills, and
provided the law on legitimes has not been
violated, it is beyond the place of judicial
cognizance to inquire into the fairness or
unfairness of any devise or bequeast. The court
should not sit in judgment upon the motives and
sentiments of the testatrix,first,because as already
stated, nothing in the law restrained her from
disposing of her property in any manner she
desired, and secondly, because there are no
adequate means of ascertaining the inw ard
process of her conscience. She w as the sole judge
of her ow n attitudetoward those w ho expected
her bounty. ...
Respondent court, in trying to rationalize the w ill of Don Jesus w hich
allegedly benefitedand favored the petitioner to theprejudice of the
other heirs w ho w ould have been entitled to an equal share under the
extrajudicial partition of 1949,faced tw oalternatives-one, to consider
Don Jesus as a man of culture and honor and w ould not snow himself
to violate the previous agreement, and the other as one w hose
mental faculties or his possession of the same had been diminished
considering that w hen the will was executed,he w as already 84 years
of age and in view of his w eakness and advanced age, the actual
administration of his properties had been left to his assistant Madarieta
w ho,for his part received instructions from Francisco and her husband,
Joseph Betts. According to the court, the better explanation is the
latter,w hich is not legally tenable. Under Article 799 of the New Civil
Code w hich provides as follow s: t êñ.£îhqwâ£
Art. 799. To be of sound mind, it is not necessary
that the testator be in full possession of all his
reasoning faculties, or that his mind be w holly
unbroken, unimpaired,or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator w as able at the
time of making the w ill to know the nature of the
estate to be disposedof,the proper objects of his
bounty, and the character of the testamentary
act,
The test of testamentary capacity is at the time of the making of the
w in. M ereweakness of mind or partial imbecility from disease of body
or from age-does not render a person incapable of making a
w ill. t êñ.£îhqwâ£
Betw een the highest degreeof soundness of mind
and memory which unquestionably carries w ith it
full testamentary capacity, and that degrees of
mental aberration generally know n as insanity or
Idiocy, there are numberless degrees of mental
capacity or incapacity and w hile on one hand it
has been held that mere w eakness of mind, or
partial imbecility from disease of body, or from
age, w ill not render a person incapable of making
a w ill;a w eak or feebleminded person may make
a valid w ill, provided he has understanding and
memory sufficient to enable him to know w hat he
is about to do and how or to w hom he is disposing
of his property. To constitute a sound and
disposing mind, it is not necessary that the mind
be unbroken or unimpaired or unshattered by
disease or otherw ise. It has been held that
testamentary incapacity does not necessarily
require that a person shall actually be insane or of
unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).
The Civil Code itself provides under Article 798 that in order to make a
w ill,it is essential that the testator be of sound mind at the time of its
execution,and under Article 800, the law presumes that every person
is of sound mind in the absence of proof to the contrary. In the case at
bar, the acceptance by the respondent court of the findings of fact
of the trial court on the due execution of the last w in and testament of
Don Jesus has foreclosed any and all claim to the contrary that the will
w as not executed in accordance w ith the requirements of the law .
But more than that, gleaned from the quoted portions of the
appealed decision,the described behavior of Don Jesus is not that of
a mentally incapacitated person nor one suffering from "senile
dementia" as claimed by private respondents. From these accepted
facts, We find that: (a) it w as Don Jesus himself w ho gave detailed
instructions to his law yer as to how he w anted to divide his properties
among his children by means of a list of his properties should pertain;
(b) the semi-final draft of the contested w ill prepared by his law yer w -
as even corrected by Don Jesus; (c) on the day of the signing of the
w ill at his house in Ligao, "Don Jesus w as in bright and lively spirits ...,
leading in the conversation w hich ran from problems of farming and
the merits of French-made w ines"; (d) the signing of the w ill by Don
Jesus and his attesting w itnesses w as made after a statement from
Don Jesus of the purpose of their meeting or gathering, to
w it: t êñ.£îhqwâ£
Precisamente es por lo que he Ilamado a ustedes
que eaten presentes para ser testigosde mi ultima
voluntad y testamentoque ha sido preparado por
el abogado Sr. Gregorio Imperial segun mis
instrucciones cuyo documents tengo aqui con
migo y encuentro que, despues de lo he leido,
esta satisfactoriamente hecho segun mis
ingtrucciones, Como saben ustedes tengo cuatro
(4) hijos todos ellos.
Clearly then,Don Jesus knew exactly w hat his actions w ere and the
fun implications thereof.
In rejecting probate of the w ilt respondent court further pointed out
other details w hich,in the w ords of the decision "are a little bit difficult
to reconcile w ith the ordinary course of things and of fife" such as the
fact that Don Jesus had sought the probate of his w ill of January 5,
1955 and his codicil of August 14, 1956 during his lifetime but insofar as
the w ill of November 14, 1959 is concerned, he had no intention of
seeking the probate thereof during his lifetime,the alleged redundant
and unnecessary proceedings undertaken by Don Jesus in the
properties under question to petitioner Franciso Alsua-Betts w hen the
same properties had already been bequeathed to her in the w ill of
November 14, 1959 and that "nothing, absolutely nothing, could be
made the basis for finding that Don Jesus Alsua had regarded his
other children w ith less favor, and that he w as more sympathetic to
Francisca so as to or forget the former depriving them of benefits
already given to them and rewarding thelatter with disproportionate
advantages or benefits,to such an extreme as to violate his previous
disposition consecrated in the previous extrajudicial partition, Exh. 8."

35. 35
We agree w ith the petitioner that these details w hich respondent
court found difficult to reconcile w ith the ordinary course of things and
of life are mere conjectures,surmises or speculations w hich, how ever,
do not w arrant or justify disallowance of the probate of the win of Don
Jesus. The fact that Don Jesus did not cause his w ill to be probated
during his lifetime w hile his previous holographic w in and codicil w ere
duly probated w hen he w as still alive is a mere speculation w hich
depends entirely on the discretion of Don Jesus as the testator. The
law does not require that a will be probated during the lifetime of the
testator and for not doing so there cannot arise any favorable or
unfavorable consequence therefrom. The parties cannot correctly
guess or surmise the motives of the testator and neither can the courts.
Such surmise, speculation or conjecture is no valid and legal ground to
reject allow ance or disallowance of the w ig. The same thing can be
said as to w hatever reason Don Jesus had for selling the properties to
his daughter Francisca w hen he had already assigned the same
properties to her in his w ill. While We can speculate that Don Jesus
desired to have possession of the properties transferred to Francisca
after the sale instead of w aiting for his death may be a reasonable
explanation or speculation for the act of the testator and yet there is
no certainty that such w as actually the reason. This is as good a
conjecture as the respondents may offer or as difficult to accept
w hich respondent court believes. A conjecture is alw ays a conjecture;
it can never be admitted as evidence.
Now ,the annulment case. The only issue raised anent the civil case for
annulment of the tw o Deeds of Sale executed by and betw een Don
Jesus and petitioner Francisco is their validity or nullity. Private
respondents mainly contend that the sales werefictitious or simulated,
there having been no actual consideration paid. They further insist
that the issue raised is a question of fact and, therefore, not
review ablein a certiorari proceeding before the Supreme Court. On
the other hand, petitioners herein maintain that it w as error for the
respondent court to set aside on appeal the factual findings of the
trial court that the tw o sales w ere valid.
It is true that the jurisprudence of this Court in cases brought to Us from
the Court of Appeals is limited to review ing and revising the errors of
law imputed to it, its findings of fact being conclusive; and this same
principle applies even if the Court of Appeals w as in disagreement
w ith the lower court as to the weight of evidence w ith a consequent
reversal of its findings of fact. But w hat should not be ignored by
law yers and litigants alike is the more basic principle that the "findings
of fact" described as "final" or "conclusive" are those borne out by the
record or those w hich are based upon substantial evidence. The
general rule laid dow n by the Supreme Court does not declare the
absolute correctness of all the findings of fact made by the Court of
Appeals. These are exceptions to the general rule, w here We have
review ed and revised the findings of fact of the Court of Appeals.
Among the exceptions tothe rule that findings of fact by the Court of
Appeals cannot be review ed on appeals by certiorari are:
1. When the conclusion is a finding grounded entirely on speculation,
surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257);
2. When the inference made is manifestly mistaken, absurd or
impossible (Luna vs. Linatok, 74 Phil. 15);
3. Where there is a grave abuse of discretion (Buyco vs. People, 51
O.G. 2927);
4. When the judgment is based on a misapprehension of facts (Cruz
vs. Sosing, L-4875, Nov. 27, 1953);
5. When the findings of fact are conflicting (Casica vs. Villaseca, L-
9590, April 30, 1957); and
6. When the Court of Appeals, in making its findings, w ent beyond the
issues of the case and the same is contrary to the admissions of both
appellant and appellee (Evangelists vs. Alto Surety & Ins. Co., L-11139,
April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA
289).
In the case at bar, We find and so declare that the respondent court's
conclusion as to the nullity of the contested sales w as not supported
by the evidence on record and adduced during the trial.
Evident from the records are the follow ingdocumentary evidence: (1)
Exhibit U, a deed of sale over agricultural lands executed on August
26, 1961 by Don Jesus in favor of Francisca for the consideration of
Seventy Thousand Pesos (P70,000.00), w hich document bears the
signature of Don Jesus,not assailed as a forgery, and the signature of
Pablo Alsua as an instrumental w itness,again not assailed as a forgery
nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed
of sale over urban lots executed on November 16, 1962 for the
consideration of Eighty Thousand Pesos (P80,000.00),w hich document
also bears the signature of Don Jesus, also admittedly not a forgery.
(3) Exhibit "F", a document dated August 26, 1961 and signed by Don
Jesus and Pablo Alsua as w itness,acknow ledging receipt of a Bank of
Philippine Island Check No. 0252 in the amount of Seventy Thousand
Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to
Francisco under the same date; again, Pablo did not deny the
genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine
Islands Check No. D-6979 dated November 26,1962,in the amount of
P32,644.71,draw n and signed by Francesca,payable to Don Jesus. (5)
Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980)
also dated November 26,1962 in the amount of ?47,355.29, draw n by
Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ",
endorsements on the back of the last two checks by Don Jesus, again,
his signatures thereon w ere not assailed. (7) Exhibit "A" (in the
annulment case),a Bureau of Internal Revenue Receipt (No. 2347260)
dated November 29,1962 with a notation acknowledgingthe receipt
of BPI Check No. D-6980 in the amount of P47,355.29 from Don Jesus
Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19
plus interest. We are convinced and satisfied from this array of
documentary evidence that in fact, Don Jesus sold the subject
properties to his daughter, Francisca for the total consideration of
P150,000.00.
The claim of the private respondents that the sales w ere fictitious and
void for being w ithout cause or consideration is as w eak and flimsy as
the ground upon w hich the respondent court upheld said claim on
the basis that there w as no need for funds in Don Jesus' old age aside
from the speculation that there w as nothing in the evidence that
show ed w hat motivated Don Jesus to change his mind as to favor
Francesca and discriminate against the other children. The tw o
contracts of same executed by Don Jesus in favor of Francesca are
evidenced by Exhibits "U" and "W", the genuineness of w hich w ere not
at all assailed at any time during this long draw n-out litigation of 15
years standing. That the consideration stated in the contracts w ere
paid is also sufficiently proved as the receipts thereof by Don Jesus
w ere even signed by one of the private respondents, Pablo Alsua, as
a w itness. The latter cannot now deny the payment of the
consideration And even of he now allege that in fact no transfer of
money w as involved, We find his allegation belied by Exhibits "X-3 "
and "X-5 ", w hich show that the checks of Francisco made payable to
Don Jesus. w ere in fact given to Don Jesus as he endorsed them on
the back thereof, and most specifically Exhibit "A" in the annulment
case, w hich proved that Don Jesus actually used Exhibit "XI " to
complete payment on the estateand inheritance tax on the estate of
his w ife to the Bureau of Internal Revenue.
Private respondents further insist that the sales w ere fraudulent
because of the inadequacy of the given price. Inadequacy of
consideration does not vitiate a contract unless it is proven w hich in
the case at bar w as not, that there w as fraud, mistake or undue
influence. (Article 1355,New Civil Code). We do not find the stipulated
price as so inadequate to shock the court's conscience, considering
that the price paid w as much higher than the assessed value of the
subject properties and considering that the sales w ere effected by a
father to her daughter in w hich case filial love must be taken into
account.

36. 36
WHEREFORE, IN VIEW OF THE FOREGOING,the decision appealed from
is hereby set aside. The decision of the Court of First Instance Of Albay
in Special Proceedings No. 699 and Civil Case No. 3068 is hereby
reinstated, w ith costs against respondents.
SO ORDERED.
G.R. No. L-6322 February 21, 1912
DOLORES AVELINO, as administratrix of the estate of Pascual de la
Cruz, plaintiff-appellee,
vs.
VICTORIANA DE LA CRUZ, defendant-appellant.
Buencamino, Diokno, Mapa, Buencamino, Jr. Plat on & Lont oc for
appellant .
Alfonso Mendoza for appellee.
JOHNSON, J.:
The present is an appeal from an order of the Honorable George N.
Hurd, judge of the Court of First Instance of the city of M anila, in w hich
he had legalized the w ill of the said Pascual de la Cruz, deceased.
The contention of the opponent is that at the time of the making of
the w ill the said Pascual de la Cruz w as blind and had been for a
number of years,and w as incompetent to make the w ill in question.
Against this contention of the opponent, all of the w itnesses w ho
signed the w ill w erecalled as w itnesses, and each declared that the
deceased w as of sound mind at the time said will was made and fully
understood its contents and signed the same in their presence and
that they each signed the w ill in the presence of each other, as w ell
as in the presence of the deceased.
The appellant attempted to show that the deceased w as
incompetent to make his w ill because he w as blind at the time the
same w as executed and had been for several years theretofore.
There is absolutely no proof to show that the deceased w as
incapacitated at the time he executed his w ill. No presumption of
incapacity can arise from the mere fact that he w as blind. The only
requirement of the law as to the capacity to make a w ill is that the
person shall be of age and of sound mind and memory. (Sec. 614,
Code of Procedure in Civil Actions.) Section 620 of the same code
prohibits blind persons from acting as w itnesses in the execution of
w ills, but no limitation is placed upon the testamentary capacity,
except age and soundness of mind.
In our opinion the record contains nothing w hich justifies the
modification of the order made legalizing the will in the present case.
The order of the low er court admitting to probate and legalizing the
w ill in question is therefore hereby affirmed w ith costs.
Arellano, C.J., Torres, Carson, Moreland and Trent , JJ., concur.
G.R. No. L-17627 June 8, 1922
In re will of Marcelo Jocson, deceased,
RAFAEL JOCSON, ET AL., petitioners-appellees,
vs.
ROSAURO JOCSON, ET AL., opponents-appellants.
Aranet a & Zaragoza for appellant s.
M. Fernandez Yanson, Pio Sian Melliza and Mont inola, Mont inola &
Hont iveros for appellees.
VILLAMOR, J.:
On June 10, 19120, Rafael Jocson, Cirilo M anlaque, and Filomena
Goza presented a petition in the court below for the probate of the
document Exhibit A, as the last w ill and testament of the deceased
M arcelo Jocson. This petitioner w as opposed by Rosauro, Asuncion,
and Dominga Jocson,alleging that: (a) The supposed will was not the
last w ill of the deceased, and the signatures appearing thereon, and
w hich are said to be of the testator,are not authentic;(b) the testator,
that is, the deceased, w as not of sound mind and w as seriously ill at
the time of its execution;and (c) the supposed w ill was not executed
in accordance w ith the law .
After trial the low er court rendered decision finding, among other
things, as follow s:
For all of the foregoing reasons the court finds that some
hours before,during and one hour after,the execution of his
w ill,M arcelo Jocson w asof sound mind;that he dictated his
w ill in Visaya, his ow n dialect; that he signed his w ill in the
presence of three w itnesses at the bottom, and on each of
the left margins of the three sheets in w hich it w as w ritten;
that said three w itnesses signed the w ill in the presence of
the testator and of each other, all of w hich requirements
make the documents Exhibit A a valid w ill, in accordance
w ith the provision of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645.
By virtue thereof, it is adjudged and decreed that the
document Exhibit A Is the last w ill and testament of the
deceased M arcelo Jocson,and it is ordered that the same
be admitted to probate, and Rafael Jocson is hereby
appointed administrator of the estateleft by said deceased,
upon the filing of a bond in the sum of fifteen thousand
pesos (P15,000).
The appellants allege that thetrial court erred in holding that Exhibit A
is the last w ill and testament of the deceased M arcelo Jocson, and in
ordering and decreeing the probate thereof as his last w ill.
All the arguments advanced by the appellants tend to show that the
testator M arcelo Jocson, at the time of executing the w ill, did not
have the mental capacity necessary therefor; that said w ill w as not
signed b the w itnesses in the presence of the testator; that the
w itnessesdid not sign the w ill in the presence of each other; and that
the attestation of the supposedw ill does not state that the w itnesses
signed in the presence of the testator.
All of these points raised by the appellants werediscussed at length by
the trial court upon the evidence introduced by the parties. After an
examination of said evidence, w e are of the opinion, and so hold,
that the findings made by the trial court upon the aforesaid point are
supported by the preponderance of evidence.
We have noticed certain conflicts betw een the declarations of the
w itnesses on some details prior to, and simultaneous w ith, the
execution of the w ill, but to our mind such discrepancies are not
sufficient to raise any doubt as to the veracity of their testimony. In the
case of Bugnao vs. Ubag (14 Phil., 163), it w as held:
While a number of contradictions in the testimony of alleged
subscribing w itnesses to a will as to the circumstances under
w hich it w as executed, or a single contradiction as to a
particular incident to w hich the attention of such w itnesses
must have been directed, may in certain cases justify the
conclusion that the alleged w itnesses w ere not present,
together,at the time when the alleged will wasexecuted, a
mere lapse of memory on the part of one of these witnesses
as to the precise details of an unimportant incident, to
w hich his attention w as not directed, does not necessarily

37. 37
put in doubt the truth and veracity of the testimony in
support of the execution of the w ill.
As to the mental capacity of the testator at the time of executing his
w ill,the finding of the trial court that the testator was of sound mind at
the time of dictating and signing his w ill is supported by the evidence.
This court, in the case of Bagt as vs. Paguio (22 Phil., 227), held:
To constitute a sound mind and disposing memory it is not
necessary that the mind shall be w holly unbroken,
unimpaired, and unshattered by disease or otherw ise, or
that the testator be in full possession of all his reasoning
faculties. Failure of memory is not sufficient unless it be total
or extend to his immediate family or property.
And in Bugnao vs. Ubag, supra, it w as declared:
Proof of the existence of all the elements in the follow ing
definition of testamentary capacity, w hich has frequently
been adopted in the United States, held sufficient to
establish the existence of such capacity in the absence of
proof of very exceptional circumstances: "Testamentary
capacity is the capacity to comprehend the nature of the
transaction in w hich the testator is engaged at the time, to
recollect the property to be disposed of and the persons
w ho w ould naturally be supposed to have claims upon the
testator, and to comprehend the manner in w hich the
instrument w ill distribute his property among the objects of
this bounty."
Whether or not the w itnesses signed the w ill in the presence of the
testator and w hether or not they signed in the presence of each
other,are questions of fact that must be decided in accordance w ith
the evidence. The trial judge,w ho tried this case and saw and heard
the w itnesses w hile testifying, held that these solemnities w ere
complied w ith at the execution of the w ill in question and w e find no
reason for altering his conclusions.
The objection to the attestation of Exhibit A is groundless if the terms
thereof are considered,w hich,translated from the Visayan dialect, in
w hich the w ill w as w ritten, into English, says:
We, w itnesses,do hereby state that the document w ritten
on each side of the three sheets of paper w as executed,
acknow ledged, signed, and published by the testator
abovenamed,M arcelo Jocson,w ho declared that it was his
last w ill and testament in our presence and, at his request
and all of us being present, w e signed our named on the
three sheets of paper as w itnessesto this will in the presence
of each other. (Translation of Exhibit A, page 18,
documentary evidence.)
The judgment appealed from is affirmed w ith the costs against the
appellants. So ordered.
Araullo, C.J., Malcolm, Avanceña, Ost rand and Romualdez, JJ.,
concur.
G.R. No. L-41947 December 29, 1936
In re will of Silvestra Baron. VIVENCIO CUYUGAN, petitioner-appellant,
vs.
FAUSTINA BARON, ET AL., oppositors-appellees.
Jose P. Laurel, PedroSabido, and DeWitt,Perkins and Ponce Enrile for
appellant .
Vicent e J. Francisco, Eusebio Orense,and ArturoJoven for appellees.
R E S O L U T I O N
ABAD SANTOS, J.:
The decision in this case, affirming that the low er court, w as rendered
in favor of the appellees on January 16, 1936, 1 by a majority of six
w ith four dissenting votes. Under the rules of this court the appellant
had fifteen days to apply for a reconsideration of this decision,the last
day of said period being the 31st of said month. On the 24th of said
month the appellant asked for an extension of said period by seven
days, alleging that he w ould file an alternative petition for
reconsideration of the decision rendered therein or for a new trial and
that,due to the length of the printed pleadings to be filed by him to
this effect, it w ould be impossible for him to do so w ithin the period
fixed by law . This petition w as denied. On the 31st of said month, at 4
o'clock p. m. the appellant filed his alternative petition for
reconsideration or for a new trial supported by a printed brief
consisting of 109 pages and an appendix of 28 pages. On said date,
at 7 o'clock in the evening, the court denied said petition for
reconsideration w ith the same division of votes, minus that of one of
the dissenting justices w ho w as absent. One of the attorneys for the
appellant received notice of said resolution on February 3rd. It does
not appear that the other attorneys for the appellant received said
notice earlier and it is reasonable to suppose that they received it at
the same time, particularly taking into consideration the fact that it
could not have been prepared or sent until February 1st on w hich
there w as office for only a half day, being Saturday, and could not
have been received in the ordinary course until M onday,February 3d,
as the follow ing day, the second of said month, w as Sunday.
It is inferred from section 39 of the Rules of this court that after a
motion for reconsideration is denied, one may still apply for leave to
file a second motion for said purpose.
On February 4th, the clerk of court remanded the case to the low er
court, for execution. On said date, after the case had been
remanded to the lower court,the appellant filed his petition for leave
to file a second motion for reconsideration or new trial alleging that
the court did not have sufficient time to consider the first motion. On
February 6th the appellant asked for the recall of the case from the
low er court and the retention thereof in this court until his petition for
leave to file a second motion for reconsideration or new trial is
decided. On M arch 21st the court granted to the appellant the
permission applied for and requested the trial court to return the
record to the office of the clerk of this court.
After the parties had argued the second motion for reconsideration or
new trial,the appellees,on October 6,1936,presented an affidavit of
Zacarias Nuguid, the appellant's principal w itness, retracting his first
testimony, in order that it may be taken into consideration by the
court in deciding the second motion for reconsideration or new trial.
On October 31st the court unanimously ordered the new trial of this
case pursuant to sections 496 and 505 of the Code of Civil Procedure.
The appellees excepted to and filed a motion for reconsideration of
this last resolution, w hich is the incident now under consideration by
this court.
The appellees allege that this court had no jurisdiction render its
resolution of October 31st on the ground that it had already lost it on
February 3d. This court finds this contention to be unfounded. When
the appellant applied for leave to file a second motion for
reconsideration or new trial on February 4th, this court still had
jurisdiction over the case and retained it by virtue of said application.
If, according to the rule, a party may yet apply for leave to file a
second motion for reconsideration after a motion for reconsideration is
denied, the court must retain its jurisdiction to grant or deny the
motion. In the case at bar this court granted the motion. The rule fixes
no time for the filing of said application for leave to file a second
motion for reconsideration. Of course a certain period of time must be
allow ed for the filing thereof because,otherwise, said provision of the

38. 38
rule w ould be w ithout any purpose. Without referring to the other
probable cases,it is evident that in the case at bar, as the application
w as filed on the day follow ing the receipt of notice of the denial of
the motion for reconsideration,w hich is the first day available for said
purpose (sec. 4, Code of Civil Procedure),it w as filed in due time. This
being so, the material fact that the case w as remanded to the trial
court a few hours after the filing of the application,w ithout said court's
having taken action by virtue of said remand, and, undoubtedly,
before receipt of the record, cannot affect the jurisdiction still had by
this court.
On the other hand,it cannot be stated that the petition for leave to
file a second motion for reconsideration must be presented w ithin the
same period of fifteen days for the filing of the first motion for
reconsideration,because the rule does not so state and because, if it
w ere so,it w ould be impossible tofile the petition in question where,as
in the present case, the first petition, for justifiable reasons, could not
be presented until the last day of said period.
Furthermore,the question whether or not,after a case is remanded to
the trial court for execution of the judgment rendered on appeal, this
court may still resume jurisdiction over said case and recall the record,
has precedents in the affirmative in our jurisprudence
(People vs. Santiago,G. R. No. 38677, M ay 14, 1934 and Nov. 1, 1934
[60 Phil., 1006, 1056]; and Ingsonvs. Olaybar, 52 Phil., 396). There are
likew ise precedents to that effect in American jurisprudence,
particularly of the Supreme Court of New York, according to the
follow ing note 90 (a) in 4 Corpus Juris, 1245, w hich reads:
(a) New York rule. — "It is often erroneously assumed that after the
filing of the remittitur in the court below , and order entered thereon,
this court is deprived of all jurisdiction in the cause. In Sw eet vs. Mow ry
(138 N. Y., 650; 34 N. E. 388), a motion for reargument w as granted,
and a return of the remittitur requested. These acts of the court w ere
held to be in resumption of jurisdiction. In Law rence vs. Church (128 N.
Y., 324;28 N. E., 499), a motion to amend the remittitur w as granted,
and the order entered requested the return of the remittitur by the
court below ,and w hen so returned it was ordered to be amended. In
M offett vs. Elmendorf (153 N. Y., 674; 48 N. E., 1105), a motion to
amend remittitur w as granted, and order entered that the remittitur
be recalled for that purpose. A like motion w as granted in
Buchanan vs. Little (155 N. Y., 635; 49 N. E., 1094). This later practice of
the court is not necessarily inconsistent w ith the earlier cases, w hich
hold that this court has no jurisdiction to grant a reargument or an
amendment of the remittitur after the remittitur is filed and acted
upon in the court below . (People vs. Neliston, 79 N. Y., 638;
Jones vs. Anderson, 71 N. Y., 599; Cushman vs.Hadfield, 15 Abb. Pr. NS
[N. Y.], 109; Wilmerdings vs. Fow ler, 15 Abb. Pr. NS. [N. Y.] 86.) It is
competent for this court to determine whether it w ill resume jurisdiction
for any purpose, and, having decided to do so, it then requests the
court below to return the remittitur so that the reargument can be had
or the remittitur amended, as the case may be. It is technically true
that this court must be repossessed of the remittitur before an order
made in the cause is effectual, but there is no objection to the return
of the remittitur follow ing the determination of this court to resume
jurisdiction." (Franklin Bank Note Co. vs. M ackey, supra.)
It must furthermore be taken into consideration that when this court, in
its order of the 31st of October last,ordered the new trial of the case,it
did so for the benefit of not only the appellant but also of the
appellees. As already stated, the appellees, on October 6th,
presented an affidavit of Zacarias Nuguid, principal w itness for the
appellant, retracting his former testimony, to be taken into
consideration by this court in deciding the second motion for
reconsideration or new trial filed by the appellant. Thecourt,how ever,
can not take into consideration said retraction if it is not presented in
the case by means of a new trial or, unless it be for the purpose of
ordering a new trial. For this reason the court, in decreeing a new trial
in its order of October 31st, in the broadest sense provided therein,
had in mind to give opportunity not only to the appellant to present
his new evidence but also to the appellees to present the retraction of
the w itness Nuguid.
This court is aw are of the fact that the new trial will cause delay in the
termination of the case but if this is necessary in order to administer
justice or to correct a judicial error, the delay w ould be justified.
How ever,if the parties, after three days from the receipt of notice of
this resolution,signify their desire to w aive the presentation of said new
evidence and to submit the case upon its merits, this court w ould be
w illing to do so.
In the meantime, the reconsideration sought by the appellees is
denied and the order is on October 31st of this year stands. So
ordered.
Avanceña, C. J., Villa-Real, Imperial, Diaz, and Concepcion, JJ.,
concur.
G.R. No. L-6625 October 24, 1911
JUANA CAGUIAO, administratix of the estate of the deceased Emigdio
Zarate, petitioner-appellee,
vs.
MARIA CALDERON, opponent-appellant.
M. Legaspi Florendo, for appellant .
Pedro Ma. Sison, for appellee.
JOHNSON, J.:
It appears from the record that the plaintiff,upon the 17th of February,
1910, presented in the Court of First Instance of the Province of
Pangasinan, praying for the probation of the last w ill and testament of
Emigdio Zarate,deceased,in conformity w ith section 630 of the Code
of Procedure in Civil Actions. The petition w as accompanied by the
original w ill, marked "Exhibit A," of said Emigdio Zarate.
Due notice of said petition w as given in accordance w ith law,and the
hearing for the probation of said w ill w as fixed for the 9th of M arch,
1910. Later the said hearing w as transferred to the 16th of July, 1910.
On the latter date the said M aria Calderon appeared, by her
attorney,and opposed the probation of said w ill upon the follow ing
grounds:
1. That the said Emigdio Zarate w asmentally incapacitated
at the time he authorized and signed his w ill.
2. That he executed the said w ill under illegal and undue
influence or persuasion on the part of some persons w ho
acted in behalf of the beneficiaries or heirs.
3. That the signature of the testator wasobtained by deceit
or fraud, for the reason that it w as not his intention that all
that w as recorded in the said instrument should be his w ill at
the time he signed it; for the testator had informed the
opponent, M aria Calderon, before and after the said w ill
had been signed,that he had not disposed of the one-half
of the house and lot now mentioned in the third clause,
latter (a), of the said w ill, because the said testator
recognized that the house and lot referred to belonged to
the said M aria Calderon.
Therefore, the opponent prays the court to annul the w ill
alleged to have been executed by Emigdio Zarate, and to
order that its probate be dissallowed,w ith the costs against
the petitioner.

39. 39
After hearing the evidence adduced pro and con, the low er court
reached the follow ing conclusion:
It having been proved completely on the part of the
petitioner that the will in question wasexecuted and signed
in entire conformity with all the requirements and solemnities
set out in the Code of Civil Procedure, the court overrules
the opposition, sustains the petition, admits to probate
Exhibit A, holding that the same is legal in all its parts as the
last w ill and testament of the deceased Emigdio Zarate.
From that conclusion of the low er court, the oppositor appealed to
this court and made the follow ing assignments of error:
I. The court erred in holding that the deceased, Emigdio
Zarate,w as in the full possession of his mental faculties at the
time of the execution of his w ill.1awphil.net
II. The court erred in holding that the said Emigdio Zarate
executed his last w ill and testament w ithout illegal
persuasion or influence on the part of persons w orking in
behalf of the heirs.
III. The court erred in holding that Emigdio Zarate executed
and signed his last w ill w ithout fraud and deceit being
brought to bear upon him.
IV. The court erred in holding that the testator signed his w ill
in the presence of four w itnesses, Sabino Sandoval, Esteban
Sandoval,George Zarate and Eugenio Zarate,w ho,on their
part, signed, each of them, in the presence of the others.
V. The court erred in holding that it w as proved that the w ill
in question w as executed and signed i conformity w ith the
requirements and solemnities set out in the Code of Civil
Procedure.
VI. The court erred in holding that the document Exhibit A, of
the petitioner, is legal in all parts, as the last w ill and
testament of the deceased Emigdio Zarate.
VII. The court erred in rendering judgment in this matter
w ithout w aiting for the w ritten argument of both sides.
VIII. The court erred in not holding that all the proof taken
together sustained the claim of the oppositor, M aria
Calderon.
IX. The court erred in imposing the costs upon the oppositor.
With reference to the first assignment of error abovenoted, it appears
from the record that upon the 13th day of January, 1910, Emigdio
Zarate executed his last w ill and testament, the original of w hich
appears in the record and is marked "Exhibit A." Emigdio Zarate died
on the 19th day of January, 1910.
From an examination of said Exhibit A it appears to have been signed
by Emigdio Zarate and by four w itnesses,Sabino M . Sandoval,Esteban
Sandoval, George Zarate and Eugenio Zarate. From the record it
appears that the testator dictated his w ill in the Pangasinan dialect
and it w as then translated into Spanish. After the will had been w ritten
in Spanish it w as read to the deceased and translated to him in the
Pangasinan dialect, and, according to the allegations of the
appellee, the said Exhibit A received his approval as his last w ill and
testament.
The appellant alleges that at the time of the execution of the said
alleged w ill of Emigdio Zarate, he w as not in the full possession of his
mental faculties. This question was presented to the low er court. After
hearing the evidence, the low er court found that Emigdio Zarate, at
the time of the execution of the said w ill, w as in the possession of his
faculties. Tw o of the w itnesses w ho signed the w ill, as w ell as others
w ho w erepresent in the house at the timethe said w ill was executed,
testified that in their opinion Emigdio Zarate w as of sound mind and
memory at the time he signed the said w ill. Practically the only
testimony tothe contrary adduced during the trial of the cause in the
low er court w as the testimony given by tw o doctors, one of w hom
had not seen the deceased for many months before his death,w hose
testimony w as based w holly upon hypothetical questions.
The appellant attempted to show that Emigdio Zarate for some
months prior to his death had been troubled w ith insomia, as w ell as
some other physical infirmities. The hypothetical questions were based
upon the question w hether or not a person w ho had been suffering
w ith insomia for some months w ould have sufficient mental capacity
to execute a w ill. The tw o doctors w ho appeared on behalf of the
opponents testified that insomia tended to destroy the mental
capacity, but that there w ere times,even during the period while they
w ere suffering from insomia, w hen they w ould be perfectly rational.
Even admitting that there w as some foundation for the supposition
that Emigdio Zarate had suffered from the alleged infirmities, w e do
not believe that the testimony w as sufficiently direct and positive,
based upon the hypothetical; questions, to overcome the positive
and direct testimony of the witnesses whowerepresent at the time of
the execution of the w ill in question. The evidence adduced during
the trial of the case, show s a large preponderance of proof in favor of
the fact that Emigdio Zarate w as in the full possession of his mental
faculties at the time he executed his last w ill and testament.
The second and third assignments of error may be considered
together. Upon the question presented by the said assignments of
error, the low er court found from the evidence that Emigdio Zarate
executed his last w ill and testament without threats, force or pressure
or illegal influence. The basis of the claim that undue influence had
been exercised over Emigdio Zarate is that a day or tw o before the
said w ill w as made, it is claimed by the opponent, M aria Calderon,
that the deceased promisedto will to her a certain house (one-half of
w hich seems to belong to her) upon the payment by her to the
deceased and the said property w as not w illed to the defendant
herein. The agreement between Maria Calderon and the deceased,if
there w as an agreement,seemsto have been made betw een them
privately,at least at the timethe will was made the deceased made
no reference to it w hatever. Those present at the time the w ill w as
made and the w itnesses who signed thesame heard no statement or
conversation relating to the said agreement,between the opponent
herein and the deceased. There is no proof in the record w hich show s
that any person even spoke to the deceased w ith reference to the
w illing of the said house to the opponent. There is nothing in the
record to indicate in the slightest degreethat any person interested in
the w ill, or w ho w as present at the time of the making of the same,
induced or attempted to induce the deceased not to w ill the said
house to the opponent herein. The theory of the opponent that the
deceased did not w ill to her the house in question is a mere
presumption and there is not a scintilla of evidence in the record to
support it.
The fourth, fifth, and sixth assignments of error may be considered
together.
During the trial of the cause tw o of the persons who signed the w ill as
w itnesses appeared and testified. They testified that the deceased
signed the w ill in their presence and in the presence of the other
w itnessesto the will;that they each signed the w ill in the presence of
the testator and in the presence of the other witnesses; that the other
tw o witnessesw howerenot called also signed the will in the presence
of the testator and in he presence of each of the other w itnesses.
There is no sufficient proof in the record to overcome the declarations
of these w itnesses. We find no reason, therefore, for modifying the
conclusion of the low er court upon these assignments of error.

40. 40
With reference to the seventh assignment of error, to w it: that the
court erred in rendering judgment w ithout w aiting for the w ritten
arguments of both parties,it may be said that it is customary for courts
to w ait until the parties have presented their arguments before
deciding a cause, nevertheless, it is not reversible error for a court to
decide a cause w ithout waiting for w ritten arguments tobe presented
by the respective attorneys. It appears from the record (p. 102) that
the trial of the cause w as closed on the 5th of august, 1910, and that
the decision in the cause w as not rendered until the 5th of October,
1910, or until after tw o months had expired. There is nothing in the
record w hich show s that either of the attorneys during these tw o
months asked for additional time in w hich to present their w ritten
arguments. It also appears of record (p. 102) that the respective
attorneys asked for fifteen days' time w ithin w hich to present their
w ritten arguments. Thereis nothing in the record w hich show s whether
they presented their w ritten arguments presented before the decision
w as rendered in the cause, it w as clearly not the fault of the judge.
The arguments heretofore given seem to be sufficient also to answ er
the eight and ninth assignments of error.
Upon a full consideration of the evidence and the assignments of
error, w e are of the opinion that the will of Emigdio Zarate, deceased,
w as executed and signed in entire conformity w ith all the
requirements and solemnities required by law. Thereforethe judgment
of the low er court is hereby affirmed w ith costs.
Torres, Carson and Moreland, JJ., concur.
G.R. No. 6845 September 1, 1914
YAP TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicot e and Miranda for appellant s.
O'Brien and DeWit t for appellee.
JOHNSON, J.:
It appears from the record that on the 23d day of August, 1909, one
Perfecto Gabriel, representing the petitioner, Yap Tua, presented a
petition in the Court of First Instance of the city of M anila, asking that
the w ill of Tomasa Elizaga Yap Caong be admitted to probate, as the
last w ill and testament of Tomasa Elizaga Yap Caong, deceased. It
appears that the said Tomasa Elizaga Yap Caong died in the city of
M anila on the 11th day of August, 1909. Accompanying said petition
and attached thereto w as the alleged w ill of the deceased. It
appears that the w ill was signed by thedeceased,as w ell as Anselmo
Zacarias, Severo Tabora, and Timoteo Paez.
Said petition,after due notice w as given, w as brought on for hearing
on the 18th day of September, 1909. Timoteo Paez declared that he
w as 48 years of age;that he had know n the said Tomasa Elizaga Yap
Caong; that she had died on the 11th day of August, 1909; that
before her death she had executed a last w ill and testament; that he
w as present at the time of the execution of the same; that he had
signed the w ill as a w itness;that Anselmo Zacarias and Severo Tabora
had also signed said w ill as w itnesses and that they had signed the will
in the presence of the deceased.
Pablo Agustin also declared as a w itness and said that he w as 40
years of age; that he knew Tomasa Elizaga Yap Caong during her
lifetime; that she died on the 11th day of August, 1909, in the city of
M anila; that before her death she had executed a last w ill and
testament;that he w as present at the time said last will was executed;
that there w erealso present Timoteo Paez and Severo Tabora and a
person called Anselmo; that the said Tomasa Elizaga Yap Caong
signed the w ill in the presence of the w itnesses; that he had seen her
sign the w ill w ith his ow n eyes;that the witnesses had signed the w ill in
the presence of the said Tomasa Elizaga Yap Caong and in the
presence of each other; that the said Tomasa Elizaga Yap Caong
signed the w ill voluntarily, and in his judgment, she w as in the
possession of her faculties; that there w ere no threats or intimidation
used to induce her to sign the w ill; that she signed it voluntarily.
No further w itnesses werecalled and there w as no further opposition
presented to the legalization of the said w ill.
After hearing the foregoing w itnesses, the Honorable A. S. Crossfield,
judge, on the 29th day of September, 1909, ordered that the last w ill
and testament of Tomasa Elizaga Yap Caong be allow ed and
admitted to probate.The will was attached to the record and marked
Exhibit A. The court further ordered that one Yap Tua be appointed as
executor of the w ill,upon the giving of a bond, the amount of w hich
w as to be fixed later.
From the record it appears that no further proceedings w ere had until
the 28th of February, 1910, w hen Yap Ca Kuan and Yap Ca Llu
appeared and presented a petition, alleging that they w ere
interested in the matters of the said w ill and desired to intervene and
asked that a guardian ad lit em be appointed torepresent them in the
cause.
On the 1st day of M arch, 1910, the court appointed Gabriel La O as
guardian ad lit em of said parties. Gabriel La O accepted said
appointment, took the oath of office and entered upon the
performance of his duties as guardian ad lit em of said parties. On the
2d day of M arch, 1910, the said Gabriel La O appeared in court and
presented a motion in w hich he alleged, in substance:
First. That the w ill dated the 11th day of August,1909,and admitted to
probate by order of the court on the 29th day of September, 1909,
w as null, for the follow ing reasons:
(a) Because the same had not been authorized nor signed
by the w itnesses as the law prescribes.
(b) Because at the time of the execution of the w ill, the said
Tomasa Elizaga Yap Caong w as not then mentally
capacitated to execute the same, due to her sickness.
(c) Because her signature to the w ill had been obtained
through fraud and illegal influence upon the part of persons
w ho w ereto receivea benefit from the same,and because
the said Tomasa Elizaga Yap Caong had no intention of
executing the same.
Second. That before the execution of the said will,w hich they alleged
to be null, the said Tomasa Elizaga Yap Caong had executed another
w ill, w ith all the formalities required by law , upon the 6th day of
August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu w ere minors and
that, even though they had been negligent in presenting their
opposition to the legalization of the w ill, said negligence w as
excusable, on account of their age.
Upon the foregoing facts the court w as requested to annul and set
aside the order of the 29th day of September, 1909, and to grant to
said minors an opportunity to present new proof relating to the due
execution of said w ill. Said petition w as based upon the provisions of
section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their
petition for a new trial, attached to said petition the alleged w ill of
August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the
affidavits of Severo Tabora, Clotilde and Cornelia Serrano.

41. 41
Upon the 10th day of M arch,1910,upon the hearing of said motion for
a rehearing,the Honorable A. S. Crossfield, judge,granted said motion
and ordered that the rehearing should takeplace upon the 18th day
of M arch, 1910, and directed that notice should be given to the
petitioners of said rehearing and to all other persons interested in the
w ill. At the rehearing a number of w itnesses w ere examined.
It w ill be remembered that one of the grounds upon w hich the new
trial w as requested w as that the deceased, Tomasa Elizaga Yap
Caong, had not signed the w ill (Exhibit A) of the 11th of August, 1909;
that in support of that allegation,the protestants,during the rehearing,
presented a w itness called Tomas Puzon. Puzon testified that he w as a
professor and an expert in handw riting,and upon being show n the will
(of August 11, 1909) Exhibit A,testified that the name and surname on
Exhibit A, in his judgment w ere written by tw o different hands, though
the given name is the same as that upon Exhibit 1 (the will of August 6,
1909),because he found in the name "Tomasa" on Exhibit A a similarity
in the tracing to the "Tomasa" in Exhibit 1;that comparing the surname
on Exhibit A w ith the surname on Exhibit 1 he found that the character
of the w riting w as thoroughly distinguishedand different by the tracing
and by the direction of the letters in the said two exhibits;that from his
experience and observation he believed that the name"Tomasa" and
"Yap Caong," appearing in the signature on Exhibit A w ere w ritten by
different person.
Puzon, being cross-examined w ith reference to his capacity as an
expert in handw riting, testified that w hile he w as a student in the
Ateneo de M anila,he had studied penmanship;that he could not tell
exactly w hen that w as, except that he had concluded his course in
the year 1882;that since that time he had been a telegraph operator
for seventeen years and that he had acted as an expert in hand-
w riting in the courts in the provinces.
Gabriel La O w as called as a w itness during the rehearing and testified
that he had draw n the w ill of the 6th of August,1909,at the request of
Tomasa Elizaga Yap Caong; that it w as drawn in accordance w ith her
request and under her directions; that she had signed it; that the same
had been signed by three w itnesses in her presence and in the
presence of each other;that the w ill was written in her house;that she
w as sick and w as lying in her bed, but that she sat up to sign the w ill;
that she signed the w ill w ith great difficulty;that she w as signed in her
right mind.
The said Severo Tabora was also called as a w itness again during the
rehearing. He testified that he knew Tomasa Elizaga Yap Caong
during her lifetime;that she w as dead; that his signature as a w itness
to Exhibit A (the w ill of August 11,1909) w as placed there by him; that
the deceased,Tomasa Elizaga Yap Caong, became familiar w ith the
contents of the w ill because she signed it before he (the w itness) did;
that he did not know w hether anybody there told her to sign the w ill or
not; that he signed tw o bills; that he did not know La O; that he did
not believe that Tomasa had signed the w ill (Exhibit A) before he
arrived at the house; that he w as not sure that he had seen Tomasa
Elizaga Yap Caong sign Exhibit A because there w ere many people
and there w as a screen at the door and he could not see;that he was
called a a w itness tosign the second w ill and w as told by the people
there that it w as the sameas the first;that the w ill (Exhibit A) w as on a
table,far from the patient, in the house but outside the room w here
the patient w as; that the w ill w as signed by Paez and himself; that
Anselmo Zacarias w as there; that he w as not sure w hether Anselmo
Zacarias signed the w ill or not; that he w as not sure w hether Tomasa
Elizaga Yap Caong could see the table on w hich the w ill w as w ritten
at the time it w as signed or not; that there w ere many people in the
house; that he remembered the names of Pedro and Lorenzo;that he
could not remember the names of any others; that the w ill remained
on the table after he signed it;that after he signed the w ill he w ent to
the room w hereTomasa was lying; that the w ill w as left on the table
outside; that Tomasa w as very ill; that he heard the people asking
Tomasa to sign the w ill after he w as (the witness) had signed it;that he
saw Paez sign the w ill,that he could not remember w hether Anselmo
Zacarias had signed the w ill,because immediately after he and Paez
signed it, he left because he w as hungry; that the place w here the
table w as located w as in the same house, on the floor, about tw o
steps dow n from the floor on w hich Tomasa w as.
Rufino R. Papa, w as called as a w itness for the purpose of supporting
the allegation that Tomasa Elizaga Yap Caong w as mentally
incapacitated to make the w ill dated August 11, 1909 (Exhibit A).
Papa declared that he w as a physician;that he knew Tomasa Elizaga
Yap Caong; that he had treated her in the month of August; that he
visited her first on the 8th day of August; that he visited her again on
the 9th and 10th days of August; that on the first visit he found the sick
w oman completely weak — very w eak from her sickness, in the third
stage of tuberculosis;that she w as lying in bed;that on the first visit he
found her w ith but little sense, the second day also, and on the third
day she had lost all her intelligence; that she died on the 11th of
August; tat he w as requested to issue the death certificate;that when
he asked her (Tomasa) whether she w as feeling any pain or anything
of that kind, she did not answ er at all; that she w as in a condition of
stupor,induced, as he believed,by the stage of uraemia from w hich
she w as suffering.
Anselmo Zacarias, w ho had signed the w ill of August 11,1909,w as also
called as a w itnesses during the rehearing. He testified that he had
know n Tomasa Elizaga Yap Caong since he w as a child; that Tomasa
w as dead; that he had w ritten the w ill exhibit A; that it w as all in his
w riting except the last part,w hich w as written by Carlos Sobaco; that
he had w ritten thewill Exhibit A at the request of the uncle of Tomasa;
that Lorenzo, the brother of the deceased, w as the one w ho had
instructed him as to the terms of the w ill ; that the deceased had not
spoken to him concerning the terms of the w ill;that the w ill was written
in the dining room of the residence of the deceased;that Tomasa was
in another room different from that in w hich the w ill w as w ritten; that
the w ill w as not written in the presence of Tomasa; that he signed the
w ill as a w itness in the room w here Tomasa w as lying; that the other
w itnessessigned the will in the same room that when he went into the
room w here the sick w oman w as (Tomasa Elizaga Yap Caong)
Lorenzo had the w ill in his hands; that w hen Lorenzo came to the bed
he show ed the will to his sister (Tomasa) and requested her to sign it;
that she w as lying stretched out on the bed and tw o w omen, w ho
w ere taking care of her,helped her to sit up, supporting her by lacing
their hands at her back; that w hen she started to w rite her name, he
w ithdrew from the bed on account of the best inside the room; w hen
he came back again to the sick bed the w ill w as signed and w as
again in the hands of Lorenzo;that he did not see Tomasa sign the w ill
because he w ithdrew from the room; that he did not know w hether
Tomasa had been informed of the contents of the w ill or not; he
supposed she must have read it because Lorenzo turned the w ill over
to her; that w hen Lorenzo asked her to sign the w ill, he did not know
w hat she said — he could not hear her voice; that he did not know
w hether the sick w oman was him sign the will or not; that he believed
that Tomasa died the next day after the will had been signed;that the
other tw o witnesses,Timoteo Paez and Severo Tabora,had signed the
w ill in the room w ith the sick w oman; that he saw them sign the w ill
and that they saw him sign it; that he w as not sure w hether the
testatrix could have seen them at thetimethey signed the w ill or not;
that there w as a screen before the bed; that he did not think that
Lorenzo had been giving instructions as to the contents of the w ill;that
about ten or fifteen minutes elapsed from the time Lorenzo handed
the w ill to Tomasa before she started tosign it;that the pen w ith which
she signed the w ill as given to her and she held it.
Clotilde M ariano testified that he was a cigarettemaker;that he knew
Tomasa Elizaga Yap Caong and that she w as dead; that she had
made tw o wills;that the first one was written by La O and the second
by Zacarias; that he w as present at the time Zacarias w rote the
second one; that he w as present when the second w ill w as taken to
Tomasa for signature;that Lorenzo had told Tomasa that the second
w ill w as exactly like the first; that Tomasa said she could not sign it.
On cross examination he testifiedthat therewas a lot of visitors there;
that Zacarias w as not there;that Paez and Tabora werethere;that he
had told Tomasa that the second w ill w as exactly like the first.

42. 42
During the rehearing Cornelia Serrano and Pedro Francisco w ere also
examined as w itnesses. There is nothing in their testimony, how ever,
w hich in our opinion is important.
In rebuttal Julia e la Cruz w as called as a w itness. She testified that she
w as 19 years of age;that she knew Tomasa Elizaga Yap Caong during
her lifetime;that she lived in the house of Tomasa during the last w eek
of her illness; that Tomasa had made tw o w ills; that she w as present
w hen the second one w as executed;that a lawyer had draw n thewill
in the dining room and after it had been draw n and everything
finished , it w as taken to w here Doña Tomasa w as, for her signature;
that it w as taken to her by Anselmo Zacarias; that she w as present at
the time Tomasa signedthe w ill that there w ere many other people
present also; that she did not see Timoteo Paez there; that she saw
Severo Tabora; that Anselmo Zacarias w as present; that she did not
hear Clotilde M ariano ask Tomasa to sign the will;that she did not hear
Lorenzo say to Tomasa that the second w ill w as the same sa the first;
that Tomasa asked her to help her to sit up and to put a pillow to her
back w hen Zacarias gave her some paper or document and asked
her to sign it; that she saw Tomasa takehold of the pen and try to sign
it but she did not see the place she signed the document, for the
reason that she left the room;that she saw Tomasa sign the document
but did not see on w hat place on the document she signed; and that
a notary public came the next morning; that Tomasa w as able to
move about in the bed; that she had seen Tomasa in the act of
starting to w riteher signature when she told her to get her somewater.
Yap Cao Quiang w as also called as a w itness in rebuttal. He testified
that he knew Tomasa Elizaga Yap Caong and knew that she had
made a w ill;that he saw the w ill at thetimeit w as written;that he saw
Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa
to sign the w ill; that Lorenzo had handed the w ill to Tomasa to sign;
that he saw the w itnesses sign the w ill on a table near the bed; that
the table w as outsidethe curtain or screen and near the entrance to
the room w here Tomasa w as lying.
Lorenzo Yap Caong testified as a w itness on rebuttal. He said that he
knew Anselmo Zacarias and that Zacarias w rote the w ill of Tomasa
Elizaga Yap Caong; that Tomasa had given him instructions; that
Tomasa had said that she sign the w ill; that the w ill w as on a table
near the bed of Tomasa;that Tomasa,from w here she was lying in the
bed, could seethe table w here the w itnesses had signed the w ill.
During the rehearing certain other w itnesses w ere also examined; in
our opinion, how ever,it is necessary to quotefrom them for the reason
that their testimony in no w ay affects the preponderance of proof
above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in
an extended opinion, reached the conclusion that the last w ill and
testament of TomasaElizaga Yap Caong, w hich w as attached to the
record and marked Exhibit A w as the last w ill and testament of the
said Tomasa Elizaga Yap Caong and admitted it to probate and
ordered that the administrator therefore appointed should continue
as such administrator. From that order theprotestants appealed to this
court, and made the follow ing assignments of error:
I. The court erred in declaring that the w ill, Exhibit A, w as
executed by the deceased Tomasa Yap Caong,w ithout the
intervention of any external influence on the part of other
persons.
II. The court erred in declaring that the testator had clear
know ledge and knew w hat she w as doing at the time of
signing the w ill.
III. The court erred in declaring that the signature of the
deceased Tomasa Yap Caong in the first w ill, Exhibit 1, is
identical w ith that w hich appears in the second w ill, Exhibit
A.
IV. The court erred in declaring that the w ill, Exhibit A, w as
executed in accordance w ith the law .
With reference to the first assignment of error, to w it, that undue
influence w as brought to bear upon Tomasa Elizaga Yap Caong in the
execution of her w ill of August 11th, 1909 (Exhibit A), the low er court
found that no undue influence had been exercised over the mind of
the said Tomasa Elizaga Yap Caong. While it is true that some of the
w itnesses testified that the brother of Tomasa, one Lorenzo, had
attempted to unduly influence her mind in the execution of he w ill,
upon the other hand, there w ereseveral w itnesses w ho testified that
Lorenzo did not attempt, at the time of the execution of the w ill, to
influence her mind in any w ay. The low er court having had an
opportunity to see, to hear, and to note the w itnesses during their
examination reached the conclusion that a preponderance of the
evidence show edthat no undue influence had been used. w e find no
good reason in the record for reversing his conclusions upon that
question.
With reference to the second assignment of error to w it, that Tomasa
Elizaga Yap Caong w as not of sound mind and memory at the timeof
the execution of the will,w e find the same conflict in the declarations
of the w itnesses w hich w e found w ith reference to the undue
influence. While the testimony of Dr. Papa is very strong relating to the
mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
testimony related to a time perhaps tw enty-four hours before the
execution of the w ill in question (Exhibit A). Several w itnesses testified
that at the time the will was presented toher for her signature,she was
of sound mind and memory and asked for a pen and ink and kept the
w ill in her possession for ten or fifteen minutes and finally signed it. The
low er court found that there w as a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga Yap Caong w as of
sound mind and memory and in the possession of her faculties at the
time she signed this w ill. In view of the conflict in the testimony of the
w itnessesand the finding of the low er court,w e do not feel justified in
reversing his conclusions upon that question.
With reference to the third assignment of error, to w it, that the low er
court committed an error in declaring that the signature of Tomasa
Elizaga Yap Caong, on her first w ill (August 6, 1909, Exhibit 1), is
identical w ith that which appears in the second w ill (August 11, 1909,
Exhibit A), it may be said:
First. That w hether or not Tomasa Elizaga Yap Caong executed the will
of August 6, 1909 (Exhibit 1), w as not the question presented to the
court. The question presented w as w hether or not she had duly
executed the w ill of August 11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap
Caong did execute the w ill of August 6, 1909. Several w itnesses
testified to that fact. The mere fact, how ever, that she executed a
former w ill is no proof that she did not execute a later w ill. She had a
perfect right, by w ill, to dispose of her property, in accordance w ith
the provisions of law ,up to the very last of moment her life. She had a
perfect right to change, alter, modify or revoke any and all of her
former w ills and to make a new one.Neither will the fact that the new
w ill fails to expressly revoke all former w ills, in any w ay sustain the
charge that she did not make the new w ill.
Third. In said third assignment of error there is involved in the statement
that "The signature of Tomasa Elizaga Yap Caong, in her first w ill
(Exhibit 1) w as not identical w ith that which appears in her second w ill
(Exhibit A)" the inference that she had not signed the second w ill and
all the argument of the appellants relating to said third assignment of
error is based upon the alleged fact that Tomasa Elizaga Yap Caong
did not sign Exhibit A. Several w itnesses testified that they saw her w rite
the name "Tomasa." One of the witnesses testified that she had written
her full name. We are of the opinion, and w e think the law sustains our
conclusion, that if Tomasa Elizaga Yap Caong signed any portion of
her name tot he w ill,w ith the intention to sign the same, that the w ill
amount to a signature. It has been held time and timeagain that one
w ho makes a w ill may sign the same by using a mark, the name

43. 43
having been w ritten by others. If w riting a mark simply upon a w ill is
sufficient indication of the intention of the person to make and
execute a w ill,then certainly the writing of a portion or all of her name
ought to be accepted as a clear indication of her intention to
execute the w ill. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8
Ves. Jr., 504;Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook,13 Penn.,
400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn.,
196; Re Goods of Emerson, L. R. 9 Ir., 443; M ain vs. Ryder, 84 Penn.,
217.)
We find a very interesting case reported in 131 Pennsylvania State,220
(6 L. R. A., 353), and cited by the appellees, w hich w as know n as
"Knox's Appeal." In this case one Harriett S. Knox died very suddenly on
the 17th of October, 1888, at the residence of her father. After her
death a paper w as found in her room, w holly in her handw riting,
w ritten w ith a lead pencil, upon three sides of an ordinary folded
sheet of note paper and bearing the signature simply of "Harriett." In
this paper the deceased attempted to makecertain disposition of her
property. The w ill w as presented for probate. The probation w as
opposed upon the ground that the same did not contain the
signature of the deceased. That w as the only question presented to
the court, w hether thesignature, in the form above indicated, w as a
sufficient signature to constitute said paper the last will and testament
of Harriett S. Knox. It w as admitted that the entire paper w as in the
handw riting of the deceased. In deciding that question, Justice
M itchell said:
The precise case of a signature by t he first name only, does
not appear to have arisen either in England or the United
States; but the principle on w hich the decisions already
referred to w erebased,especially thosein regard to signing
by initials only, are equally applicable to the present case,
and additional force is given to them by the decisions as to
w hat constitutes a binding signature to a contract. (Palmer
vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474;
Weston vs. M yers, 33 Ill., 424; Salmon Falls, etc. Co. vs.
Goddard, 14 How . (U. S.), 446.)
The man w ho cannot w rite and w ho is obliged to make his mark
simply therefor,upon the w ill,is held to "sign" as effectually as if he had
w ritten his initials or his full name. It w ould seem to be sufficient, under
the law requiring a signature by the person making a w ill, to make his
mark, to place his initials or all or any part of his name thereon. In the
present case w e think the proof show s, by a large preponderance,
that Tomasa Elizaga Yap Caong, if she did not sign her full name, did
at least sign her given name "Tomasa," and that is sufficient to satisfy
the statute.
With reference to the fourth assignment of error, it may be said that
the argument w hich w as preceded is sufficient to answ er it also.
During the trial of the cause the protestants made a strong effort to
show that Tomasa Elizaga Yap Caong did not sign her name in the
presence of the w itnesses and that they did not sign their names in
their presence nor in the presence of each other. Upon that question
there is considerable conflict of proof. An effort w as made to show
that the w ill w as signed by the witnesses in one room and by Tomasa
in another. A plan of the room or rooms in w hich the w ill w as signed
w as presented as proof and it w as show n that there w as but one
room;that one part of the room w as one or twosteps below the floor
of the other;that the table on w hich the w itnesses signed the w ill w as
located upon the low er floor of the room. It was also show n that from
the bed in w hich Tomasa w as lying, it w as possible for her to see the
table on w hich the w itnesses signed thewill. While the rule is absolute
that one w ho makes a will must sign the same in the presence of the
w itnesses and that the w itnesses must sign in the presence of each
other, as w ell as in the presence of the one making the w ill, yet,
nevertheless, the actual seeing of the signatures made is not
necessary. It is sufficient if the signatures are made w here it is possible
for each of the necessary parties, if they desire to see, may see the
signatures placed upon the w ill.
In cases like the present w here thereis so much conflict in the proof, it
is very difficult for the courts to reach conclusions that are absolutely
free from doubt. Great w eight must be given by appellatecourts who
do not see or hear the w itnesses, to the conclusions of the trial courts
w ho had that opportunity.
Upon a full consideration of the record, w e find that a preponderance
of the proof show s that Tomasa Elizaga Yap Caong did execute,freely
and voluntarily,w hile she was in the right use of all her faculties, the w ill
dated August 11,1909 (Exhibit A). Thereforethe judgment of the lower
court admitting said w ill to probate is hereby affirmed w ith costs.
Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.
G.R. No. L-19142 March 5, 1923
In the matter of the estate of Mariano Corrales Tan, deceased.
FLAVIANA SAMSON, petitioner-appellee,
vs.
VICENTE CORRALES TAN QUINTIN, oppositor-appellant.
Marcaida, Capili and Ocampo for appellant .
Epimaco Molina for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of M anila
admitting to probate a document alleged to be the last w ill and
testament of the deceased M ariano Corrales Tan. There is no direct
evidence as to the interest of the oppositor-appellant in the estate in
question,though it may,perhaps,be inferred from the testimony of his
w ife M aximina Ong that he is the son of the deceased.
In his answ er to the petition for probate he alleges, in substance, that
the w ill is incomplete and fraudulent and does not express the true
intent of the testator;that the testator acted under duress and under
undue influence, and that at the time of the execution of the w ill he
w as not of sound and disposing mind.
We do not think the opponent has succeeded in proving any of his
allegations. There is no evidence whatever show ing that the testator
acted under duress or undue influence and the only question of fact
w hich w e need consider is w hether the testator w as of sound and
disposing mind w hen the document in question w as executed.
Upon this point the testimony of Dr. Tee Han Kee, the attending
physician, as a w itness for the opposition, is to the effect that the
deceased w as suffering from diabetes and had been in a comatose
condition for several days prior to his death. He died about eight or
nine o'clock in the evening of December 26, 1921, and the w ill is
alleged to have been executed in the forenoon of the same day.
Counsel for the appellant, in his w ell-prepared brief, argues ably and
vigorously that comaimplies complete unconsciousness, and that the
testator,therefore,could not at that time have been in possession of
his mental faculties and have executed a w ill. There are, how ever,
varying degrees of coma and in its lighter forms the patient may be
aroused and have lucid intervals. Such seems to have been the case
here. Doctor Tee Han Kee, the opponent's principal w itness, w ho
visited the deceased in the evening of December 25th, says he
then seemed to be in a state ofcoma and that in the forenoon of
December 26th, w hen the doctor again visited him, he w as in "the
same state of coma." M aximina Ong, the w ife of the opponent, the
only other w itness for the opposition,states that on December 26th the
deceased could not talk and did not recognize anyone. But all the
w itnessespresented by the petitioner, five in number, testify that the
deceased w as conscious,could hear and understand w hat w as said
to him and w as able to indicate his desires. Four of these w itnesses
state that he could speak distinctly; the fifth, Velhagen, says that the
deceased only moved his head in answ er to questions.

44. 44
That the deceased w as in an exceedingly feeble condition at the
time the w ill was executed is evident,but if the w itnesses presented in
support of the petition told the truth there can be no doubt that he
w as of sound mind and capable of making his w ill. And w e see no
reason to discredit any of these w itnesses; the discrepancies found
betw een their respectiveversions of what took place at the execution
of the document are comparatively unimportant and so far from
w eakening their testimony rather lend strength to it by indicating the
absence of any conspiracy among them.
As against their testimony w e have only the testimony of M aximina
Ong and Dr. Tee Han Kee. The former is not a disinterested w itness. As
to the testimony of the latter it is sufficient to say that mere professional
speculation cannot prevail over the positive statements of five
apparently credible w itnesses whose testimony does not in itself seem
unreasonable.
There is no direct evidence in the record show ing that the publication
of the time and place of the hearing of the petition for probate has
been made as provided for in section 630 of the Code of Civil
Procedure and the appellant argues that the court below erred in
admitting the w ill to probate w ithout proof of such publication. This
question not having been raised in the court below w ill not be
considered here.
Section 630 of the Code of Civil Procedure, speaking of hearings for
the probate of w ills, also provides that "At the hearing all testimony
shall be taken under oath, reduced to w riting and signed by the
w itnesses" and the appellant maintains that the transcript of the
testimony of the witness Dr. N. M . Saleeby,not having been signed by
the w itness, the testimony should have been excluded.
There is no merit in this contention. When,as in this case, the testimony
is taken by the stenographer of the court and certified to by him, the
provision quoted can only be regarded as directory and a failure to
observe the provision will not render the testimony inadmissible.(Reese
vs. Nolan, 99 Ala., 203.)
The order appealed from is affirmed, w ith the costs against the
appellant. So ordered.
Araullo, C. J., St reet , Malcolm, Avanceña, Villamor, Johns, and
Romualdez, JJ., concur.
G.R. No. L-6650 December 5, 1913
SANTIAGO GALVEZ, petitioner-appellant,
vs.
CANUTA GALVEZ, opponent-appellee.
Eugenio Paguia, for appellant .
Ant onio Const ant ino, for appellee.
TORRES, J.:
This appeal w as raised by counsel for Santiago Galvez from the
judgment of October 25, 1910, w hereby the Honorable Simplicio del
Rosario, judge, denied the petition presented by the said Galvez for
the probate of the w ill, Exhibit B, and appointed as administratrix of
the testator's estate, the latter's only legitimate daughter, Canuta
Galvez,under condition that she furnish bond in the sum of P2,000 for
the faithful discharge of the duties of her office.
Counsel for Santiago Galvez petitioned the Court of First Intance of
Bulacan for the probate of the w ill which it w as alleged Victor Galvez
executed in the dialect of the province, on August 12, 1910, in
presence of the w itnesses Juan Dimanlig, J. Leoquinco, and Nazaria
Galvez. This instrument appears also to have been signed by the
w itness LorenzoGalvez,below the nameand surname of the testator.
(p. 3, B. of E., translated into Spanish on p. 5.)lawphil.net
Further on in the same record,pages 6 to 7, there appears another will
w ritten in Tagalogand executed on the same date by Victor Galvez
in presence of the w itnesses Cirilo Paguia, Florentino Sison, and Juan
M enodoza.
In the course of the proceedings various w itnesses were examined by
the petitioner and by the respondent, Canuta Galvez, the only
daughter of the alleged testator, and the attorney Antonio
Constantino stated that he w aived the right to present evidence and
acquiesced in the petition made by SantiagoGalvez for the probate
of the w ill,in view of a transaction enteredinto by the parties; but the
court did not accept the compromise, on the ground that it is
improper to hold that a w ill is the faithful expression of the last wishes of
a decedent, upon the mere fact of the parties' petitioning to that
effect, w hen such w ill, as in the case at bar, w as assailed at the
commencement of the suit.
After due trial the judgment aforementioned w as rendered, from
w hich an appeal w as entered by counsel for the petitioner, Santiago
Galvez.
This case deals w ith the probate of the second will executed by Victor
Galvez on August 12, 1910, and signed in his presence by the w itness
Juan Dimanlig, Nazaria Galvez and J. Leoquinco, and, as the testator
w as no longer able to sign on account of his sickness, Lorenzo Galvez,
at his request,affixed his ow n signature to the instrument, for him and
below his w ritten name. This will,w ritten in Tagalog and translated into
Spanish, is marked as Exhibit B and is found on pages 3 and 5 of the bill
of exceptions.
The other w ill,w ritten in Tagalog and marked Exhibit A,w as presented
during the proceedings;it w as the first one the testator executed on
the same date,and, for the purpose of correcting an error contained
in this first w ill,he executed another w ill, the second, w hich is the one
exhibited for probate.
Notw ithstanding the opposition by Canuta Galvez, the testator's
daughter, w ho alleged that her father, ow ing to his very serious
sickness w ith cholera, lacked the intellectual capacity and clear
judgment requisite for making a w ill, and notw ithstanding her
testimony adduced in corroboration of her brief,the record sufficiently
proved the contrary; the subscribing w itnesses to the w ill affirmed
under oath that they w ere present when Victor Galvez, then sick in his
house, stated to them that the document read before them by
Lorenzo Galvez contained his last w ill and testament, and that, as the
testator was no longer able tosign,he charged his nephew Lorenzo to
do so in his stead,w hich he latter did by affixing his ow n signature to
the document,after having w ritten at the foot of the same the name
and surname of the testator, Victor Galvez, w ho as these w itnesses
observed,w as of sound mind and in the full enjoyment of his mental
faculties; he talked intelligently and w ith perfect know ledge of w hat
w as taking place. They further testified that they all, including the said
Lorenzo Galvez,signed the w ill in the presence of the testator, Victor
Galvez, w ho w as at the time lying on his bed.
In order to hold that Victor Galvez,on account of serious sickness, w as
not then of sound mind and did not have full know ledge of his acts
and, therefore, w as incapable to execute a w ill, it is necessary that
the proceedings disclose conclusive proof of his mental incapacity
and of his evident lack of reason and judgment at the time he
executed his w ill in the presence of the w itnesses w hose signatures
appear at the foot thereof, for these w itnesses capacity positively
affirmed that Victor Galvez,on executing his w ill show ed that he w as
in full possession of his intellectual faculties and w as perfectly
cognizant of his acts.

45. 45
The physician Dr. Vicente de Jesus, in his testimony, referred to the
effects and results of cholera on a patient in ordinary cases and in the
regular course of this disease; but his statements, taken in general,
cannot, in the present suit, served as a ground upon w hich to
predicate incapacity, for the reason that he did not examine Victor
Galvez, nor did he even see him betw een the hours of 12 in the
morning and 3 in the afternoon of the 12th of August, 1910, during
w hich period the testator ordered his w ill draw n up and the attesting
w itnessessigned it,Galvez having died at about 6 o'clock that same
afternoon. It may be true that cholera patients do, in the majority of
cases, become incapacitated in the manner described by the
w itness;but there may be exceptions to the general rule,and to judge
from the testimony of the w itnesses whosaw and communicated with
the patient Victor Galvez at the timehe executed his w ill, his physical
and mental condition must have been an exception, since he
demonstrated that he had sufficient energy and clear intelligence to
execute his last w ill in accordance w ith the requirements of the
law .1awphi1.net
Besides the attestation of the aforesaid subscribing w itnesses, the
contents of the w ill and the testator's positivedetermination to rectify
the error he incurred in the execution of his first w ill, show that Victor
Galvez w as in his sound mind and w as perfectly aw are of his duties in
respect to the legal, inviolable rights of his daughter and sole heir,
Canuta Galvez.
Inasmuch as, in the drafting and execution of the second w ill (Exhibit
B), signed in the name of the testator by Lorenzo Galvez and the
w itnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, the
formalities prescribed by section 618 of the Code of Civil Procedure
w ere observed,for the testator's name appearsw ritten at the foot of
the w ill and under this name Lorenzo Galvez signed by direction of the
testator himself,and the instrument w as also signed by the attesting
w itnesses before mentioned w ho affirmed that they heard and
attested the dispositions made by the testator and w itnessed the
reading of the w ill, that they w ere present w hen the said Lorenzo
Galvez signed the w ill in the name of the testator and that they signed
it in the presence of all the persons assembled in the latter's house,the
conclusion is inevitable that Victor Galvez, in executing his w ill, did so
w ith a sound mind and the full use of his mental faculties; therefore,
the w ill must be admitted to probate.
For the foregoing reasons,w ith a reversal of the judgment appealed
from in so far as it denies the probate of the said w ill, w e hereby hold
that the same w as duly executed by Victor Galvez and expresses his
last w ishes,and w e affirm the rest of the said judgment,with respect to
the appointment, as administratrix, of Canuta Galvez, the testator's
daughter and sole heir.
Arellano, C.J., Johnson, Carson and Moreland, JJ., concur.
Trent , J., dissent s.
G.R. No. L-21015 March 24, 1924
MIGUELA CARRILLO, for herself and as administratrix of the intestate
estate of ADRIANA CARRILLO, deceased,plaintiff-appellant,
vs.
JUSTINIANO JAOJOCO and MARCOS JAOJOCO, defendants-
appellees.
Crispin Oben and Gibbs & McDonough for appellant .
Salinas & Salinas for appellees.
AVANCEÑA, J.:
On the evening of December 9, 1918, Adriana Carrillo executed a
document of sale of eleven parcels of land, w ith one-half of the
improvements thereon, situated in the barrio of Ulong-Tubig,
municipality of Carmona, Province of Cavite, containing an area of
330,409 square meters, in favor of M arcos Jaojoco for the price of
P4,000 w hich the seller admitted having received. Nine days
afterw ards Adriana Carrillo w as declared mentally incapacitated by
the Court of First Instance and later on died; and proceeding having
been instituted for the administrator and settlement of her estate, her
sister M iguela Carrillo w as appointed judicial administratrix of said
estate. In her capacity as such administratrix, M iguela Carrillo now
brings this action for the annulment of said contract of sale executed
by Adriana Carrillo on December 9,1918,against M arcos Jaojoco,the
purchaser, and his father Justiniano Jaojoco. The defendants w ere
absolved from the complaint, and from this judgment the plaintiff
appealed.
The plaintiff has attempted to prove that prior to the year 1918 and
specially in the year 1917, Adriana Carrillo performed acts w hich
indicated that she w as mentally deranged. We have made a
thorough examination of the character of those acts,and believe that
they do not necessarily show that Adriana Carrillo w as mentally
insane. The same thing can be said as to her having entered the
"Hospital de San Lazaro" and the "Hospicio de San Jose," in the
absence of an affirmative show ing to her motive for entering said
institutions,for w hile it is true that insane persons are confined in those
institutions, yet there also enter persons w ho are not insane. Against
the inference that from said acts the plaintiff pretends to draw , in
order to assert the mental incapacity of Adriana Carrillo in that time,
there is in the record evidence of acts w hile more clearly and more
convincingly show that she must not have been mentally
incapacitated before the execution of the document sought to be
annulled in this action. In January, 1917, her husband having died, she
w as appointed judicial administratrix of the latter's estate, and to his
end she took the oath of office, gave the proper bond discharged her
functions in the same manner and w ith the same diligence as any
other person of know ingly sound mind would have done. Documents,
w ere introduced w hich show complex and numerous acts of
administration performed personally by said Adriana Carrillo, such as
the disposition of various and considerable amounts of money in
transactions made w ith different persons, the correctness of said acts
never having been, nor can it be, put in question. We have given
special attention to the fact of Adriana Carrillo having executed
contracts of lease, appeared in court in the testate proceeding in
w hich she w as administratrix, and in fact continued acting as such
administratrix of the estate of her husband until August, 1917,w hen for
the purpose of taking vacation,she requested to be relieved from the
office. On November 13, 1918, Adriana Carrillo entered the "Hospital
de San Juan de Dios" by reason of having had an access of cerebral
hemorrhage w ith hemiplegia,and there she w as attended by Doctor
Ocampo until she left on the 18th of December of the same year very
much better off although not completely cured. Asked about the
mental incapacity of Adriana Carrillo during her treatment, Doctor
Ocampo answ ered that he did not pay attention to it, but that he
could affirm that the answ ers she gave him w ere responsive to the
questions put to her,and that the hemiplegia did not affect her head
but only one-half of the body. After leaving the "Hospital de San Juan
de Dios" on December 8, 1918, Adriana Carrillo called at the office of
the notary public, M r. Ramos Salinas,and there executed the contract
of sale in question on the 9th of that month. The notary, M r. Salinas,
w ho authorized the document,testifiedthat on that day he has been
for some time w ith Adriana Carrillo,w aiting for one of the w itnesses to
the document, and he did not notice anything abnormal in her
countenance, w hich on the contrary, appeared to him dignified,
answ ering correctly all the questions he made to her w ithout
inconsistencies or failure of memory,for w hich reason,says this w itness,
he w as surprised w hen afterw ards he learned that the mental
capacity of Adriana Carrillo w as in question.
It must be noted that the principal w itness for the plaintiff and the most
interested party in the case, being the plaintiff herself, w as the surety
of Adriana Carrillo w hen the latter w as appointed judicial
administratrix of the estate of her husband in 1917. It cannot be
understood, if Adriana Carrillo w as in that time mentally
incapacitated, w hy M iguela Carrillo, the plaintiff, w ho knew it,
consented to be a surety for her. It must likew ise be noted that the
other w itnesses of the plaintiff, w ho testified to the incapacity of
Adriana Carrillo, also made transactions w ith her precisely at the time,
w hen according to them,she w as mentally incapacitated. In view of

46. 46
all of this, w hich is proven by documents and the testimonies of
w itnessescompletely disinterested in the case, it cannot be held that
on December 9, 1918, w hen Adriana Carrillo signed the document,
she w as mentally incapacitated.
The fact that nine days after the execution of the contract, Adriana
Carrillo w as declared mentally incapacitated by the trial court does
not prove that she w as so when she executed the contract. After all,
this can perfectly be explained by saying that her disease became
aggravated subsequently.
Our conclusion is that prior to the execution of the document in
question the usual state of Adriana Carrillo w as that of being mentally
capable, and consequently the burden of proof that she w as
mentally incapacitated at a specified time is upon him w ho affirms
said incapacity. If no sufficient proof to this effect is presented, her
capacity must be presumed.
Attention is also called to the disproportion betw een the price of the
sale and the real value of the land sold. The evidence, how ever,
rather show s that the price of P4,000 paid for the land, w hich
contained an area of 33 hectares,represents it real value,for its is little
more than P100 per hectare, w hich is approximately the value of
other lands of the same nature in the vicinity. But even supposing that
there is such a disproportion, it alone is not sufficient to justify the
conclusion that Adriana Carrillo w as mentally incapacitated for
having made the sale under such conditions. M arcos Jaojoco is a
nephew of Adriana Carrillo,and Justiniano Jaojoco her brother-in-law,
and both defendants,w ho are father and son, had Adriana Carrillo in
charge, took her to the "Hospital de San Juan de Dios," and cared for
her during the time she w as there, and for such acts they may have
w on her gratitude. Under these circumstances there is nothing illegal,
or even reprehensible, and much less strange in Adriana Carrillo's
having taken into account those services rendered her by the
defendants and reciprocated thereof by a favorable transaction.
Having no ascendants and descendents, she could, in consideration
of all the these circumstances,have even given as a donation, or left
by w ill, these lands to the defendants.
The judgment appealed from is affirmed w ith costs against the
appellant. So ordered.
Araullo, C.J., St reet , Malcolm, Ost rand, Johns and Romualdez, JJ.,
concur.
G.R. No. 857 February 10, 1903
EULALIO HERNAEZ, plaintiff-appellant,
vs.
ROSENDO HERNAEZ, defendant-appellee.
Ramon N. Orozco, for appellant .
Ramon Avanceña, for appellee.
ARELLANO, C.J.:
The subject of this action is the w ill executed by Doña Juana Espinosa,
w idow of Don Pedro Hernaez, on December 5, 1894, in Bacolod,
Island of Negros, before a notary public,and three w itnesses,and w ith
the aid of an interpreter,the testatrix not understanding Spanish. In this
w ill the principal dispositions are those relative to the legacy of the
third part of the hereditary estate of free disposal, w hich the testatrix
leaves to her eldest son,Rosendo,to the betterment of the other third
made in favor of this same son, and the distribution of the remaining
third in six equal parts among her five children, Rosendo Domingo,
M agdalena, M ateo, and Eulalio Hernaez y Espinosa, and her tw o
granddaughters, Peregrina and Victorina Parapa y Hernaez, in
representation of their deceased mother, Clara Hernaez y Espinosa.
The plaintiff is one of the sons of the testatrix and the complaint has
not been acquiesced in by M agdalena Hernaez y Espinosa nor
Peregrina and Victorina Parapa y Hernaez, w hose consent plaintiff
sought to obtain.
The action brought is for the annulment of the w ill upon the ground:
(1) of the incapacity of the testatrix; (2) the incapacity of the notary,
attesting w itnesses, and the interpreter; and (3) a substantial formal
defect in the w ill.
The incapacity of the testatrix according to the complaint is alleged
to consist in this: That on the 5th of December, 1894, she w as over 80
years of age and w as so ill that three days before she had received
the sacraments and extreme unction, and that tw o days afterw ards
she died; and that prior thereto she walked in a stooping attitude,and
gave contradictory orders, as a result of her senile debility. The
incapacity of the notary in that he did not understand the Visayan
dialect, the language of the testatrix. The incapacity of the attesting
w itnesses is supposed to consist in their not having a perfect
know ledge of Spanish,and the incapacity of the interpreter in that he
w as an amaneunsis of the notary and w as theperson w ho w rote out
the w ill. The substantial formal defect of the w ill is supposed to consist
in the fact that tw o physicians werenot present to certify to the sanity
of the testatrix at the time of its execution, and the absence of tw o
interpreters to translate the w ill, because executed in a foreign
language.
These are briefly, the grounds upon w hich the action for the
annulment of the w ill rests,and these w ere the issues raisedat the trial.
The evidence introduced bears upon the issues above stated to which
alone the decision of the court must be limited.
For the purpose of proving the mental incapacity of the testatrix the
plaintiff introduced oral testimony and expert evidence; the oral
testimony was for the purpose of proving the follow ing facts: That the
testatrix on the 5th day of December, 1894, w as so ill that she could
not speak;that by reason of her age she w alked in a stooping position
and gave contradictory orders.The priest who was with her during the
last hours of her life w as called to testify that on the 3rd day of the
same month and year he had administered the sacraments to her,
and that the patient w as at that time so seriously ill that he scarcely
understood her w hen she spoke. Theexpert w itnesses w ere called to
testify upon the question propounded: "Could an octogenarian in the
pathological condition peculiar to that age possess sufficient mental
faculties to permit her to dispose of her property causa mort is?" The
result of the oral evidence is that the testimony of the four w itnesses
called has proven one fact, w hich is, that the testatrix toward the end
of her life w alked in a stooping position. The first w itness, Isidora de la
Torre, affirmed that three days before her death she w as very ill but
answ ered questions which w ere addressed her,and only one w itness,
Ambrosia Sotsing, testified that four days before the death of the
testatrix she had been to see the latter and that she could not speak
then because she w as suffering from fainting fits,this w itness being the
only one w ho testified that the testatrix had given contrary order.
These four w itnesses are,respectively,78, 75, 60, and 57 years of age.
The priest, D. Nicolas Alba, stated that he had administered the
sacraments to the testatrix before the execution of the w ill but w as
unable to remember the day;that he understood her then w hen she
spoke and that the testatrix frequently confessed even w hen not
feeling seriously ill,and that w hen sick she w as accustomed to confess
in her house (this point is confirmed by the w itness Sotsing who testified
that she had been to see the testatrix three times and that on all three
of these occasions the communion had been administered to her);
that w hen he confessed her some days before the execution of the
w ill he had also administered the extreme unction on account of her
advanced age; that at that time she w as in the enjoyment of her
mental faculties but the w itness could not statewhether she preserved
them up to the moment of her death,he not being present w hen this
occurred. The expert evidence introduced by the testimony of Dr.
Lope de la Rama gave the follow ing result: That if the organs are
intact the physiological functions are perfectly performed, and that
consequently some men before reaching the age of decrepitudelose
their mental faculties by the w eakening of the brain, either as the

47. 47
result of illness or of abuses, w hile others preserve their understanding
to a very advanced age. It is unnecessary to pass upon the oral
evidence introduced by the defendant; the documentary evidence
(record, p. 38) show s that the testatrix did not die tw o days after the
execution of her w ill. The will was executed on the 5th and her death
occurred on the 12th of December, 1894.
It is sufficient to state that neither from the facts elicited by the
interrogatoriesnor the documents presented w ith the complaint can
the conclusion be reached that the testatrix w as deprived of her
mental faculties. The fact that on old w oman gives contradictory
orders, that she w alks in a stooping position, that she has fainting fits,
that she received the sacraments some days before making her w ill,
are circumstances w hich even if fully demonstrated by proof could no
lead the court to establish a conclusion contrary to the mental
soundness of a person w ho is to be presumed to be in the full
enjoyment of the mental faculties until the contrary is conclusively
proven. The notary in compliance w ith the requirements of article 695
of the Civil Code certifies that in his judgment the testatrix had the
necessary legal capacity and the use of the necessary mental
faculties for the purposes of the execution of the w ill."The Code might
have adopted either one of twosystems [w ith respect to the mental
capacity of the testator] — that of establishing as a general rule the
presumption of soundness of the mental faculties until the contrary be
proven,or that of presuming mental w eakness in the absence of proof
that the act w as performed w hile the mental faculties w ere in their
normal condition. Under the first presumption a w ill made should be
declared valid in all cases, in the absence of evidence to the
contrary. Under the second it w ould have to be considered as void
upon the presumption that it w as executed by a person demented,
unless the contrary is show n. The Code has adoptedthe first system as
being the most rational, by accepting the principle that mental
soundness is alw ays to be presumed with respect to a person who has
not been previously incapacitated until the contrary is demonstrated
and proven by the proper person and the correctness of this choice is
beyond doubt;in the meantime the intervention of the notary and the
w itnessesconstitutes a true guaranty of the capacity of the testator,
by reason of their know ledgeof the matter. (Manresa,Commentaries,
vol. 5, p. 344.)
It has at no time been regarded as a ground for the annulment of a
public instrument executed before a notary public by a native of
these Islands,ignorant of Spanish, that the notary was not acquainted
w ith the dialect of the party executing the same. If this officer, upon
w hom the law imposes the obligation of draw ingthe instrument in the
official language,that is, Castilian, does not know the dialect he can
avail himself of an interpreter in accordance w ith the provisions of the
law itself; hence the fact that the notary w ho legalized the w ill in
question did not know the Visayan dialect spoken by the testatrix is by
no means an argument in favor of the nullity of this public instrument,
nor has it been for the nullity of any one of the long series of
instruments executed before Spanish notaries, and even Filipino
notaries, unacquainted w ith the dialect or dialects of the locality in
w hich they performed their duties or the special dialect of the party.
With respect to the attesting witnesses it has been fully proven by the
manner in w hich they testified at the trial,"w ithout the necessity of an
interpreter," as to those called as w itnesses and by conclusive
evidence as to the deceased attesting w itness w hose signature and
competency have been completely established, that they knew the
dialect of the testatrix in accordance w ith section 5,article 681, of the
Civil Code, and also understood Spanish. As alleged, but not proven,
their know ledgeof the latter language may not have been perfect,
but this does not make them incompetent, nor is it a ground for
annulment. Finally, the prohibition of article 681, section 8, is not
applicable to the interpreter, of w hose services the notary availed
himself for the execution, drafting and legalization of the w ill, for the
simple reason that it does not refer to the interpreter but the witnesses,
and there is nothing to authorize the extensive interpretation
attempted to be made of its precepts.
The presence of tw o physicians, as required in the case covered by
article 665, w as not necessary. "This precept refers clearly and
expressly tothe conditions which must be complied w ith in order that
a demented person may make a w ill by availing himself of a lucid
interval,and is entirely distinct from the cases governed by article 685
w hen the testator has not been declared demented." (Judgment of
June 10, 1897.)
Had anyone observed any incapacity in the testatrix some time
before it w ould have been easy to have taken the proper steps to
obtain a declaration of the status of incapacity in accordance w ith
the provisions of the Civil Code,and then, after a legal declaration of
this condition, she could not have executed a w ill unless tw o
physicians had certified that at the time of her examination she was in
the enjoyment of a lucid interval;but there w as no necessity of w aiting
for a lucid interval w hen the constant condition w as that of lucidity.
Nor w as it necessary that tw o interpreters be present as required by
article 648 of the Civil Code. This is a requisite for the execution of a w ill
in a foreign language, and neither by the letter nor by the purpose of
this article could it be required w ith regard to the w ill in question. Not
by the letter, because neither the testatrix nor the notary expressed
themselves in a foreign language. Neither the Castilian spoken by the
notary nor the Visayan spoken by the testatrix are foreign languages.
Nor is the case w ithin the purpose of the law . "The prior law s had not
provided for the execution of a w ill by a foreigner in his ow n
language. Such a case could not arise under the old law because the
right to make a w ill being one inherent in citizenship they
systematically denied to the foreigner the exercise of that right. The
execution of a w ill being at the present timebased upon natural right,
the foreigner is entitled equally w ith the citizen to make a w ill.
Although it is true that foreigners,under international law, can make a
w ill before the consuls of their nation, it is none the less true that they
do not alw ays make their w illsin a tow n in w hich an accredited consul
resides. For all these reasons it w as necessary to provide by law for a
special form for the w ill of the foreigner who might be ignorant of the
Spanish language and yet have occasion to make a w ill. The form
w hich the law has adopted satisfies the most exigent spirit, for the
presence of tw o interpreters, the fact that the w ill is recorded in a
public instrument in both languages, and that it is signed by all w ho
take part in the act are the most efficacious guarantees against fraud
and bad faith." (Falcon, 3 Civil Code, p. 94.) Text w riters discuss the
application of article 684 to a w ill executed in one of the local idioms
of Spain, considering them to be on the same footing as a foreign
language in a place in w hich Castilian is the tongue spoken or
understood;but w e have no occasion to enter into this discussion, the
legal sense and constant practice observed in these Islands being
sufficient.
Upon these grounds w e hold that judgment must be for the
defendant, declaring the w ill executed by Doña Juana Espinosa on
the 5th of December, 1894, to be valid and efficacious, w ithout
special imposition of costs.
So ordered.
C.A. No. 8075 March 25, 1946
TRINIDAD NEYRA, plaintiff-appellant,
vs.
ENCARNACION NEYRA, defendant-appellee.
Alejandro M. Panis for appellant .
Lucio Javillonar for appellee.
DE JOYA, J.:
On October 25, 1939, Trinidad Neyra filed a complaint against her
sister, Encarnacion Neyra, in the Court of First Instance of the City of
M anila, for the recovery of one-half (½) of the property mentioned
and described therein,w hich had been left by their deceased father,
Severo Neyra, and w hich had been previously divided equally
betw een the tw o extrajudicially, demanding at the same time one-

48. 48
half (½) of the rents collected on the said property by the defendant
Encarnacion Neyra. The defendant filed an answ er admitting that the
property mentioned and described therein was community property,
and at the same time set up counterclaims amounting toover P1,000,
for money spent, during the last illness of their father, and for money
loaned to the plaintiff.
After the trial of the case, the court found that the plaintiff w as really
entitled to one-half (½) of the said property,adjudicating the same to
her, but at the same time ordered said plaintiff to pay to the
defendant the sum of P727.77, plus interests, by virtue of said
counterclaims.
Plaintiff Trinidad Neyra appealed from the said decision, to the Court
of Appeals for M anila,alleging several errors,attacking the execution
and validity of said agreement; and on November 10, 1942, said
appeal w as dismissed, pursuant to the to an agreement or
compromise entered into by the parties, as show n by the
corresponding document,dated November 3,1942,w hich w as filed in
the case the follow ing day, November 4, 1942.
In the meanw hile,Encarnacion Neyra,w ho had been sickly for about
tw o years,unexpectedly died,on November 4,1942 at the age of 48,
allegedly from heart attack, as a consequence of Addison's disease
from w hich, it w as claimed, she had been suffering for sometime.
In view of the decision of the Court of Appeals, dated November 10,
1942, dismissing the appeal, by virtue of said agreement or
compromise,Atty. Lucio Javillonar,claiming to represent Encarnacion
Neyra, w ho had died since November 4, 1942, and other relatives of
hers, filed a petition, dated November 23, 1942, asking for the
reconsideration of said decision of the Court of Appeals, dismissing the
appeal,claiming that the alleged compromise or agreement, dated
November 3,1942,could not have been understood by Encarnacion
Neyra, as she w as already then at the thresholdof death, and that as
a matter of fact she died the follow ing day; and that if it had been
signed at all by said Encarnacion Neyra, her thumbmark appearing
on said document must have been affixed theretoby Trinidad Neyra's
attorney, against Encarnacion's w ill; and that the court had no more
jurisdiction over the case, w hen the alleged agreement w as filed on
November 4, 1942, at the instance of Trinidad Neyra, as Encarnacion
w as already dead at the time.
The principal question to be decided,in connection w ith said petition
for reconsideration,is w hether or not said compromise or agreement
had been legally executed and signed by Encarnacion Neyra, on
November 3, 1942. Trinidad Neyra maintains the affirmative.
The voluminous evidence,testimonial and documentary,adduced by
the parties, in this case, has fully established the follow ing facts:
That Severo Nayra died intestatein the City of M anila,on M ay 6, 1938,
leaving certain properties and tw o children, by his first marriage,
named Encarnacion Neyra and Trinidad Neyra, and other children by
his second marriage; That after the death of Severo Neyra, the tw o
sisters, Encarnacion Neyra and Trinidad Neyra, had serious
misunderstandings, in connection w ith the properties left by their
deceased father, and so serious w ere their dissensions that, after
M arch 31,1939,they had tw o litigations in the Court of First Instance of
M anila,concerning said properties. In the first case, filed in M arch 31,
1939, Trinidad Neyra and others demanded by Encarnacion Neyra
and others the annulment of the sale of the property located at No.
366 Raon Street, M anila w hich w as finally decided in favor of the
defendants,in the court of first instance, and in the Court of Appeals,
on December 21,1943 (G.R. No. 8162);and the second is the instance
case.
That Encarnacion Neyra, w ho had remained single, and w ho had no
longer any ascendants, executed a w ill on September 14, 1939,
marked Exhibit 16, disposing of her properties in favor of the
"Congregacion de Religiosas de la Virgen M aria" and her other
relatives,named Teodora Neyra,Pilar de Guzman and M aria Jacobo
Vda. de Blanco, making no provision w hatsoever in said w ill,in favor of
her only sister of the w hole blood, Trinidad Neyra, w ho had become
her bitter enemy;that when the said will was brought to the attention
of the authorities of said Congregation, after due deliberation and
consideration,said religious organization declined the bounty offered
by Encarnacion Neyra, and said decision of the Congregation w as
duly communicated to her; that in order to overcome the difficulties
encountered by said religious organization in not accepting the
generosity of Encarnacion Neyra, the latter decided to make a new
w ill,and for that purpose,about one w eek before her death, sent for
Atty. Ricardo Sikat,and gave him instructions for the preparation of a
new w ill; that Atty. Sikat, instead of preparing a new w ill, merely
prepared a draft of a codicil, amending said w ill, dated September
14, 1939, again naming said religious organization, among others as
beneficiary, and said draft of a codicil w as also forw arded to the
authorities of religious organization, for their consideration and
acceptance; but it w as also rejected.
In the meanw hile, Encarnacion Neyra had become seriously ill,
suffering from Addison's disease,and on October 31,1942,she sent for
her religious adviser and confessor, M ons. Vicente Fernandez of the
Quiapo Church to make confession, after w hich she requested that
holy mass be celebrated in her house at No. 366 Raon Street, City of
M anila,so that she might take holy communion;that Mons.Fernandez
caused the necessary arrangements tobe made,and,as a matter of
fact, on November 1,1942,holy mass w as solemnized in her house by
Father Teodoro Garcia, also of the Quiapo Church, on w hich
occasion, Encarnacion Neyra, w ho remained in bed, took holy
communion;that after the mass,Father Garcia talked to Encarnacion
Neyra and advised reconciliation betw een the tw o sisters,
Encarnacion and Trinidad Neyra. Encarnacion accepted said advise
and, at about noon of the same day (November 1, 1942), sent
Eustaquio M endoza to fetch her sister Trinidad, w ho came at about
2:30 that same afternoon; that the tw o sisters greeted each other in
most affectionate manner, and became reconciled and tw o had a
long and cordial conversation,in the course of w hich they also talked
about the properties left by their father and their litigations w hich had
reached the Court of Appeals for the City of M anila, the instant case
being the second, and they agreed to have the latter dismissed, on
the condition that the property involved therein should be given
exclusively to Trinidad Neyra,that the latter should w aive her share in
the rents of said property collected by Encarnacion, and the Trinidad
had no more indebtedness toEncarnacion. They also agreed to send
for Atty. Alejandro M . Panis, to prepare the necessary document
embodying the said agreement,but Attorney Panis could come only
in the afternoon of the follow ing day, November 2, 1942, w hen
Encarnacion gave him instructions for the preparation of the
document embodyingtheir agreement,and other instructions for the
preparation of her last w ill and testament; that Attorney Panis
prepared said document of compromise as w ell as the new w ill and
testament, naming Trinidad Neyra and Eustaquio M endoza
beneficiaries therein, pursuant to Encarnacion's express instructions,
and the tw o documents were prepared,in duplicate,and w ere ready
for signature, since the morning of November 3, 1942; that in the
afternoon of that day,of compromise and last w ill and testament to
Encarnacion Neyra, slow ly and in a loud voice, in the presence of
Father Teodoro Garcia, Dr. M oises B. Abad, Dr. Eladio Aldecoa,
Trinidad Neyra,and others,after w hich he asked her if their terms were
in accordance w ith her w ishes,or if she w anted any change made in
said documents;that Encarnacion Neyra did not suggest any change,
and asked for the pad and the tw o documents,and, w ith the help of
a son of Trinidad, placed her thumbmark at the foot of each one of
the tw o documents, in duplicate, on her bed in the sala, in the
presence of attesting w itnesses, Dr. M oises B. Abad, Dr. Eladio R.
Aldecoa and Atty. Alejandro M . Panis, after w hich said w itnesses
signed at the foot of the w ill, in the presence of Encarnacion Neyra,
and of each other. The agreement was also signed by Trinidad Neyra,
as party, and by Dr. M . B. Abad and Eustaquio M endoza, a protege,
as w itnesses.
Father Teodoro Garcia w as also present at the signing of the tw o
documents, at the request of Encarnacion Neyra.

49. 49
The foregoing facts have been establishedby the witnessespresented
by Trinidad Neyra, w ho are all trustw orthy men, and w ho had
absolutely no interest in the final outcome of this case. Tw o of them
are ministers of the Gospel,w hile three of the attesting w itnesses are
professional men of irreproachable character, w ho had know n and
seen and actually talked to the testatrix.
Petitioner Teodora Neyra, half sister of Encarnacion, and
her young daughter Ceferina de la Cruz, and Presentacion Blanco,
daughter of petitioner M aria Jacobo Vda. de Blanco, substantially
corroborated the testimony of the w itnesses presented by Trinidad
Neyra, w ith reference to thesigning of documents,in the bedroom of
Encarnacion Neyra, in the afternoon of November 3, 1942.
Teodora Neyra,Presentacion Blanco and Ceferina de la Cruz testified,
how ever,that when the thumbmark of Encarnacion Neyra w as affixed
to the agreement in question, dated November 3, 1942, she w as
sleeping on her bed in the sala; and that the attesting witnesses w ere
not present, as they w ere in the caida.
But Ceferina de la Cruz also stated that the attesting witnesses signed
the documents thumbmarked by Encarnacion Neyra, in the sala near
her bed, thus contradicting herself and Teodora Neyra and
Presentacion Blanco.
Strange to say,Teodora Neyra,Presentacion Blanco and Ceferina de
la Cruz also testified that Encarnacion Neyra's,thumbmark w as affixed
to the w ill,only in the morning of November 4,1942, by Trinidad Neyra
and one Ildefonso del Barrio, w hen Encarnacion w as already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert,as to the
nature of effects of Addison's disease,is absolutely unreliable. He had
never seen or talked to the testatrix Encarnacion Neyra.
According to medical authorities, persons suffering from Addison's
disease often live as long as ten (10) years,w hile others die after a few
w eeks only, and that as the disease progresses, asthenia sets in, and
from 80 per cent to 90 per cent of the patients develop tuberculosis,
and complications of the heart also appear. (Cecil, Textbook of
M edicine, 3d ed., 1935, pp. 1250-1253; M cCrae, Osler's M odern
M edicine, 3d ed., Vol. V, pp. 272-279.)
And it has been conclusively show n that Encarnacion Neyra died on
November 4, 1942, due to a heart attack, at the age of 48, after an
illness of about tw o (2) years.
In connection w ith mental capacity, in several cases, this court has
considered the testimony of witnesses,who had know n and talked to
the testators, more trustw orthy than the testimony of the alleged
medical experts.
Insomnia,in spite of the testimony of twodoctors,w hotestified for the
opponents to the probate of a w ill, to the effect that it tended to
destroy mental capacity,was held not to effect the full possession of
mental faculties deemed necessary and sufficient for its execution.
(Caguioa vs. Calderon, 20 Phil., 400.) The testatrix w as held to have
been compos ment is, in spite of the physician's testimony to the
contrary,to the effect that she w as very weak,being in the third or last
stage of tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27
Phil., 579.) The testimony of the attending physician that the deceased
w as suffering from diabetes and had been in a comatose condition
for several days,prior to his death, w as held not sufficient to establish
testamentary incapacity,in view of the positive statement of several
credible w itnesses that he w as conscious and able to understand
w hat w as said to him and to communicate his desires.
(Samson vs. Corrales Tan Quintin,44 Phil., 573.) Where the mind of the
testator is in perfectly sound condition, neither old age, nor ill health,
nor the fact that somebody had to guide his hand in order that he
might sign, is sufficient to invalidate his w ill (Amata and
Almojuelavs. Tablizo, 48 Phil., 485.)
Where it appears that a few hours and also a few days after the
execution of the w ill,the testator intelligently and intelligibly conversed
w ith other persons,although lying down and unable to move or stand
up unassisted, but could still effect the sale of property belonging to
him, these circumstances show that the testator w as in a perfectly
sound mental condition at the time of the execution of the w ill.
(Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Presentacion Blanco, in the course of her cross-examination, frankly
admitted that, in the morning and also at about 6 o'clock in he
afternoon of November 3,1942,Encarnacion Neyra talked to her that
they understood each other clearly, thus show ing that the testatrix
w as really of sound mind,at the time of signing and execution of the
agreement and w ill in question.
It may,therefore,be reasonably concluded that the mental faculties
of persons suffering from Addison's disease, like the testatrix in this
case, remain unimpaired, partly due to the fact that, on account of
the sleep they enjoy, they necessarily receive the benefit of physical
and mental rest. And that like patients suffering from tuberculosis,
insomnia or diabetes, they preserve their mental faculties until the
moments of their death.
Judging by the authorities above cited, the logical conclusion is that
Encarnacion Neyra w as of sound mind and possessed the necessary
testamentary and mental capacity, at the time of the execution of
the agreement and w ill, dated November 3, 1942.
The contention that the attesting w itnesses w ere not present, at the
time Encarnacion Neyra thumbmarked the agreement and w ill in
question,on her bed,in the sala of the house, as they w ere allegedly
in the caida, is untenable. It has been fully show n that said w itnesses
w ere present, at the time of the signing and execution of the
agreement and w ill in question, in the sala, w here the testatrix w as
lying on her bed. The true test is not w hether they actually saw each
other at the time of the signing of the documents, but w hether they
might have seen each other sign, had they chosen to do so; and the
attesting witnessesactually saw it all in this case. (Jaboneta vs. Gustilo,
5 Phil., 541.) And the thumbmark placed by the testatrix on the
agreement and w ill in question is equivalent to her signature. (Yap
Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.)
Teodora Neyra and her principal w itnessesare all interested parties,as
they are children of legatees named in the w ill, dated September 14,
1939, but eliminated from the w ill, dated November 3, 1942.
Furthermore,the testimony of Teodora Neyra and her w itnesses,to the
effect that there could have been no reconciliation between the two
sisters,and that the thumbmark of Encarnacion Neyra w as affixed to
the documents embodying the agreement, w hile she w as sleeping,
on November 3,1942,in their presence;and that her thumbmark w as
affixed to the w ill in question, w hen she w as already dead, in the
morning of November 4,1942,w ithin their view,is absolutely devoid of
any semblance of truth. Said testimony is contrary to common sense. It
violates all sense of proportion. Teodora Neyra and her w itnesses
could not have told the truth; they have testified to deliberate
falsefoods;and they are,therefore,absolutely unworthy of belief. And
to the evidence of the petitioners is completely applicable the legal
aphorism — falsus in uno, falsus in omnibus. (Gonzales vs. M auricio, 53
Phil., 728, 735.)
To show the allegedimprobability of reconciliation,and the execution
of the tw o documents, dated November 3, 1942, petitioners have
erroneously placed great emphasis on the fact that, up to October
31, 1942, the tw o sisters Encarnacion and Trinidad Neyra w ere bitter
enemies. They were banking evidently on the common belief that the
hatred of relatives is the most violent. Terrible indeed are the feuds of
relatives and difficult the reconciliation; and yet not impossible. They
had forgotten that Encarnacion Neyra w as a religious w oman
instructed in the ancient virtues of the Christian faith, and hope and
charity, and that to forgive is a divine attribute. They had also

50. 50
forgotten that there could be no more sublime love than that
embalmed in tears, as in the case of a reconciliation.
It w as most natural that there should have been reconciliation
betw een the two sisters,Encarnacion and Trinidad Neyra,as the latter
is the nearest relativeof the former,her only sister of the w hole blood.
The approach of imminent death must have evoked in her the
tenderest recollections of family life. And believing perhaps that her
little triumphs had not alw ays brought her happiness,and that she had
alw ays been just to her sister, w ho had been demanding insistently
w hat w as her due, Encarnacion finally decided upon reconciliation,
as she did not w ant to go to her eternal rest, w ith hatred in her heart
or w rath upon her head. It w as, therefore, most logical that
Encarnacion should make Trinidad the benificiary of her generosity,
under her last w ill and testament,and end all her troubles w ith her, by
executing said agreement,and thus depart in perfect peace from the
scenes of her earthly labors.
It having been show n that the said compromise or agreement had
been legally signed and executed by Encarnacion Neyra on
November 3, 1942, in the presence of credible and trustw orthy
w itnesses, and that she w as compos ment is and possessed the
necessary testamentary and mental capacity of the time;the petition
for the reconsideration filed by Atty. Lucio Javillonar,on November 23,
1942, on behalf of a client, Encarnacion Neyra, w ho had been dead
since November 4, 1942, and some of her relatives, w ho have
appeared,in accordance w ith the provisions of section 17 of Rule 3 of
the Rules of Court, is hereby denied; and the decision of the Court of
Appeals for M anila,dated November 10,1942, dismissing the appeal,
is hereby re-affirmed, w ithout costs. So ordered.
Ozaet a, Perfect o, Hilado, and Bengzon, JJ., concur.
G.R. No. L-47428 April 8, 1941
Testamentaria de la finada Perpetua Albornoz Viuda de Soriano.
ALFONSO ALBORNOZ, solicitante-apelada,
vs.
DOLORES ALBORNOZ y JOSE ALBORNOZ, opositores-apelantes.
Sres. Santos y Solidum y D. Emilio L. Medina en represent acion de los
apelant es.
Sres. Diaz y Lazaro en represent acion de los apelados.
DIAZ, J.:
Estos dos expedientes nos fueron elevados en virtud de la apelacion
de algunas de las partes interesadas contra la sentencia del Juzgado
de Primera Instancia de Ilocos Norte, por tratarse en ambos de una
legalizacion de dos alegados testamentos y codicilo en los que las
propiedades de que la autora de los mismos trata de disponer, valen
mucho mas de P50,000.
En el expediente C.S-R.G. No. 47428 fue promovente en primera
instancia Alfonso Albornoz (Expediente No. 4054 del Juzgado de
Primera Instancia de Ilocos Norte), y en el expediente C.S-R. G. No.
47429 (ExpedienteNo. 4017 del mismo Juzgado), la promovente fue
Dolores Albornoz. Los dos osn hermanos de la hoy finada Perpetua
albornoz Vda. de Soriano que dijeron en sus respectivos casos, ser la
otorgante de los testamentos y codicilo cuya legalizacion solicitaron.
El Juzgado de Ilocos Norte que conocio de los dos expedientes,
ordeno depues de los tramites de rigor, la leglizacion de los
documentos que Dolores Albornoz habia presentado como
testamento y codicilo de la mencionada finada, y son los que obran
hoy en autos como Exhibits A y B (Expediente No. 4017 del Juzgado
de Primera Instancia de Ilocos Norte y C.S.-R.G. No. 47429); y rechazo
el que presentara para el mismo fin el promovente del expediente
No. 4054 que corresponde al de este Tribunal C.S.-R.G. No. 47428,
Alfonso Albornoz. Esto hizo el Juzgado en una sola decision, a
instancia de las partes interesadas.
En el primer expediente (Expdiente No. 4017;C.S.-R.G. No. 47429), fue
opositor Alfonso Albornoz y con el hicieron causa comun Amador,
Alicia, Clara y los hermanos de estos exceptoJose,apellidados todos
Albornoz; y en el otro expediente, o sea, No. 4054 (C. S.-R. G. No.
47428) fueron opositores Dolores Albornoz y Jose Albornoz.
Alfonso Albornoz y los que hicieron causa comun con el apelaron de
la decision dictada por el Juzgado en ambos expedientes; y en esta
instancia arguyen ahora que aquel incurrio en los errores que
apuntan en sus alegatos, sustancialmente en estos terminos:
El error de haber declrado que Perpetua Albornoz viuda de Soriano
no tenia capacidad mental el 24 de Junio de 1936, para otorgar el
testamento de dicha fecha, Exhibit A, que presentaron para su
legalizacion en el expediente No. 40504 (C.S.-R.G. No. 47428).
El de haber dejado de dar credito al testimonio de los testigos
instrumentales del referido testamento de 24 de Junio de 1936.
El de haber dejado de declarar, sin tener en cuenta la clausula de
atestiguamiento del testamento que alegaron ser de la finada
Perpetua Albornoz viuda de Soriano, que el mismo fue otorgado
debidamente;y el de haber dejado de declarar al mismo tiempo que
Dolores Albornoz y Jose Albornoz que lo impugnaron, no presentaron
pruebas concluyentes para sostener su contencion de que no era de
dicha finada el indicado testamento.
El de haber permitido la legalizacion como testamento de la finada,y
como codicilo del mismo, los documentos que como tales fueron
presentados por Dolores Albornoz en el expedienteNo. 4017,C.S.-R.G.
No. 47429; y finalmente,
El de haber denegado la mocion que presentaron para pedir la
celebracion de una nueva vista.
Los apelantes no impugnaron ni siquiera hicieron reparo a;gimp em
cuanto a la autenticidad y debido otorgamiento como testamento y
codicilo, de los Exhibits A y B en el expediente No. 4017, C.S.-R.G. No.
47429;y Dolores Albornoz probo cumplidamente por otra parte, que
la finada Perpetua A. Vda. de Soriano otorgo los mismos el 25 de abril
de 1934 y 19 de junio de 1936, respectivamente, con entra libertad,
estando ella en el leno goce de sus facultads mentales y en
presencia de los testigos cuyos nombres y firmas se mencionan y
aparecen en las clausulas de atestiguamiento de los aludidos
documentos.
La finada fallecio el 25 de junio de 1936, al rededor de las 8 de la
mañana, en el municipio de Laoag de la Provincia de Ilocos Norte,
teniendo ella entonces 68 años de edad. Pedecio de diarrea y
enteritis complicaciones de miocarditis, desde el 3 de junio de 1936
hasta el momento de su fallecimiento el cual no debio mas que a
dichas causas. Su debilidad fue acentuandose de dia en dia desde
poco despues de haber caido enferma,habiendo contribuido a esto
la absoluta dieta liquida a que habia sido sometida, mas su ya
bastante avanzada edad. La postracion que le sobrevino mas tarde
fue dal que el 22 de los expresados mes y año ya deliraba y apenas
podia moverse y hablar; y si hablaba, sus palabras eran entonces
incoherentes. El 23 perdio completamente el habla, y aunque tenia
abiertos los ajos,ya no se movian, notandose que tampoco veian; y
nada de lo que le redeaba le causaba ya impresion o reaccion.
Continuo asi hasta sobrevenrle la muerte. En estas circunstancias,
clore esta que era fisicamente imposible que otorgasecomo trataron
de probar los apelantes, su alegado testamento Exhibit A en el
expediente No. 4054, (C.S.-R.G. No. 47428). Hay que tener presente
que dicho documento muestra en su faz, y asi la declararon ademas
los testigos de los apelantes, que fue preparado y firmado por la
finada y por los testigos que presentaron, llamados Antonio

51. 51
Quirolgico, Adriano Ruiz e Isaac S. Pedro a las 6 a.m. del dia 24 de
junio de 1936.
La finada no era pobre y no carecia de medios para procurarse los
servicios de domesticos y el cuidado de parients y amigos mas o
menos interesados en su salud; no vivia sola ni se hallaba sola en su
casa desde que se enfermo, y menos en el dia mencionado, siendo
esto tanto mas cierto cuanto que el mismo Alfonso Albornoz,
diclarando en la vista de los dos expedientes, manifesto que su
hermana Dolores Albornoz y la amiga de esta llamada Cunegunda
pe Benito tuvieron especial ciudado de que no la viese; y de hecho,
la finada tenia a su servicio nueve criados y nueve criadas. Si esto es
cierto, es indudablemente cierto tambien, como lo probo Dolores
Albornos, que la finada nunca estuvo sin compañia en su habitacion
durante su enfermedad, especialement, durante sus ultimos dias,
porque aquella requeria ciudado continuo. Por consiguiente, es
increible queu Adriano Ruiz y los otros testigos instrumentales del
alegado testamento de 24 de junio,pudiesen entrar,no ya dentro de
la habitacion de la finada pero siquiera dentro de su casa, sin ser
vistos ni notados por nadie. El otorgamiento del testamento de que se
trata no pudo hacerse en un corto instante; debio requerir algun
teimpo, teimpo bastante para que los de la casa pudiesen darse
cuenta de que habia extraños en la misma,en una hora en que no es
costumbre visitar. Añadase a todo esto que el experto caligrafo
Arcadio Laperal que hizo un estudio detenido de las firmas "PERPETUA
A. VDA. DE SORIANO" que aparecen en el Exhibit A obrante en el
expediente No. 4054, que es el mismo Exhibit 1 que obra en el
expediente No. 4017,comparando las mismas conlas autenticas de la
finada y las que aparecen en el testamento y en el codicilo
legalizados por el Juzgado a quo, que no fueron discutidas, expreso
la opinion de que unas y otras no pudieron haberse exrito por una
misma persona,ayudada o no poor otra,porque difieren en todos los
respectos. Creemos que la opinion del mencionado experto esta
fundada en los hechos, sobre todo teniendo en cuenta que la finada
ya no podia ver bien, como asi lo dijo uno de los testigos del
testamento que se discute, y sin embargo, las firmas que se le
atribuyen estan escritas con mucha simetria, rectamente, y
guardando las letras entre si, casi la misma distancia. Aunque la
finada hubiese sido ayudada por otro para estampar dichas firmas,
no hubieran salido tan bien como aparecen en el expresado
documento.
La mocion para una nueva vista que los apelantes presentaron y fue
denegada por el Juzgado a quo, no alega ningun nuevo hecho. La
presentaron simplemente pro forma, para que pueden revisarse los
hechos.
Por todo lo expuesto,y siendo manifiestamente infundados los errores
atribuidos por los apelantes al Juzgado a quo, por la presente,
confirmamos en todas sus partes la decision apelada, con las costas
a dichos apelantes, en ambas instancias. Asi se ordena.
Avanceña, Pres. Imperial, Laurel, y Horrilleno, MM., estan conformes.
Moran, M., no tomo parte.
ARTICLE 800
TORRES VS. LOPEZ (SEE ART 799)
RAM IREZ VS RAM IREZ
G.R. No. L-18498 March 30, 1967
TESTATE ESTATE OF VITO BORROMEO. JOSE H. JUNQUERA, petitioner-
appellee,
vs.
CRISPIN BORROMEO, ET AL., oppositors-appellants.
REPUBLIC OF THE PHILIPPINES, intervenor-appellant.
Benjamin A. Rallon for opposit or-appellant Fort unat o Borromeo.
Crispen Baizas and Associat es for heirs opposit ors-appellant s Tomas
Borromeo and Amelia Borromeo.
Office of t he Solicit or General for int ervenor opposit or -appellant
Republic.
Miguel Cuenco and Fernando S. Ruiz for heirs opposit ors-appellant s
Crispin Borromeo, Teofilo Borromeo, et al.
Filibert o Leonardo for pet it ioner-appellee.
DIZON, J.:
Vito Borromeo, a w idow er and permanent resident of the City of
Cebu, died on M arch 13, 1952, in Parañaque, Rizal, at the age of 88
years, w ithout forced heirs but leaving extensive properties in the
province of Cebu.
On April 19 of the same year,Jose H. Junquera,filed w ith the Court of
First Instance of said province a petition for the probate of a one page
document as the last w ill left by said deceased, devising all his
properties to Tomas,Fortunatoand Amelia,all surnamed Borromeo, in
equal and undivided shares, and designating Junquera as executor
thereof (Special Proceedings No. 916-R). The document — now in the
record as Exhibit "A" — w as dated M ay 17, 1946, drafted in Spanish,
and allegedly signed, and thumbmarked by said deceased, in the
presence of Dr. Cornelio G. Gandionco, Eusebio Cabiluna and
Filiberto Leonardo as attesting w itnesses. On June 14, 1952, the
probate court appointed Junquera as special administrator of the
estate.
On November 14 of the same year, Teofilo Borromeo filed an
opposition to the probate of the will based on the follow ing grounds:
(1) that the formalities required by law had not been complied w ith;
(2) that the testator w as mentally incapable of making a w ill at the
time of its execution; (3) that the w ill w as procured by undue and
improper influence,on the part of the beneficiaries and/or some other
person; (4) that the signature of the testator w as procured by fraud;
and (5) that the testator acted by mistake or did not intend the
instrument he signed to be his w ill at the time he affixed his signature
thereto.
Upon motion of the abovenamed oppositor, on June 9, 1953, the
Court removed Junquera as special administrator and appointed Dr.
Patricio Beltran in his place.
On November 27,1953,Vitaliana Borromeo,a niece of the deceased,
filed her ow n opposition to the probateof the w ill,on the ground that
the signature "Vito Borromeo" appearing thereon wasa forgery. Other
oppositions w ere subsequently filed by Patrocinio Borromeo de
Tabotabo (her opposition w as later w ithdraw n), Lilia M orre de
Tabotabo,Lamberto Morre, Patricia M orre de Ranario, Aurora M orre
de Borromeo, Ramon Ocampo, Isagani M orre and Rosario M orre,
invoking substantially the same grounds mentioned heretofore.
M eanw hile, Tomas, Amelia and Fortunato Borromeo, manifestly on
behalf of the "Cebu Arcade Company, T. L. Borromeo y Cia.", a duly
organized partnership controlled by them, filed a motion to exclude
from the inventory of the Estate previously filed by the new special
administrator,thirteen parcels of land situated in the City of Cebu w ith
a total area of 2,148 square meters,alleging that during his lifetime the
deceased testator had sold said lots to them, as evidenced by the
document now in the record as Exhibit F-1 executed on May 17, 1945,
confirming the alleged previous sale. After due hearing, the court, in
its order of July 16, 1954, denied the motion for exclusion, ruling that
movants' remedy was to file a separateaccion reivindicatoria against
the administrator.
On October 28,1955,the Republic of the Philippines filed a motion for
leave to intervene and join the oppositors in contesting the probate of
the w ill, on the ground that, should the estate be adjudicated the
latter by intestacy,it stood tocollect a considerable amount by w ay

52. 52
of estate and inheritance taxes. In its order of December 10 of the
same year, the Court allow ed the intervention.
After a prolonged trial, on M ay 28, 1960, the Court rendered a
decision denying the probate of the w ill and declaring itself w ithout
jurisdiction to pass upon the question of ow nership over the thirteen
lots w hich the Cebu Arcade etc. claimed as its ow n. All the parties
appealed — the proponents of the w ill from the portion of the
decision denying probate,and the oppositors and the Republic of the
Philippines, from that portion thereof w here the court refused to
decide the question of ow nership of the thirteen lots already
mentioned.
The proponents of the disputed w ill, mainly w ith the testimony of the
three attesting witnesses,Cornelio Gandionco,Filiberto Leonardo and
Eusebio Cabiluna, sought to prove the follow ing facts:
In the morning of M ay 17,1945,TomasBorromeo, complying w ith the
request of Vito Borromeo,w ent to the house of Atty. FilibertoLeonardo
to request him to be a w itnessat the execution of the latter's last w ill.
Dr. Cornelio Gandionco, w ho at the time happened to be in the
house of Leonardo,w as likew ise requested to act as such. Together,
the three w ent to the residence of Vito Borromeo at Ramos Street,
Cebu City. Upon their arrival the third w itness, Eusebio Cabiluna, w ho
w as living on the ground floor of the house, w as asked to come
upstairs. Thereafter,in their presence,Vito Borromeoexecuted first,the
document Exhibit "F" (deed of confirmation of an alleged previous sale
to Cebu Arcade Company, T. L. Borromeo y Cia.) w itnessed by
Gandionco and Cabiluna. Later, Vito Borromeo, being of sound and
disposing mind, and w ithout pressure or influence exerted on him,
dictated the substance of his w ill to Tomas Borromeo, w ho in turn
typewrote it in proper legal language. The document w as then read
by Vito Borromeo,w ho later signed and thumbmarked it (Exhibit "A")
and carbon copies thereof (Exhibits "E" and "K") in the presence of the
attesting w itnesses, w ho, in turn, signed the w ill and its copies in the
presence of Vito Borromeo and of each other.
Proponents also placed the Rev. Fr. Julio Corres, a Spanish Catholic
priest w ho was the confessor of Vito Borromeo from 1942 to 1946, the
Rev. Fr. Sergio Alfafara, w ho w as his confessor from 1946 to 1947, and
Vicenta M añacap, a mid-w ife w ho lived in the testator's house and
had served him from M ay 1945up to his death on M arch 30, 1952 on
the w itness stand.The gist of their testimony is to the effect that at the
time of the execution of the w ill, Vito Borromeo w as still strong and
could move around freely w ith the aid of a cane; that he w as still
mentally alert and w as a man of strong w ill; that his right hand w as
unimpaired and he could w rite w ith it unaided; that as a matter of
fact — according to Vicenta M añacap — he still w rote personal
letters to Tomas Borromeo,could eat by himself and even played the
piano.
On the other hand, the oppositors presented several w itnesses w ho
testified that the signatures purportingto be thoseof Vito Borromeo on
the document Exhibit "A" and its copies w ere forgeries;that they w ere
too good and too perfect signatures and, therefore, quite impossible
for the deceased — an ailing man already 82 years old on M ay 17,
1945 — to w rite;that he was found "positive for bacillus leprosy" by Dr.
Antonio Garcia as early as 1926 or 1927, having been treated for it
consistently by injections of chaulmoogra oil administered by Dr. M ax
Borromeo and Dr. Cornelio Gandionco; that Vito Borromeo's usual
signatures during his better days had alw ays been characterized by
certain flourishes, technically called "rubric"; that Vito Borromeo had
also reared and educated tw o of the oppositors, Crispin Borromeo
and the late Teofilo Borromeo and there w as no conceivable reason
w hy they were left out in the will,if any such w ill had really been made
by him know ingly;that the testamentary witness Cornelio Gandionco,
is a nephew of the other w itness, Filiberto Leonardo, and w as the
fiance of Angeles Borromeo, a sister of Tomas Borromeo, one of the
instituted heirs;that the third testamentary witness,Eusebio Cabiluna is
the real father of Fortunato Borromeo, another instituted heir, w ho
admittedly grew up and w as reared by Vito Borromeo and his w ife
Juliana Evangelista since he w as barely three months; that Amelia
Borromeo, the third instituted heir, is a younger sister of Tomas
Borromeo and dependent upon him; that on M ay 17, 1945, the
deceased's leprosy w as so far advanced that the fingers of his right
hand w ere already hardened and atrophied, this making it difficult, if
not impossible,for him to w rite; and that on the same date, his sense
of hearing and his eyesight had been considerably impaired, his eyes
being alw ays w atery due to the progress of his leprosy.
The oppositors also presentedFelipe Logan of the National Bureau of
Investigation and Jose G. Villanueva, as handw riting experts, w ho
testified,after examining the supposed signatures of the deceased in
Exhibit "A" and comparing them w ith his accepted standard
signatures, that the questioned signatures w ere forgeries. The
proponents,how ever,presented their own handwriting expert, M artin
Ramos, w ho testified to the contrary.
The trial court refused to believe the testimony of the attesting
w itnessesand,as a result,denied the petition for probate, because, in
its opinion, they appeared not to be "wholly disinterested persons" and
because of the serious discrepancies in their testimonies w ith respect
to the number of copies made of the disputed document. The court
also found that the physical condition of the deceased at the time of
the execution of the questioned document was such that it w as highly
improbable,if not impossible,for him to have affixed his signatures on
the documents Exhibits A, E and K in the spontaneous and excellent
manner they appear to have been w ritten. Thus, the court w as also
led to believe the testimony of the handwriting experts for oppositors,
— adverse to the genuineness of the signatures of Vito Borromeo on
the questioned document — more than that of the handwriting expert
presented by the proponents of the w ill.
It seems clear, therefore, that the main issue to be decided in the
present appeal is w hether or not the evidence of record is sufficient to
prove the due execution of the w ill in question.1äwphï1.ñët
It must be conceded that in this jurisdiction, the subscribing w itnesses
to a contested w ill are regarded as the best w itnesses in connection
w ith its due execution. It is similarly true, how ever, that to deserve full
credit, their test, testimony must be reasonable and unbiased, and
that, as in the case of any other w itness, their testimony may be
overcome by any competent evidence — direct or circumstantial
(Board, etc. vs. Shasser, 10 Kan. 585, 168 Pac. 836 [1917]).
It is also an appellate practice of long standing in this jurisdiction to
accord great w eight to the findings of fact made by the trial court
and not to disturb them unless said court had failed to consider
material facts and circumstances or had given undue w eight to, or
misconstrued the testimony of particular w itnesses, the reason for this
being that the trial judge had full opportunity to hear and observe the
conduct and demeanor of the w itnesses w hile testifying and w as
consequently in a better position than the review ing court to
determine the question of their credibility. While this is not applicable
to the present case because His Honor, the judge w ho penned the
appealed decision w as not the same judge before w hom the
evidence of the parties w as presented,it must be stated that, judging
from the carefully w ritten decision under review , it w as only after a
thorough study of the record that His Honor arrived at the conclusion
that the subscribing w itnesses do not appear to be w holly
disinterested persons.
On the matter of the number of copies made of the questioned w ill
allegedly signed by the testator and the three subscribing w itnesses,
His Honor found that Cabiluna w as very uncertain and confused; that
a certain stage of his examination,he said that only t wo copies of the
w ill w ere prepared — the original and one carbon copy — w hile at
another stage he affirmed that he did not know whether or not there
w as a duplicate and that all he could say w as that he had affixed his
signature t hree times (Transcript, M arquiala, August 22, 1958, pp. 49-
50). In truth, how ever, he really signed six (6) times — tw ice on the
original and tw ice on each of the tw o copies.Adding confusion to the
situation is the answ er he gave w hen he w as asked if Vito Borromeo

53. 53
also signed the carbon copy, to w hich his answ er w as "I did not see"
(Idem., p. 50).
On the other hand, the other subscribing w itness, Atty. Filiberto
Leonardo,testified categorically that there wereonly the original and
one carbon copy of the w ill and that the testator and all the
subscribing w itnesses signed both (Transcript, M arquiala, December
23, 1953, pp. 167, 210, and 218). How ever, the naked and highly
disturbing fact is that,contrary to w hat is inferable from the vacillating
testimony of Cabiluna and the categorical assertion of Atty.
Leonardo, the proponents of the questioned w ill themselves
presented t hree copies of said w ill; the original, a carbon duplicate
copy and a carbon triplicate copy, now in the record as Exhibits A, E
and K, respectively.
While it is true that the testimony of these subscribing w itnesses w as
given around eight years after the alleged execution of the
questioned w ill,still w ebelieve that the transaction in w hich they claim
to have taken an important part is of such character and importance
that it can not be a very easy matter for anyone of them to have a
hazy recollection of the number of copies signed by the testator and
by them. Stranger still w ould it be for them to say something in open
contradiction w ith the reality on the matter. If, as may be clearly
deduced from their testimony — Cabiluna and Leonardo's — there
w as only the original and one copy signed by the testator and the
subscribing w itnesses,w hy is it that t hree — original and tw o copies —
w ere really in existence and w ere produced in court during the trial?
In the case of the third subscribing w itness, Dr. Cornelio Gandionco,
the imputation was madeby twow itnesses, Dr. Teofilo Borromeo and
Judge Crispin Borromeo,that he w as the fiance of Angeles Borromeo,
sister of Tomas Borromeo,w hois one of the three heirs instituted in the
questioned w ill, evidently to show that he is not a completely
disinterested w itness. The evidence to this effect appears to have
remained unimpeached, although the proponents of the w ill could
have done it by calling on Dr. Gandionco himself or on Angeles
Borromeo to deny the imputation.
M oreover, the evidence also disclose that Dr. Gandionco w as the
uncle of the other subscribing w itness, Atty. Leonardo, and that, in
fact, they w ere living together at the time of the alleged execution of
the w ill. This circumstance — apparently trivial — can not be taken
lightly because in view of appellee's claim that AngelesBorromeowas
the fiance of Dr. Gandionco, it w ould not be unreasonable to
entertain the suspicion that both subscribing w itnesses werenot wholly
disinterested. M aterial to this point is the fact established by the
evidence that Atty. Leonardo was thenotary public before w hom the
document Exhibit 4-A — w hich purports to convey to a partnership
controlled by the heirs instituted in the questioned will thirteen parcels
of land situated in the commercial center of Cebu City — w as
supposedly acknow ledged by the testator on the samedate M ay 17,
1945.
In the light of the foregoing,We can not see our w ay clear to holding
that the trial court erred in refusing to give full credit to the testimony
of the three subscribing w itnesses.
It has also been held that the condition and physical appearance of
a questioned document constitute a valuable factor w hich, if
correctly evaluated in the light of surrounding circumstances, may
help in determining w hether it is genuine or forged. Subscribing
w itnessesmay forget or exaggerate what they really know,saw,heard
or did; they may be biased and, therefore, tell only half truths to
mislead the court or favor one party to the prejudice of the other. This
can not be said of the condition and physical appearance of the
questioned document itself. Both,albeit silently, w ill reveal the naked
truth, hiding nothing, forgetting nothing, and exaggerating nothing.
For this reason, independently of the conflicting opinions expressed by
the handw riting experts called to the witness standby the parties, w e
have carefully examined and considered the physical appearance
and condition of the original and tw o copies of the questioned w ill
found in the record — particularly the signatures attributed to the
testator — and We have come to the conclusion that the latter could
not have been w ritten by him.
Upon the face of the original and tw o copies of the contested w ill
(Exhibits A, E and K) appear a total of six alleged signatures of the
testator. They are all w ell w ritten along a practically straight line,
w ithout any visible sign of tremor or lack of firmness in the hand that
w rote them. In fact, in the respects just adverted to, they appear
better w ritten than the unquestioned signatures,of attesting witnesses
Gandionco and Cabiluna, inspite of the fact that on the date of the
alleged execution of the w ill (M ay 17, 1945) the testator w as
considerably older and in a much poorer physical condition than
they. According to the evidence, the testator w as then a sick man,
eighty-tw o years old, w ith the entire left half of his body paralyzed
since six years before,w hile theoldest attesting witness (Cabiluna) was
around sixty-five years of age and Leonardo and Gandionco w ere
only forty-four and forty-five years old respectively, and w ere all in
good health. Despite the obviously very poor physical condition of the
testator, Leonardo claims that he signed the alleged w ill unaided,
w riting his name thereon slow ly but continuously or w ithout
interruption, and that, on the same occasion, he signed his name
several times not only on the original of the will and its copies but also
on the original and several copies of the alleged confirmatory sale
Exhibit F-1 and on his residence certificate. Considering all the
attendant circumstances, w e agree w ith the low er court that Vito
Borromeo could not have w ritten the questioned signatures.
In view of w hat has been said heretofore, We find it unnecessary to
examine and consider in detail the conflicting testimony of the
handw riting experts presented by the parties: M artin Ramos by the
proponents of the w ill, to sustain the genuineness of the questioned
signatures, and Felipe Logan and Jose G. Villanueva, by the
oppositors, to prove that said signatures are forgeries. We shall limit
ourselves in this connection to quoting w ith approval the follow ing
portion of the appealed decision:
What the Court finds to be a w eakness in the conclusions of
M artin Ramos,based on his comparative examination of the
questioned and standard signatures of Vito Borromeo, is his
apparent assumption that all the signatures w ere made by
Vito Borromeo under equality or similarity of circumstances,
that is, that in all instances Vito Borromeo had normal use of
both of his hands, — the right and the left. He failed to take
into account that w hen Vito Borromeo allegedly affixed
those signatures on M ay 17, 1945 on Exhibits 'A', 'E', and 'K'
the left portion of his body, including the left hand, w as
already paralyzed,and Vito Borromeo w as represented to
have w ritten his name alone by himself and unaided.
M aybe, if he w as previously apprised of those
circumstances, he w ould hesitate to make the conclusion
that those flaw less signaturesreading Vito Borromeo,w ritten
straight and in a form as good as, if not better than, the
signatures of three much younger attesting w itnesses, w ere
positively in the handw riting of the 82-year old, ailing, and
paralytic Vito Borromeo.The Court consequently, finds itself
not disposed to adopt his conclusions,but on the contrary is
inclined tow ard the views of the other two experts witnesses,
Felipe Logan and Jose G. Villanueva.
As stated at the outset, the contested w ill is claimed to have been
signed and t humbmarked by the testator. An examination of the
thumbmarks, how ever, readily show s that, as the low er court found,
the same are "glaringly far from being distinct and clear"; that "they
are not a possible means of identification" nor can "they possibly be
identified to be those of Vito Borromeo,or for that matter,of any other
person w hatsoever". It is,therefore,obvious,that they are of littleuse in
the resolution of the issue before Us.
We shall now consider the appeal, taken by the oppositors and the
Republic of the Philippines from that portion of the decision w here the
low er court declined to decide with finality thequestion of w ho ow ns
the thirteen parcels of land subject-matter of the confirmatory sale

54. 54
Exhibit F-1 and w hether or not they should be included in or excluded
from the inventory of properties of the Estate of the deceased Vito
Borromeo.
It appears that on February 11, 1954 Tomas, Amelia, and Fortunato
Borromeo, through counsel, filed a motion for the exclusion from the
inventory of the Estate of the thirteen lots therein mentioned, w ith a
total area of 2,348 square meters, claiming that the same had been
sold by the deceased Vito Borromeo during his lifetime to the Cebu
Arcade, T. L. Borromeo y Cia. This motion for exclusion w as denied by
the low er court in its order of July 16, 1954, and the ruling w as
reiterated in the appealed decision "for the same reasons and
considerations" upon w hich it rejected the probate of the w ill. The
ruling on the matter, how ever, w as expressly made provisional in
nature.
We believe,and so hold, that the resolution of the low er court on this
matter is correct because said court, acting in its capacity as a
probate court, had no jurisdiction to determine w ith finality the
question of ow nership involved. That such matter must be litigated in a
separate action has been the established jurisprudence in this
jurisdiction (Ongsinco vs. Borja, L-7635,July 25,1955; M allari vs. M allari,
L-4656,February 23, 1953; Garcia vs. M artin, G.R. No. L-9233, June 29,
1957; Cordova vs. Ocampo, 73 Phil. 661; Pascual vs. Pascual, 73 Phil.
561 and others),except wherea party merely prays for the inclusion or
exclusion from the inventory of any particular property, in w hich case
the probate court may pass upon provisionally, the question of
inclusion or exclusion,but w ithout prejudice to its final determination in
an appropriate separate action (Garcia vs. Garcia, 67 Phil. 353;
M arcelino vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144,
147).
In view of all the foregoing, the decision appealed from is affirmed,
w ith costs.
Concepcion, C.J., Reyes, J.B.L., Regala, Makalint al, Bengzon, J.P.,
Zaldivar, Sanchez and Cast ro, JJ., concur.
SAM SON VS CORRALES (ART 799)
CUYUGAN VS BARON (ART 799)
G.R. Nos. L-3272-73 November 29, 1951
MANUEL GONZALES, petitioner-appellant,
vs.
MANOLITA GONZALES DE CARUNGCONG, petitioner-appellee;
ALEJANDRO GONZALES, JR., and JUAN GONZALES, oppositors-
appellants.
Claro M. Rect o for pet it ioner and appellant .
Reyes, Albert , Agcaoili and Raf. L. Arcega for pet itioner and appellee.
Emiliano Pamint uan and Felixbert o M. Serrano for opposit ors and
appellant s.
PARAS, C.J.:
On November 27,1948,M anuel Ibarra Vda. de Gonzales (hereafter to
be referred to as testatrix) died at the age of about seventy-eight
years, leaving five children, namely, Alejandro Gonzales, Leopoldo
Gonzales, M anolita Gonzales de Carungcong, and Juan Gonzales.
The estate left by her is estimated at P150,000.
On December 22, 1948, M anuel Gonzales filed in the Court of First
Instance of Rizal a petition (Special Proceeding No. 837) for the
probate of an alleged w ill executed by the testatrix on November 16,
1942 (Exhibit B—Manuel Gonzales), devising to M anuel Gonzales the
greater portion of the estate, w ithout impairing the legitimes of the
other children.
On December 31,1948,M anolita G. de Carungcong filed in the same
court a petition (Special Proceeding No. 838) for the probate of
another alleged w ill executed by thetestatrix on M ay 5, 1945 (Exhibit
1—M anolitaG. Carungcong),leaving to M anolita G. de Carungcong
the greater bulk of the estate, w ithout impairing the legitimes of the
other children.
In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr.
sought the disallow ance of the wills executed on November 16, 1942,
and M ay 5,1945,on the ground that,assuming their validity,they had
been revoked by the testatrix in an instrument executed by her on
November 18,1948 (Exhibit 2—Alejandro and Juan Gonzales),w ith the
result that her estate should be distributed as if she died intestate.
With the exception of LeopoldoGonzales,the children of the testatrix
filed mutual oppositions to one or the other instruments tending to
negative their respective positions.
After a joint hearing, the Court of First Instance of Rizal rendered a
decision w ith the follow ing dispositive pronouncements:
All facts considered in the light of the evidence presented
and in the manner in w hich the w itnesses testified the court
concludes and holds:
First: That Exhibit B — M anuel Gonzales, though
validly executed on November 16, 1942, w as revoked by
Exhibit 1—M anolita G. Carungcong in accordance w ith the
provisions of section 623 of the Code of Civil Procedure.
Second: That Exhibit 2 — Alejandro and Juan
Gonzales being executed w ithout the know ledge and
testamentary capacity of the testatrix and being contrary to
the provisions of section 618 of the Code of Civil Procedure,
the said document is hereby declared null and void.
Third: That Exhibit 1 — M anolita G. Carungcong
having been executed in accordance w ith law the same is
hereby declared as the true and last w ill and testament of
the deceased M anuelaIbarra Viuda de Gonzales, and said
w ill is hereby admitted probate.
From this judgment petitioner M anuel Gonzales and oppositors
Alejandro Gonzales, Jr. and Juan Gonzales have appealed. The
appeal as to Juan Gonzales w as dismissed in view of his failure to pay
the proportionateshare of the printing cost of the record on appeal.
In the parts material to the present appeal, the w ill executed by the
testatrix on M ay 5, 1945, is of the follow ing form and tenor:
IKALABING-DALAWA. Na ang aking HULING BILIN AT
TESTAM ENTONG ito ay binubuo ng PITONG (7) dahon o
pagina na may bilang na sunud-sunod at ang baw a't
dahon o pagina ay mayroong tunay kong lagda o firma,
gayon din ang lahat ng aking saksi o testigos.
SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking
nilagdaan ito dito sa Imus,Kavite,Filipinas ngayong ika-5 ng
M ayo ng taong 1945,na nakaharap dito sa ating paglagda
o pagfirma ang tatlong saksi o testigos. At aking ding
nilagdaan o pinirmahan ang tagilirang kaliw a ng lahat at
baw a't dahon o pagina nitong testamento kong ito sa
harap ng lahat at baw a't isang saksi o testigos at ang lahat
at baw a't isa naman sa kanila ay nangagsilagda o
nagsifirma din dito bilang saksi ko sa harap ko at sa harap
ng lahat at baw a't isa sa kanila, at ganoon din silang mga
saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliw a
ng lahat at baw a't isa sa mga dahon o pagina nitong aking
testamento.

55. 55
(Sgd.) M ANUELA Y. VDA. DE GONZALES
M ANUELA IBARRA VDA. DE GONZALES
M ga Saksi o Testigos:
(Sgd.) BIENVENIDO DE LOS REYES
(Sgd.) TAHIM IK T. SAYOC
(Sgd.) LUIS GAERLAN
It is contended for the appellants that this w ill does not contain any
attestation clause; that, assuming the concluding paragraph to be
the attestation clause,it is not valid because it is the act of the testatrix
and not of the w itnesses,and because it does not state thenumber of
sheets or pages of the w ill.
In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R.
No. L-3497,decided M ay,1951 * w e sustained, finding a precedent in
Aldaba vs. Roque, 43 Phil., 378, an attestation clause made by the
testator and forming part of the body of the w ill. Through M r. Justice
Bautista, w e held:
The clause above quoted is the attestation clause referred
to in the law w hich, in our opinion, substantially complies
w ith its requirements. Theonly apparent anomaly w e find is
that it appears to be an attestation made by the testator
himself more than by the instrumental w itnesses. This
apparent anomaly,how ever,is not in our opinion serious nor
substantial as to affect the validity of the w ill, it appearing
that right under the signature of the testator, there appear
the signatures of the three instrumental w itnesses.
Instrumental w itnesses, as defined by Escriche in his
Diccionario Razobada de Legislacion, y Jurisprudencia, Vol.
4, p. 1115, is on w ho takes part in the execution of an
instrument or w riting" (in re w ill of Tan Diuco, 45 Phil., 807,
809). An instrumental w itness, therefore, does not merely
attest to the signatureof the testator but also to the proper
execution of the w ill. The fact that the three instrumental
w itnesses have signed the w ill immediately under the
signature of the testator, show s that they have in fact
attested not only to the genuineness of his signature but also
to the due execution of the w ill as embodied in the
attestation clause.
The attestation clause in question bears also similarity w ith
the attestation clause in the w ill involved in Aldaba vs.
Roque, (43 Phil., 378). In that case, the attestation clause
formed part of the body of the w ill and its recital w as made
by the testatrix herself and w as signed by her and by the
three instrumental witnesses. In upholding the validity of the
w ill, the court said:
In reality, it appears that it is the testatrix w ho makes the
declaration about the points in the last paragraph of the
w ill;how ever, as the w itnesses, together w ith the testatrix,
have signed the said declaration,w e are of the opinion and
so hold that the w ords above quoted of the testament
constitute a sufficient compliance w ith the requirements of
Act No. 2465.
Of course three of the Justices of this Court concurred in the result, "in
the possibility that the testator in the present case, or the person or
persons w ho prepared thewill had relied upon the ruling laid dow n in
the case of Aldaba vs. Roque, supra,and that it w ould now be unfair
to reject the present w ill w hen in its preparation a ruling of this Court
has been follow ed." But the case at bar still falls w ithin this view,the w ill
(Exhibit 1—M anolitaG. Carongcong) having been executed on M ay
5, 1945.
The attestation clause contained in the body of the w ill being thus
valid, the statement in the penultimate paragraph of the w ill
hereinabove quoted as to the number of sheets or pages used, is
sufficient attestation which may be consideredin conjunction w ith the
last paragraph. It is significant that the law does not require the
attestation to be contained in a single clause. While perfection in the
drafting of a w ill may be desirable, unsubstantial departure from the
usual forms should be ignored,especially w hen the authenticity of the
w ill is not assailed, as in this case.
The result reached in respect of the sufficiency of the w ill (Exhibit 1—
M anolita G. Carongcong) necessarily disposes of the contention of
the appellant M anuel Gonzales that the trial court erred in not
admitting to probatethe w ill (Exhibit B—M anuel Gonzales), since the
latter w ill must be considered revoked by the subsequent w ill (Exhibit
1—M anolita G. Carongcong).
What remains to be discussed is the claim of appellant Alejandro
Gonzales, Jr. that the w ill (Exhibit 1—M anolita G. Carongcong) has
been revoked by the testatrix in the instrument of November 18, 1948
(Exhibit 2—Alejandro and Juan Gonzales) w hich provides as follow s:
Ako, M ANUEL YBARRA VDA. DE GONZALES, may sapat na
gulang at naninirahan sa ciudad ng Rizal, may mahusay at
w astong pag-iisip at mabuting pagtatanda, sa
pamamagitan ng kasulatang ito at bilang huling
kapasiyahan ay sinasaysay ko ito at ipinahahayag sa
ngayon sa alin mang testamento o huling habilin na
napirmahan kong una sa kasulatang ito ay pinaw awalan ko
ng saysay at kabuluhang lahat pagkat hindi iyong tunay
kong kalooban ngayon.
Sa katunayan ng lahat ng ito at sa pagkat hindi ako
makalagda ngayon ang pina-kiusapan si Constancio
Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng
Noviembre ng taong ito 1948, dito sa ciudad ng Pasay.
Appellee M anolita G. de Carungcong, like M anuel Gonzales (as
appellee), contends that the testatrix lacked the testamentary
capacity w hen she allegedly executed the instrument of revocation,
and their contention w as sustained by the trial court. We have
examined the record and found no valid reason for reversing the
finding of said court w hich had the benefit of observing and hearing
the w itnesses testify.Upon the other hand,the follow ing considerations
amply support the appealed decision:.
1. For more than ten years prior to her death,the testatrix had suffered
from hypertension. On November 14, 1948, she had aphasia and on
November 15,1948,she w as taken tothe hospital upon advice of the
family physician, Dr. Jose C. Leveriza. In the letter introducing her to
the hospital authorities (Exhibit E—M anuel Gonzales), Dr. Leveriza
stated that the testatrix was suffering from hypertension and cerebral
thrombosis. Particularly on November 18, 1948, w hen the alleged
instrument of revocation was executed by her, the testatrix w as in a
comatose and unconscious state and could not talk or understand.
The follow ing is the testimony of Dr. Leveriza portraying the physical
condition of the testatrix up to November 18, 1948:
P. Y que hizo usted cuando Doña M anuela I. Vda. de
Gonzales ya estaba en el hospital?—R. M e fui alla para
examinarla.
P. Cual era el resultado de su examen?—R. Cuando fue
al hospital a examinarla en el primer dia via que la aphasia
se agravo, o sea que ha perdido el poder de hablar
inteligentemente; tambien encontre que estaba
inconsciente, durmiendo constantemente y no se le podia,
despertar, tenia la respiracion fatigosa, lenta y con
estertores, y no podia levantarse, asi que yo perscribi que
diera el alimento por medio de hypodermoclysis, o sea por
medio de inyecciones.

56. 56
Sr. PAM INTUAN.—Quisieramos saber, Su Señoria, si se
presenta al testigo como experto?
Sr. SERRANO.—Tambien quisiera saber si se presenta como
madico de la familia o como medico experto?.
Sr. ARCEGA.—Presento al testigo como medico de
cabecere y como medico experto al mismo tiempo.
P. Y que hicieron en el hospital en vista de sus
instrucciones?—R. Cumplieron la prescripcion mia.
P. Que sucedio con respecto al estado de la
paciente?—R. La paciente a medida que pasaban los dias
se quedaba grave cada vez y mas graves los sintomas aun
que al primer dia en que fue ella llevada al hospital.
P. Volviendome a la condicion de la paciente, en que
estado se encontraba Doña M anuela I.Vda. de gonzales el
14 de noviembre de 1948 antes de ingresarla en el
hospital?—R. La encontre con aphasia, no podia hablar
inteligentemente.
"P. Puede usted explicar al Juzgado el curso de la
enfermedad de Doña M anuela I. Vda. de Gonzales?—R.
Estuvo agravandose desde el segundo dia en que fue
ingresada al hospital,y desde ese dia orinaba y deponia en
la cama inconscientemente.
xxx xxx xxx
(t.s.n., Laquindanum, M arch 21, 1949, pp. 24-26.)
P. Explique usted al Juzgado el curso de la enfermedad
de la paciente haciendo referencia de las fechas que
aparecen en los Exhibitos 3 y 3-4?—R. El noviembre 14,
ordene el ingreso de la paciente al M ercy Hospital, porque
tuvo paralisis parcial en la lengua, probablemente de
origen embalismo o thrombosis cerebral,y como ya era de
noche no se llevo al hospital,sino el dia 15 de noviembre en
donde le he hecho dos visitas; la condicion de la pacient e
cont inuo empeorandohasta el dia 25 de noviembre en que
sobrevino la complicacion de pneumonia hypost at ica
hast a que fallecio el noviembre 27, 1948, a las 2:30 p.m.
xxx xxx xxx
(t.s.n., Laquindanum, M arch 21, 1948, pp. 28-29.)
JUZGADO.—P. Como llego ust ed a esa conclusion de que
desde el 14 de noviembrede 1948en que ust ed ordeno la
ent rega de la pacient eal hospital empeoro su salud hast a
que murio el dia 27 de noviembrede 1948?-R. Porque cada
vez mas se acent ua su est ado comat oso, y demas su
respiracion se hacia mas fat igosa cada vez que pasaban
los dias, y con est ert ores.
P. Y como est aba su est ado ment al?—R. Est aba
complet amente inconsciente desdeel dia en que ent ro en
el hospit al.
Sr. ARCEGA. — P. Podia hablar la paciente en la fecha
en que fue ingresada al hospital?-R. No, señor.
P. Despues del 15 de noviembre de 1948 en que segun
usted fue ingresada la paciente en el hospital podia hablar
ella y hacer entender sus palabras?—R. No, señor.
P. Y que hacia la paciente?—R. Estaba durmiendo
continuamente, no podia abrir sus ojos por si sola, sino que
yo abria para ver la pupila.
P. Trato usted de tener conversacion con la paciente?—
R. Naturalmente trataba, pero contestaba, y ni creo que
me entendia.
P. Podia levantarse la paciente?—R. No, señor, porque
estaba en estado comtosos, y para prevenir la pneumonia
hypostatica dos o tres hombres tenian que levantaria y
ponerla algo de costado o algo asi reclinada.
P. Y que resultado tuvo esa precaucion que usted
tomo?—R. Se ha retrasado o retardadole pneumonia,pero
sobrevino, al fin, que siempre es fatal.
P. Usted dijo que al fin sobrevino la pneumonia, que
efecto tuvo esa pneumonia a la paciente?—R. Precipito la
muerte de la paciente.
P. El 18 de noviembre de 1948, segun testimonio de los
testigos,otorgaron el documento Exhibit 2-Alejandro y Juan
Gonzales, puede usted decir al Juzgado en que estado se
encontraba Doña M anuela I. Vda. de Gonzales?—R. Estaba
en estado comatoso.
P. Por que sabe usted eso?—R. Porque en esa fecha yo
la visite dos veces: una por la mañana y otra por la tarde.
P. Y estando en el estado comatoso, como usted, dice,
puede usted decir al Juzgado si podia ella hablar o
entender sus palabras o su deseo?—R. No, señor.
P. Hizo usted esfuerzos para hacerie comprender sus
palabras?—R. Siempre examinaba a ella para ver si
reaccionaba favorablemente la paciente, pero cada vez
era peor.
P. Puede usted decir si en aquella fecha la paciente
podia siquiera hacer movimiento de cabeza?—R. No,señor,
porque la parte derecha del cuerpo tenia hemiflejia o
paralisis.
P. Cual es la causa de oso que usted dice hemiflejia o
paralisis?—R. Generalmente se debe a una hemorragia
cerebral o trombosis del cerebro.
P. Teniendo hemorragia cerebral o trombosis del
cerebro, segun usted, cual es la parte del cuerpo humano
que queda afectada?—R. La cabeza y tambien los brazos,
como los miembros del cuerpo.
P. Que quiere usted decir como los miembros del
cuerpo?—R. Las manos y los pies.
P. Podia mover la paciente sus manos y su cuerpo?—R.
La parte izquierda si.
P. Y la parte derecha?-R. No, señor.
JUZGADO.—Pero una persona en ese estado de salud,
como estaba la paciente Doña M anuela I. Vda. de
Gonzales,el 18 de noviembre de 1948, podia comprender
palabras dichas a ella o indicaciones hechas por alguna
persona a ella?—R. No, señor.(t.s.n. Laquindanum, M arch
21, 1948, pp. 30-33.).

57. 57
While appellant Alejandro Gonzales, Jr. has attempted to show that
Dr. Leveriza w as not an expert, the latters's testimony remains
uncontradicted. The fact that the testimony of the attesting w itnesses
tends to imply that the testatrix w as of sound mind at the time the
alleged instrument of revocation w as executed, cannot prevail over
the findings of the attending physician,Dr. Leveriza, because even Dr.
Ramon C. Talavera (an attesting w itness) testified that although he
had not examined the testatrix, her case appeared serious; that he
had a hunch that "they w ere taking advantageof the last moment of
the deceased and they w ere trying to make me an instrument in the
accomplishment of their aims," and that he had the idea that the
testatrix was in doubtful condition because he "could only judge from
the people going there.".
It is also argued that if the testatrix w as in a comatose condition, Dr.
Leveriza w ould not haveorderedto "let her sit on bed or on chair and
let her turn on her side sometime." However,Dr. Leveriza has given the
reason for this prescription, namely, to avoid hypostatic pneumonia.
In support of the contention that the testimony of the attesting
w itnesses should be given more credence than the opinion of an
expert w itness, reliance is placed on the case of Caguioa vs.
Calderon, 20 Phil., 400; Bagtas vs. Paguio, 22 Phil., 227; Galvez vs.
Galvez, 26 Phil., 243; Samson vs. Corrales Tan Quintin, 44 Phil., 573;
Amata vs. Tablizo, 48 Phil., 485, and Neyra vs. Neyra, 42, Off. Gaz.,
2790 ** These cases are notably distinguishable from the case at bar.
The former refer to situations in w hich the doctors w ere not in a
position to certify definitely as the testamentary capacity of the
testators at the time the w ills therein involved w ere executed,
because they had not observed the testators on said dates or never
saw them;w hereas the case now beforeus involves a family physician
w ho attended the testatrix during her last illness and saw her on the
day w hen the alleged instrument of revocation w as executed.
2. We cannot help expressing our surprise at the fact that the
instrument of revocation w as allegedly executed on November 18,
1948,w hen,according to the testimony of Jose Padilla,the latter w as
asked by the testatrix to prepare the necessary document as early as
in the month of M ay,1948,and reminded about it for the second time
w eeks before November 1, 1948, and for the third time several days
before the latter date (November 1, 1948). The first excuse given by
Jose Padilla for the delay is that he w as busy and the children of the
testatrix had certain disputes w hich he tried to settle. The second
excuse is that he w as not able to secure soon enough from Alejandro
Gonzales, Jr. some documents of transfer w hich he w anted to
examine in connection w ith thepreparation of the desired instrument
of revocation. We are inclined to state that these excuses are rather
poor. If Jose Padilla w as too busy to give attention to the matter, he
could have very easily informed the testatrix and the latter, if really
desirous of revoking her former w ills, w ould haveemployed another to
prepare the requisite document. The fact that there w ere disputes
betw een the children of the testatrix certainly was not an obstacle to
the accomplishment of the w ish of the testatrix. Neither w as it
necessary to examinethe documents relating to the properties of the
testatrix,since the instrument of revocation could be prepared without
any reference to the details of her estate. Indeed, the instrument
(Exhibit 2—Alejandro and Juan Gonzales) is couched in general terms.
3. Even under the theory of the appellant Alejandro Gonzales, Jr. it is
hard to rule that the testatrix had sufficient testamentary capacity at
the time of the execution of the alleged instrument of revocation. In
the first place, Constancio Padilla (brother of Jose Padilla) merely
asked the testatrix, first, if she w as agreeable to the instrument of
revocation prepared by Jose Padilla, and secondly, if she w as
agreeable to the signing of said document by Constancio Padilla, to
w hich tw o questions the testatrix allegedly answ ered "Yes". It is not
pretended that the testatrix said moreabout the matter or gave any
further instruction. The attestingwitnesses w ere not introduced to the
testatrix, and their presence w as not even mentioned to her. it is
obviously doubtful w hether the testatrix understood the meaning and
extent of the ceremony. Assuming that the testatrix answ ered in the
affirmative the two questions of Constancio Padilla,w ithout more, w e
cannot fairly attribute to her manifestation of her desire to proceed,
right then and there,w ith the signing of the questioned instrument. In
other w ords, contrary to the recital of the attestation clause, the
testatrix cannot rightly be said to have published her last w ill to the
attesting w itnesses.
The appealed decision is, therefore, affirmed w ithout costs. So
ordered.
ARTICLE 804
ABADA VS. ABAJA (ART 795)
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gut ierrez and Adorable for appellant .
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed
unsuccessfully the probate of w hat purports to be the last w ill and
testament (Exhibit A) of Don Sixto Lopez,w ho died at the age of 83 in
Balayan, Batangas, on M arch 3, 1947, almost six months after the
document in question w as executed. In the court below , the present
appellant specified five grounds for his opposition, to w it: (1) that the
deceased never executed the alleged w ill; (2) that his signature
appearing in said w ill w as a forgery; (3) that at the time of the
execution of the w ill, he w as w anting in testamentary as w ell as
mental capacity due to advanced age; (4) that, if he did ever
execute said w ill,it w asnot executed and attested as required by law,
and one of the alleged instrumental w itnesses w as incapacitated to
act as such; and it w as procured by duress, influence of fear and
threats and undue and improper pressure and influence on the part of
the beneficiaries instituted therein, principally the testator's sister,
Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5)
that the signature of the testator w as procured by fraud or trick.
In this instance only one of these objections is reiterated,formulated in
these w ords: "That the court a quo erred in holding that the document
Exhibit "A" w as executed in all particulars as required by law ." To this
objection is added the alleged error of the court "in allow ing the
petitioner to introduce evidence that Exhibit "A" w as w ritten in a
language know n to the decedent after petitioner rested his case and
over the vigorous objection of the oppositor.
The w ill in question comprises tw o pages, each of w hich is w ritten on
one side of a separate sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the appellant believes, is a fatal
defect.
The purpose of the law in prescribing the paging of w ills is guard
against fraud, and to afford means of preventing the substitution or of
defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil.,
476.) In the present case, the omission to put a page number on the
first sheet, if that be necessary, is supplied by other forms of
identification more trustworthy than the conventional numerical words
or characters. The unnumbered page is clearly identified as the first
page by the internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence, the
first and second lines on the second page are undeniably a
continuation of the last sentence of the testament, before the
attestation clause,w hich starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains the caption
"TESTAM ENTO," the invocation of the Almighty, and a recital that the
testator was in full use of his testamentary faculty, — all of w hich,in the

58. 58
logical order of sequence,precede the direction for the disposition of
the marker's property.Again,as page tw o contains only the tw o lines
above mentioned,the attestation clause,the mark of the testator and
the signatures of the w itnesses, the other sheet can not by any
possibility be taken for other than page one.Abangan vs.
Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are
decisive of this issue.
Although not falling w ithin the purview and scope of the first
assignment of error, the matter of the credibility of the w itnesses is
assailed under this heading. On the merits w e do not believe that the
appellant's contention deserves serious consideration. Such
contradictions in the testimony of the instrumental witnesses as are set
out in the appellant's brief are incidents not all of w hich every one of
the w itnesses can be supposed to have perceived, or to recall in the
same order in w hich they occurred.
Everyday life and the result of investigations made in the
field of experimental psychology show that the
contradictions of w itnesses generally occur in the details of
a certain incident, after a long series of questioning, and far
from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those w ho
w itness an incident are impressed in like manner, it is but
natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their
testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing
his name. The reason for this w as that the testator w as suffering from
"partial paralysis." While another in testator's place might have
directed someone else to sign for him, as appellant contends should
have been done,there is nothing curious or suspicious in the fact that
the testator chose the use of mark as the means of authenticating his
w ill. It w as a matter of taste or preference. Both w ays are good. A
statute requiring a w ill to be "signed" is satisfied if the signature is made
by the testator's mark.(De Gala vs. Gonzales and Ona,53 Phil., 108; 28
R. C. L., 117.)
With reference to the second assignment of error,w edo not share the
opinion that the trial court communicated an abuse of discretion in
allow ing the appellant to offer evidence to prove know ledge of
Spanish by the testator,the language in w hich the w ill is draw n, after
the petitioner had rested his case and after the opponent had moved
for dismissal of the petition on the ground of insufficiency of evidence.
It is w ithin the discretion of the court w hether or not to admit further
evidence after the party offering the evidence has rested, and this
discretion w ill not be review ed except w here it has clearly been
abused. (64 C. J., 160.) M ore, it is w ithin the sound discretion of the
court w hether or not it w ill allow the case to be reopened for the
further introduction of evidence after a motion or request for a
nonsuit, or a demurrer t o t he evidence, and the case may be
reopened after the court has announced its intention as to its ruling on
the request, motion, or demurrer, or has granted it or has denied the
same,or after the motion has been granted,if the order has not been
w ritten, or entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been follow ed. After the parties have
produced their respective direct proofs, they are allow ed to offer
rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling w ill not be disturbed in
the appellate court w here no abuse of discretion appears. (Siuliong
and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
generally,additional evidence is allowed when it is new ly discovered,
or w here it has been omitted through inadvertence or mistake, or
w here the purpose of the evidence is to the evidence is to correct
evidence previously offered. (I M oran's Comments on the Rules of
Court, 2d ed., 545;64 C. J., 160-163.) The omission to present evidence
on the testator's know ledge of Spanish had not been deliberate. It
w as due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant
impugns the w ill for its silence on the testator's understanding of the
language used in the testament.There is no statutory requirement that
such know ledge be expressly stated in the w ill itself. It is a matter that
may be established by proof aliunde. This Court so impliedly ruled
in Gonzales vs. Laurel, 46 Phil., 781, in w hich the probate of a w ill
w ritten in Tagalogwas ordered although it did not say that thetestator
knew that idiom. In fact,there w as not even extraneous proof on the
subject other than the fact that the testator resided in a Tagalog
region,from w hich the court said "a presumption arises that said Maria
Tapia knew the Tagalog dialect.
The order of the low er court ordering the probate of the last w ill and
testament of Don Sixto Lopez is affirmed, w ith costs.
Paras, Pablo, Perfect o, Bengzon, Briones and Padilla, JJ., concur.
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sot t o for appellant s.
M. Jesus Cuenco for appellee.
AVANCEÑA, J.:
On September 19,1917,the Court of First Instance of Cebu admitted
to probate Ana Abangan's w ill executed July,1916. From this decision
the opponent's appealed.
Said document,duly probated as Ana Abangan's w ill, consists of tw o
sheets,the first of w hich contains all of the disposition of the testatrix,
duly signed at the bottom by M artin M ontalban (in the name and
under the direction of the testatrix) and by three w itnesses. The
follow ing sheet contains only the attestation clause duly signed at the
bottom by the threeinstrumental witnesses. Neither of these sheets is
signed on the left margin by the testatrix and the three w itnesses, nor
numbered by letters; and these omissions, according to appellants'
contention,are defects w hereby the probate of the w ill should have
been denied. We are of the opinion that the w ill was duly admitted to
probate.
In requiring that each and every sheet of the will should also be signed
on the left margin by the testator and three witnesses in the presence
of each other,Act No. 2645 (w hich is the one applicable in the case)
evidently has for its object (referring to the body of the w ill itself) to
avoid the substitution of any of said sheets, thereby changing the
testator's dispositions.But when thesedispositions are wholly written on
only one sheet signed at the bottom by the testator and three
w itnesses (as the instant case), their signatures on the left margin of
said sheet w ould be completely purposeless. In requiring this signature
on the margin, the statute took into consideration, undoubtedly, the
case of a w ill w ritten on several sheets and must have referred to the
sheets w hich the testator and the witnesses do not have to sign at the
bottom. A different interpretation w ould assume that the statute
requires that this sheet,already signed at the bottom,be signed twice.
We cannot attribute to the statute such an intention. As these
signatures must be w ritten by the testator and the w itnesses in the
presence of each other, it appears that, if the signatures at the
bottom of the sheet guaranties its authenticity,another signatureon its
left margin w ould be unneccessary;and if they do not guaranty,same
signatures,affixed on another part of same sheet,w ould add nothing.
We cannot assume that the statute regards of such importance the
place w here the testator and the w itnesses must sign on the sheet that
it w ould consider that their signatures w ritten on the bottom do not

59. 59
guaranty the authenticity of the sheet but,if repeated on the margin,
give sufficient security.
In requiring that each and every page of a w ill must be numbered
correlatively in letters placed on the upper part of the sheet, it is
likew ise clear that the object of Act No. 2645 is to know w hether any
sheet of the w ill has been removed. But,w hen all the dispositive parts
of a w ill are w ritten on one sheet only, the object of the statute
disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause.
Wherefore, w ithout considering w hether or not this clause is an
essential part of the w ill, w e hold that in the one accompanying the
w ill in question, the signatures of the testatrix and of the three
w itnesseson the margin and the numbering of the pages of the sheet
are formalities not required by the statute. M oreover, referring
specially to the signature of the testatrix,w ecan add that same is not
necessary in the attestation clause because this, as its name implies,
appertains only to the w itnesses and not to the testator since the latter
does not attest, but executes, the w ill.
Synthesizing our opinion,w e hold that in a w ill consisting of tw o sheets
the first of w hich contains all the testamentary dispositions and is
signed at the bottom by the testator and three w itnesses and the
second contains only the attestation clause and is signed also at the
bottom by the threewitnesses,it is not necessary that both sheets be
further signed on their margins by the testator and the w itnesses,or be
paged.
The object of the solemnities surrounding the execution of w ills is to
close the door against bad faith and fraud, to avoid substitution of
w ills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a w ay
as to attain these primordal ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other
interpretation w hatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's
last w ill, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not
show that the testarix knew the dialect in w hich the w ill is w ritten. But
the circumstance appearing in the w ill itself that same w as executed
in the city of Cebu and in the dialect of this locality w here the testatrix
w as a neighbor is enough, in the absence of any proof to the
contrary, to presume that she knew this dialect in w hich this w ill is
w ritten.
For the foregoing considerations, the judgment appealed from is
hereby affirmed w ith costs against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, St reet and Malcolm, JJ.,
concur.
G.R. No. L-28946 January 16, 1929
In re estate of Piraso, deceased.
SIXTO ACOP, petitioner-appellant,
vs.
SALMING PIRASO, ET AL., opponents-appellees.
Gibbs and McDonough and Roman Ozaet a for appellant .
Adolfo A. Scheerer for appellees.
ROMUALDEZ, J.:
This appeal w as taken from the judgment of the Court of First Instance
of Benguet,denying the probate of the instrument Exhibit A,as the last
w ill and testament of the deceased Piraso.
The proponent-appellant assigns the following as alleged errors of the
low er court:
1. In holding that in order to be valid the w ill in question
should have been draw n up in the Ilocano dialect.
2. In not holding that the testator Piraso did not know the
Ilocano dialect w ell enough to understand a w ill draw n up
in said dialect.
3. In refusing to admit the w ill in question to probate.
The fundamental errors assigned refer chiefly to the part of the
judgment w hich reads as follow s:
The evidence show s that Piraso knew how to speak the
Ilocano dialect, although imperfectly, and could make
himself understood in that dialect, and the court is of the
opinion that his w ill should have been w ritten in that dialect.
Such statements w ere not unnecessary for the decision of the case,
once it has been proved w ithout contradiction, that the said
deceased Piraso did not know English, in w hich language the
instrument Exhibit A,alleged to be his w ill,is draw n. Section 628 of the
Code of Civil Procedure, strictly provides that:
"No will, except as provides in the preceding section" (as to w ills
executed by a Spaniard or a resident of the Philippine Islands, before
the present Code of Civil Procedure w ent into effect),"shall be valid to
pass any estate, real or personal, nor charge or affect the
same, unless it be writ t en in t he language or dialect known by t he
t estator," etc. (Emphasis supplied.) Nor can the presumption in favor of
the w ill established by this court in Abangan vs. Abangan (40 Phil.,
476),to the effect that the testator is presumed to know the dialect of
the locality w here he resides, unless there is proof to the contrary,
even he invoked in support of the probate of said document Exhibit A,
as a w ill, because, in the instant case, not only is it not proven that
English is the language of the City of Baguio w here the deceased
Piraso lived and w here Exhibit A w as draw n, but that the record
contains positive proof that said Piraso knew no other language than
the Igorrote dialect, w ith a smattering of Ilocano; that is, he did not
know the English language in w hich Exhibit A is w ritten. So that even if
such a presumption could have been raised in this case it w ould have
been w holly contradicted and destroyed.
We consider the other question raised in this appeal needless and
immaterial to the adjudication of this case, it having been, as it w as,
proven,that the instrument in question could not be probated as the
last w ill and testament of the deceased Piraso,having been w ritten in
the English language w ith w hich the latter w as unacquainted.
Such a result based upon solidly established facts would be the same
w hether or not it be technically held that said will,in order to be valid,
must be w ritten in the Ilocano dialect; w hether or not the Igorrote or
Inibaloi dialect is a cultivated language and used as a means of
communication in w riting,and w hether or not thetestator Piraso knew
the Ilocano dialect w ell enough to understand a w ill w ritten in said
dialect. The fact is, w e repeat, that it is quite certain that the
instrument Exhibit A w as written in English w hich the supposed testator
Piraso did not know , and this is sufficient to invalidate said w ill
according to the clear and positive provisions of the law , and
inevitably prevents its probate.
The judgment appealed from is affirmed,w ith the costs of this instance
against the appellant. So ordered.

60. 60
Avanceña, C. J., Malcolm, Villamor, Ost rand and Villa-Real, JJ.,
concur.
G.R. No. L-2862 April 21, 1952
TESTATE ESTATE OF MARIA ZUÑIGA VDA. DE PANDO, deceased. JUAN
REYES, petitioner-administrator-appellant,
vs.
DOLORES ZUÑIGA VDA. DE VIDAL, oppositor-appellee.
Jose Sot elo Mat i and Agust in Alvarez Salazar for appellant .
Jose Perez Cardenas for appellee.
BAUTISTA ANGELO, J.:
This concerns the admission to probate of a document claimed to be
the last w ill and testament of Maria Zuñiga Vda. de Pando w hodied in
the City of M anila on October 29, 1945.
On November 6,1945,a petition for the probateof said w ill was filed in
the Court of First Instance of M anila. On December 21, 1945, Dolores
Zuñiga Vda. de Vidal, sister of the deceased, filed an opposition
based on several grounds. And, after several days of trial, at w hich
both parties presentedtheir respective evidence, the court rendered
its decision disallow ing the will on the ground that the signatures of the
deceased appearing therein are not genuine,that it w as not proven
that the deceased knew the Spanish language in w hich it w as written,
and that even if the signatures are genuine,the same reveal that the
deceased w as not of sound mind w hen she signed the w ill. From this
decision petitioner appealed to this Court.
While petitioner imputes nine errors to the low er court, w e believe,
how ever,that for purposes of this appeal of discussion of some w ould
be sufficient. Thus, the issues may be boiled dow n as follow s: 1)
Whether or not the signatures of the deceased appearing in the w ill
(Exhibit "C") are genuine;2) w hether or not there is evidence to show
that the testatrix knew the language in which the w ill was written; and
3) w hether or not the testatrix was of sound and disposing mind w hen
she signed the w ill.
1. To prove that the will w as signed by the testatrix in accordance w ith
law ,petitioner presented as w itnesses the threepersons who attested
to the execution of the will. These witnesses are: Cornelia Gonzales de
Romero,Quintin Ulpindo and Consuelo B. de Catindig. The first used to
provide the deceased w ith ice every day, and in one of those
occasions she w ent to her house to bring ice, she requested to act
w itness to the execution of the will. The second w as a laborer w hose
job w as is to fix bed made of rattan,and in one of those days he w ent
to the house of the deceased to w ork, he w as asked also to w itness
the signing of the w ill. And the third w as a neighbor of the deceased
for many years w ho w as also requested to act as an instrumental
w itness. These witnesses testified in their ow n simple and natural w ay
that the deceased signed the will seated on her bed but over a small
table placed near the bed in their presence, and after she had signed
it in the places w here her signatures appear, they in turn signed it in
the presence and in the presence of each other. This is the substance
of w hat they have testifiedand from an examination of their testimony
to the court entertains no doubt that they had told the truth. There is
nothing in their testimony w hich may in any w ay reflect against their
credibility nor has the oppositor proven fact or circumstance w hich
may give rise to the suspicion that they testifiedout of personal interest
or pecuniary consideration. They have impressed the court as simple
persons w ho had intervened in the execution of the w ill out merely of
deference to the testatrix w hom they had served for sometime and
had know n to be a good and respectable w oman.
What evidence has the oppositor presented to contradict the
testimony of these instrumental w itnesses? only one expert w itness,
Jose G. Villanueva, w ho made a comparative analysis of the
signatures appearing in the w ill in relation to some genuine signatures
of the deceased,and in fact testified on the analysis and study he has
made of said signatures and submitted a memorandum on the study
and comparison he has made. And in his testimony as w ell as in his
memorandum,this w itness has reached the conclusion that the hand
that w rotethe signatures of the deceased appearing in the w ill is not
the same hand that w rote the genuine signatures he had examined
and w hich he used as basis of his analytical study,thereby concluding
that said signatures are not genuine. The low er court gave full faith
and credit to the opinion of this expert w itness, and decreed as a
result that the w ill cannot be admitted to probate.
There are,how ever,certain important facts and circumstances w hich
make us differ from this opinion of the low er court. In the first place,we
find that the opinion of this expert w itness has been rebutted by
another expert witness Jose C. Espinosa, w hose opinion, to our mind,
deserves more weight and credence. And our reason for reaching this
conclusion is the fact that the standards of the comparison used by
Espinosa are more reliable than those used by Villanueva in the
comparison are tw o signatures appearing in tw o documents
executed on November 10, 1942, one signature in an identification
card affixed in April 1940,a half signature appearing in a letter w ritten
on October 8, 1943,one signature appearing in a letter written on July
16, 1945,and one signature appearing in a letter w ritten on January,
1945, w hereas the disputed signatures appearing in the w ill w ere
affixed on October 29, 1945. On the other hand, the standards used
by Espinosa in making his comparative study bear dates much closer
to that of the disputed signatures. Thus, he examined four genuine
signatures that w ere affixed on October 16,1945,other four signatures
that w ere affixed in October 1945,one on January 2,1945,on January
24, 1945, and one on September 24 1945, He also examined one
affixed on M arch 12, 1941, only for emphasis. The closeness or
proximity of the time in w hich the standardsused had been w ritten to
that of the suspected signature or document is very important to bring
about an accurate analysis and conclusion. the selection of the
proper standards of comparison is of paramount importance
especially if w e consider the age and the state of the health of the
author of the questioned signatures. a signature affixed in 1941 may
involved characteristics different from those borne by a signature
affixed in 1945. And this is because the passing of time and the
increase in age may have a decisive influence in the w riting
characteristics of a person. It for this reasons that the authorities of the
opinion that in order to bring about an accurate comparison and
analysis, the standard of comparison must be as close as possible in
point of time to the suspected signature. Such w as not followed in the
study made by Villanueva. But such w as observed in the study made
by Espinosa. He follow ed the standard practice in handw riting
analysis. It is for this reason that w e hold that Espinosa's opinion
deserves more w eight and consideration.
The standards should, if possible, have been made by the
same time as the suspected document. It is preferable that
the standards embraced the time of the origin of the
document,so that one part comes from the time after the
origin. (Page 423 "M odern Criminal Investigation" by
Soderman and O' Connell, 1936, Funk and Wagnalls
Company, New York and London.)
If possible less than five or six signatures should alw ays be
examined and preferably double that number." (Page 139,
Forensic Chemistry and Scientific Criminal Investigation by
Lucas, 1935, Edw ard Arnold & Co., London.)
2. Another ground on w hich the low er court base the disallow ance of
the w ill is the failure of the petitioner to prove that the testratrix knew
and spoke the language in w hich the w ill in question appears to have
been w ritten. According to the low er court, the law requires that the
w ill should be w ritten in the dialect or language known to the testator
and this fact having been proven, the probate of the w ill must fail.
And the w all w as disallow ed.
There is indeed nothing in the testimony of the w itnesses presented by
the petitioner which w ould indicate that the testatrix knew and spoke

61. 61
the Spanish language used in the preparation of the w ill in question.
But, in our opinion, this failure alone does not in itself suffice to
conclude that this important requirement of the law has not been
complied w ith,it appearing that there is enough evidence on record
w hich supplies this technical omission. In the first place, w e have the
undisputed fact that the deceased w as a mest iza española, w as
married to a Spaniard, Recaredo Pando, and made several trips to
Spain. In the second place, w e have the very letters submitted as
evidence by the oppositor w ritten in Spanish by the deceased
possessed the Spanish language,oppositor cannot now be allowed to
allege the contrary. These facts give rise to the presumption that the
testatrix knew the languagein w hich the testament has been w ritten,
w hich presumption should stand unless the contrary is proven
(Abangan vs. Abangan, 40 Phil., 476;Gonzales vs. Laurel, 46 Phil. 750).
And this presumption has not been overcome. And finally, w e have
the very attestation clause of the w ill w hich states that the testatrix
knew and possessed the Spanish language. It is true that this matter is
not required to be stated in the attestation clause,but its inclusion can
only mean that the instrumental witnesses wanted to make it of record
that the deceased knew the language in w hich the w ill w as w ritten.
There is, therefore,no valid reason w hy the w ill should be avoided on
this ground.
3. The remaining ground w hich the low er court has considered in
disallow ing the will is the fact that the deceased wasnot of sound and
disposing mind w hen she signed the w ill, and it reached this
conclusion, not because of any direct evidence on the matter, but
simply because the deceased signed the w ill in a somew hat varied
form. On this point the low er court said:
El Juzgado es de opinion que aunque se admita que las
firmas arriba indicadas feuran de M aria Zuñiga Vda. de
Pando, las mismas revelan que ella no estabe en el pleno
de sus facultades mentales cuando la hicieron firmar el
documento, Exhibit C, pues el hecho de que en una sola
ocasion la repetida M aria Zuñiga Vda. de Pando firmo dos
veces,sin escribir su verdadero nombre,demuestra que ella
no se daba cuenta de sus actos por no hallarse
mentalmentesana. Si esto es asi,no se debe legalizar como
testamento y ultima voluntad de la finada M aria Zuñiga
Vda. de Pando el documento, Exhibit C, porque el Articulo
614 de la Ley 190 y el Articulo 12, Reglamentos de los
Tribunales, disponen que solamente pueden otorgar
testamento las personas que al tiempo de su otorgamiento
estaban en el pleno goce de sus facultades mentales.
The above conclusion is contrary to w hat the instrumental w itnesses
have said on this point. Cornelio Gonzales de Romero stated that she
spoke to the deceased before thesigning of the w ill,and judging from
the w ay she spoke she was of the impression that the deceased w as
of sound mind at the time. To the same effect is the testimony of
Consuelo B. de Catindig. She said that her impression w hen the
deceased signed the w ill w as that she could still talk and read, only
that she w as w eak. In fact she read the w ill before signing it. These
statements had not been contradicted. They give an idea of the
mental had not contradicted. They give an idea of mental condition
of the deceased in the w ill differ from each other in certain respects,
this is only due to her age and state of health rather than to a
defective mental condition.They do not reveal a condition of forgery
or lack of genuineness. These differences or irregularities are common
in the w ritings of old people and, far from show ing lack of
genuineness,are indicative of the age, sickness, or w eak condition of
the w riter. A comparison of the three disputed signatures in the w ill
readily give this impression.
Abbreviated, distorted and illegible, forms, w hich are
sufficiently free and rapid, often actually indicate
genuineness rather than forgery even though they are very
unusual and not exactly like those in the standard w riting.
Those w ho w rite of difficulty or hesitation through some
physical infirmity may sometimes produced broken and
unfinished signatures and these results, w hich in themselves
are distinctly divergent as compared w ith signatures
produced under conditions of strength and health, may
forcefully indicate genuineness . Under conditions of
w eakness due to diseased or age, parts of a genuine
signature may be clumsily w ritten over a second time not at
just the same place and in a w ay w hen clearly show s that
the w riter either could not see or w as so w eek and
inattentive as not to care w hat the result might be. This
careless, perfectly evident repetition (figure 184), unlike the
painstaking and delicate retouching of the forger, often
indicates genuineness. (Page 365, Questioned Documents
by Osborne, 2nd Edition, 1927.)
We are, therefore, of the opinion that the low er court erred in
disallow ing the w ill Exhibit C.
Wherefore,the decision appealed from is hereby reversed. The Court
admits the w ill Exhibit C to probate, and remands these case to the
low er court for further proceedings, w ith costs against the appellee.
Paras, C.J., Feria, Bengzon, Tuason, Mont emayor and Reyes,
JJ., concur.
G.R. No. L-13781 January 30, 1960
Testate Estate of JOSE J. JAVELLANA, Deceased. CRISTETA JIMENEA
VDA. DE JAVELLANA, and BENJAMIN JAVELLANA, petitioners-
appellees,
vs.
JOSE JAVELLANA y AZAOLA and JOSE JAVELLANA, JR., oppositors-
appellants.
Vicent e Hilado for appellees.
Delgado, Flores and Macapagal and Art uro E. Balbast ro for
appellant s.
BARRERA, J.:
On June 29, 1957, a petition to probate the alleged last w ill and
testament of Jose J. Javellana,w hodied on M ay 24 of the same year,
w as presented in the Court of First Instance of Rizal by Crsiteta
Jimenea Vda. de Javellana and Benjamin Javellana, w idow and
brother respectively of the deceased,alleging that the aforesaid Jose
J. Javellana,at the time of his death, a resident of Ssan Juan Rizal, left
porperties w ith an approximate valueof P400,000.00; that he also left
a w ill w hich w asdelivered to the clerk of court pursuant to the Rules of
Court; that Oscar Ledesma,therein named executor, had agreed to
act as such; that the decedent's next of kin w ere;the w ido., Criteta J.
Vda. de Javellana, his children — Erlinda Javellana, Jose Javellana y
Azaola, and Jose Javellana, Jr. (Pepito), his sister Juanito J. de
Ledesma, and brother Benjamin Javellana, w hose respective
addresses w re given in the petition.
To this petition, Jose Javellana y Azaola and Jose Javellana, Jr.
(Pepito) filed separate opposiytions, both claiming that the alleged
w ill of Jose J. Javellana deposited by peittioners with the clerk of court
w as null and void, the same not having been executed "in
accordance w ith the formalities required by law " and that "the legal
requirements necessary for its validit" had not been complied w ith.
At the hearing, petitioners introduced as evidence in support of the
petition, a copy of the w ill; certification of the date and cause of
death of the testator; proof of publication of the petition, once a
w eek for 3 consecutive weeks,in a new spaper of general circulation,
and thre testimonies of Jose G. Guevarra, Eloisa Villanueva and Jose
Yulo, Jr., the 3 instrumental w itnesses to the w ill, w hi, in sustancer,
testified that sometime in April, 1956, they w ere asked to w itness the
execution of the w ill of the late Jose. J. Javellana; that on the said
occasion, Jose J. Javellana signed the 4 pages of the w ill in their
presence,and they,in turn, also signed each and evey page thereof
in the presence of the testator and of one another; and that these

62. 62
acts w etre acknowledge before notary public Fernando Grey, Jr. on
the same occasion.
For their part, the oppositor limited their evidence to the presentation
of tw o letters in the Visayan dialect allegedly w ritten by the
deceased,the signatures appearing thereon being identified by Jose
Javellana,Jr. (Pepito) and M anuel Azaola,as those of the deceased,
for the sole purpose of comparing said signatures w oth those
appearing in the w ill.
On December 10,1957,the court a quo issued an order allow ing the
probate of the w ill and directing the issuance of letters testamentary
to Oscar Ledesma as executor thereoif,upon the latter's filing a bond
in the sum of P10,000.00. From this order, oppositors appealed to this
Court charging the low er court of committing error in allow ing
oprobate of the w ill, Exhibit C, on 2 grounds: (1) that the 3 sttesting
w itnesses failed to clearly and convincingly estabish the due
execution of the w ill;and (2) that petitioners failed to prove that the
w ill w as w ritten in a language know n to the testator.
The first basis of oppositor's appeal has no merit. It is true that
w itnesses, particularly M iss Eloisa Villanueva, apparently found
difficulty recalling w ho arrived first at the appointed place, or the
order of the w itnesses' signing the w ill, or failed to mention by name
the persons present at the time of the w itnesses w as signing the
document. These details, how ever, are minor and significant and do
not enervate their positivetestimony that at the execution of the w ill
the testator, the 3 w itnesses, the notary public and Atty. Vicente
Hilado w ere all together in the private office of the latter; that Jose
Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the instrumental
w itnesses, w ere unanimous in declaring that they actually saw the
testator sign the w ill as w ell as each and every page thereof, and
they, in turen, affixed their signatures to all of its 4 pages. For the
purpose of determining tjhe due execution of a w ill,it is not necessary
that the instrumental witnesses should give an accurate and detailed
account of the proceeding, such as recalling the order of the signing
of the document by the dsaid w irtneese. It is sufficient that they have
seen or at least w ere so situated at themoment that they could have
seen each other sign, had they w nated todo so.1 In fact,in the instant
case, at least tw o witnesses,Yulo and Guevarra,both testified hat the
testator and the 3 w itnesses signed in the presence of each and every
one of them.
With respect to the second ground, there is some merit in appellant's
contention that the language requirement of the law on w ills has not
been satisfactorily complied with in this case. Admittedly,there is want
of expression in the body of the w ill itself or in its attestation clause that
the testator knew Spanish,the language in w hich it is w ritten. It is true
that there is no statutory provision requiring this and that proof thereof
may be established by evidence aliunde.2 But here,there is absolutely
no such evidence presented by the petitioners-appellees. Not even
the petition for probate contains any allegation to this effect. No
reference to it w hatsoever is made in the appealed order.
In some cases,it is true, this lack of evidence w as considered cured by
presumptioin of know ledgeof the language or dialect used in the w ill,
as w here the w ill is executed in a certain province or locality, in the
dialect currently used in such provimnce or locality in w hich the
testator is a native or resident,the presumption arises that the testator
knew the dialect so used,in the absence of evidence to the contrary;
3 or w here the w ill is in Spanish, the fact that the testratrix w as a
"mestiza española",w as married to a Spaniard, made several trips to
Spain, and some of her letters in her ow n handw riting submitted as
evidence by the oppositor,are in Spanish,give rise to the presumption
that she knew the language in w hich the w ill w as w ritten, in the
absence of proof to the contrary.4
In the case before us, no such or similar circumstances exist. On the
contrary, there is evidence that the testator is a Visayan although
residing in San Juan, Rizal at the time of his death. The w ill w as
executed in the City of M anila. Undoubtedly, it cannot be said, and
there is no evidence, that Spaniards is the language currently used
either in San Juan, Rizal, or M anila. It follow s, therefore, that no
presumption can rise that the testator knew the Spanish Language.
But petitioner-appellees insist in their brief that the burden is on the
oppositors to allege and prove that the testator did not know the
Spanish language in the face of the legal presumption that "the law
has been obeyed", "that a w ill executed in the Philippines must be
presumed to have been executed in conformity w ith the law s of the
Philippines".5 and "that things have happened in accordance w ith the
ordinary course of nature and the ordinary habits of life", concluding
that it w oiuld certainly be contrary to the ordinary habits of life for a
person to execute his w ill in a language unknow n to him. This, w e
believe, is, to use a colloquial term, being the question. If the
argument of counsel is correct, then every unopposed w ill may be
probated upon its mere presentation in court, w ithout need of
producing evidence regarding its execution.Counsel's statement is its
ow n refutation.
We find, in the record stone indicia, although insufficient to give rise to
the presumption, that the testator might, in fact, have know n the
Spanish language. In oppositor's ow n Exhibit 3 (a letter admittedly
w ritten by thetestator) appear the salutation "Querido Primo" and the
complimentary ending "Su primo" w hich are Spanish terms. Having
found that al the formal requisites for the validity of the will have been
satisfactorily establishment, except the language requirement, w e
deem it in the interest of justice to afford the parties a opportunity to
present evidence, if they so desire, on this controverted issue.
Wherefore, let the records of this case be remanded to the court of
origin for furhter proceedings as above indicated,w ithout costs.It is so
ordered.
Paras, Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., Endencia and Gut ierrez David, JJ., concur.
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal,
Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of
Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for
having admitted to probate a will,w hich on its face is voidbecause it
is w ritten in English, a language not know n to the illiterate testatrix,and
w hich is probably a forged will because she and the attesting
w itnessesdid not appear before thenotary as admitted by the notary
himself?
That question arises under the pleadings filed in the testate case and
in the certiorari case in the Court of Appeals w hich reveal the
follow ing tangled strands of human relationship:
M auro Suroza, a corporal in the 45th Infantry of the U.S. Army
(Philippine Scouts),Fort M cKinley,married M arcelina Salvador in 1923
(p. 150,Spec. Proc. No. 7816). They were childless. They reared a boy
named Agapito w ho used the surname Suroza and w ho considered
them as his parents as show n in his 1945 marriage contract with Nenita
de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate
Case show ing that Agapito w as 5 years old w hen M auro married
M arcelina in 1923).

63. 63
M auro died in 1942. M arcelina, as a veteran's w idow , became a
pensioner of the Federal Government.That explains w hy on her death
she had accumulated some cash in tw o banks.
Agapito and Nenita begot a child named Lilia w ho became a
medical technologist and w ent abroad. Agapito also became a
soldier. He w as disabled and his w ife Nenita w as appointed as his
guardian in 1953 w hen he w as declared an incompetent in Special
Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig
Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection,it should be noted that a w oman named Arsenia
de la Cruz w anted also to be his guardian in another proceeding.
Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to
Agapito (pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian of
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California (p. 87,
Record).
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named M arilyn Sy, w ho, w hen a few
days old, w as entrusted to Arsenia de la Cruz (apparently a girl friend
of Agapito) and w ho w as later delivered to MarcelinaSalvador Suroza
w ho brought her up as a supposed daughter of Agapito and as her
granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). M arilyn
used the surname Suroza. She stayed w ith M arcelina but w as not
legally adopted by Agapito. She married Oscar M edrano and is
residing at 7666 J.B. Roxas Street, M akati, apparently a neighbor of
M arina Paje, a resident of 7668 J.B. Roxas Street.
M arcelina supposedly executed a notarial w ill in M anila on July 23,
1973, w hen she w as 73 years old. That will which is in English was
t humbmarked by her. She was illit erat e. Her letters in English to the
Veterans Administration werealso thumbmarked by her (pp. 38-39,CA
Rollo). In that w ig, M arcelina bequeathed all her estate to her
supposed granddaughter M arilyn.
M arcelina died on November 15, 1974 at the Veterans Hospital in
Quezon City. At the time of her death,she w as a resident of 7374 San
M aximo Street,Olimpia,M akati,Rizal. She ow ned a 150-square meter
lot and house in that place. She acquired the lot in 1966 (p. 134,
Record of testate case).
On January 13,1975,M arina Paje, alleged to be a laundryw oman of
M arcelina (P. 97,CA Rollo) and the executrix in her w ill (the alternate
executrix was Juanita Macaraeg,mother of Oscar,M arilyn's husband),
filed w ith the Court of First Instance of Rizal,Pasig Branch 25, a petition
for the probate of M arcelina's alleged w ill. The case w as assigned to
Judge Reynaldo P. Honrado.
As there w as no opposition,Judge Honrado commissioned his deputy
clerk of court, Evangeline S. Yuipco, to hear the evidence. The
transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.
In an order dated M arch 31,1975,Judge Honrado appointed M arina
as administratrix. On the follow ing day, April 1, Judge Honrado issued
tw o orders directing theMerchants Banking Corporation and the Bank
of America t o allow Marina to wit hdraw t he sum of P10,000 from the
savings accounts of M arcelina S. Suroza and M arilyn Suroza and
requiring Corazon Castro, the custodian of the passbooks, to deliver
them to M arina.
Upon motion of M arina, Judge Honrado issued another order dated
April 11, 1975,instructing a deputy sheriff to eject the occupants of the
testatrix's house, among w hom w as Nenita V. Suroza, and to place
M arina in possession thereof.
That order alerted Nenita to the existence of the testamentary
proceeding for the settlement of Marcelina's estate. She and the other
occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them.
They alleged that the decedent'sson Agapito was the sole heir of the
deceased, that he has a daughter named Lilia, that Nenita w as
Agapito's guardian and that M arilyn w as not Agapito's daughter nor
the decedent's granddaughter (pp. 52-68, Record of testate case).
Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
In spite of the fact that Judge Honrado w as already apprised that
persons, other than M arilyn, w ere claiming M arcelina's estate, he
issued on April 23 an order probating her supposed w ill w herein
M arilyn w as the instituted heiress (pp. 74-77, Record).
On April 24,Nenita filed in the testate case an omnibus petition "to set
aside proceedings, admit opposition w ith counter-petition for
administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger toMarcelina,that
the w ill w as not duly executed and attested, that it w as procured by
means of undue influence employed by Marina and Marilyn and that
the thumbmarks of the testatrix w ere procured by fraud or trick.
Nenita further alleged that the institution of M arilyn as heir is void
because of the preterition of Agapito and that M arina w as not
qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of M arcelina, w ho sw ore that t he alleged will was
falsified (p. 109, Record).
Not content w ith her motion to set asidethe ejectment order (filed on
April 18) and her omnibus motion to set aside the proceedings (filed
on April 24), Nenita filed the next day, April 25, an opposition to the
probate of the w ill and a counter-petition for letters of administration.
In that opposition, Nenita assailed the due execution of the w ill and
stated the names and addresses of M arcelina's intestate heirs, her
nieces and nephew s (pp. 113-121,Record). Nenita w as not aw are of
the decree of probate dated April 23, 1975.
To that opposition w as attached an affidavit of Dominga Salvador
Teodocio, M arcelina's niece, w ho sw ore that M arcelina never
executed a w in (pp. 124-125, Record).
M arina in her answ er to Nenita's motion to set aside the proceedings
admitted that Marilyn was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and t hat Agapitowas not
Marcelina's son but merely an anak-anakan w ho w as not legally
adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-
petition for the issuance of letters of administration because of the
non-appearance of her counsel at the hearing. She moved for the
reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all
pending incidents, Nenita V. Suroza reiterated her contention that the
alleged w ill is void because M arcelina did not appear before the
notary and because it is w ritten in English w hich is not know n to her
(pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various
incidents "raised" by Nenita (p. 284, Record).

64. 64
Instead of appealing from that order and the order probating the wig,
Nenita "filed a case to annul" the probate proceedings (p. 332,
Record). That case,Civil Case No. 24276,Suroza vs. Paje and Honrado
(p. 398,Record), w as also assigned to Judge Honrado.He dismissed it
in his order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting
that the executrix had delivered the estate to M arilyn, and that the
estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12,
1978, filed in this Court, Nenita charged Judge Honrado w ith having
probated the fraudulent will of M arcelina.The complainant reiterated
her contention that the testatrix was illiterate as shown by the fact that
she affixed her thumbmark to the w ill and that she did not know
English, the language in w hich the w in w as w ritten. (In the decree of
probate Judge Honrado did not make any finding that the w ill w as
w ritten in a language know n to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his know ledge
that the testatrix had a son named Agapito (the testatrix's supposed
sole compulsory and legal heir),w ho w as preteritedin the w ill, did not
take into account the consequences of such a preterition.
Nenita disclosed that she talked several times w ith Judge Honrado
and informed him that the testatrix did not know theexecutrix M arina
Paje, that the beneficiary's real name is M arilyn Sy and that she w as
not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having act ed corrupt ly in
allowing Marina and her cohorts to wit hdraw from various banks t he
deposit s Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court,
for not giving her access to the record of the probate case by
alleging that it w as useless for Nenita to oppose the probate since
Judge Honrado w ould not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos,the
case might be decided in her favor. Evangeline allegedly advised
Nenita to desist from claiming the properties of the testatrix because
she (Nenita) had no rights thereto and, should she persist, she might
lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically w ith the
allegations of the complaint. He merely pointed to the fact that
Nenita did not appeal from the decree of probate and that in a
motion dated July 6, 1976 she asked for a thirty day period w ithin
w hich to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked w ith
Nenita and that the latter did not mention Evangeline in her letter
dated September 11, 1978 to President M arcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline)
prevented Nenita from having access to the record of the
testamentary proceeding. Evangeline w as not the custodian of the
record. Evangeline " strongly, vehemently and flatly denied" Nenita's
charge that she (Evangeline) said that the sum of ten thousand pesos
w as needed in order that Nenita could get a favorable decision.
Evangeline also denied that she has any know ledge of Nenita's
pension from the Federal Government.
The 1978 complaint against JudgeHonorado was brought toattention
of this Court in the Court Administrator's memorandum of September
25, 1980. The case w asreferred toJustice Juan A. Sison of the Court of
Appeals for investigation,report and recommendation. He submitted
a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against
Judge Honrado a petition for certiorari and prohibition w herein she
prayed that the w ill,the decree of probateand all the proceedings in
the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, w ho
notarized the w ill. He sworethat the testatrix and t he t hree at t est ing
wit nesses did not appear before him and t hat he not arized t he will
"just t o accommodate a brot her lawyer on t he condit ion" t hat said
lawyer would bring t o t he notary t he t est at rix and t he wit nesses but
t he lawyer never complied wit h his commit ment .
The Court of Appeals dismissed the petition because Nenita's remedy
w as an appeal and her failure to do so did not entitle her to resort to
the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, M ay 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981
a motion to dismiss the administrative case for having allegedly
become moot and academic.
We hold that disciplinary action should be taken against respondent
judge for his improper disposition of the testate case w hich might
have resulted in a miscarriage of justice because the decedent's legal
heirs and not the instituted heiress in the void w in should have
inherited the decedent's estate.
A judge may be criminally liable or know ingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence
or ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of
first instance for serious misconduct or inefficiency ( Sec. 67, Judiciary
Law ). Misconduct implies malice or a w rongful intent,not a mere error
of judgment. "For serious misconduct to exist, there must be reliable
evidence show ing that the judicial acts complained of w ere corrupt
or inspired by an intention to violate the law , or w ere in persistent
disregard of w ell-known legal rules" (In re lmpeachment of Horrilleno,
43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and
carelessness. A judge w ould be inexcusably negligent if he failed to
observe in the performance of his duties that diligence,prudence and
circumspection w hich the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
107, 119).
In this case, respondent judge, on perusing the w ill and noting that it
w as w ritten in English and w as thumbmarked by an obviously illiterate
testatrix, could have readily perceived that the w ill is void.
In the opening paragraph of the w ill, it w as stated that English w as a
language "understood and know n" to the testatrix. But in its
concluding paragraph, it w as stated that the w ill w as read to the
testatrix "and translated into Filipino language". (p. 16, Record of
testate case). That could only mean that the w ill w as w ritten in a
language not know n to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of article 804 of the Civil Code
that every w ill must be executed in a language or dialect know n to
the testator.Thus,a w ill w ritten in English, w hich w as not know n to the
Igorot testator, is void and w as disallow ed (Acop vs. Piraso, 52 Phil.
660).
The hasty preparation of the will is shown in the attestation clause and
notarial acknow ledgment w here M arcelina Salvador Suroza is
repeatedly referred to as the "testator" instead of "testatrix".

65. 65
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the w ill but also
that there w as something w rong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her
supposed father w ho w as still alive.
Furthermore,after the hearing conducted by respondent deputy clerk
of court, respondent judge could have noticed that the notary w as
not presented as a w itness.
In spite of the absence of an opposition, respondent judge should
have personally conducted the hearing on the probate of the w ill so
that he could have ascertained w hether the will was validly executed.
Under the circumstances, w e find his negligence and dereliction of
duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of M arcelina
S. Suroza, a fine equivalent to his salary for one month is imposed on
respondent judge (his compulsory retirement falls on December 25,
1981).
The case against respondent Yuipco has become moot and
academic because she is no longer employed in the judiciary. Since
September 1, 1980 she has been assistant city fiscal of Surigao City.
She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
M atter No. 2044-CFI November 21, 1980, 101 SCRA 225).
SO ORDERED.