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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 who oppose the probate of a will to clearly establish that the decedent was not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the manner provided in his will 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 which 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 will of Paciencia Regala (Paciencia), to wit:

WHEREFORE, premises considered, finding the appeal to be impressed with 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 will of PACIENCIA REGALA.

SO ORDERED.5

Also assailed herein is the August 31, 2006 CA Resolution6 which denied the Motion for Reconsideration thereto.

Petitioners call us to reverse the CA’s assailed Decision and instead affirm the Decision of the RTC which disallowed the notarial will of Paciencia.

Factual Antecedents

Paciencia was a 78 year old spinster when she made her last will and testament entitled "Tauli Nang Bilin o Testamento Miss 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), was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the document is her last will 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 witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado (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 who acted as notary public.

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo R. Laxa (Lorenzo) and his wife 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 enumerated in 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. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who would 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 will 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 with respect to the fishpond situated at San Antonio, I likewise command to fulfill the wishes of D[ñ]a Nicomeda Regala in accordance with her testament as stated in my testament. x x x12

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencia’s nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as his own mother.13 Paciencia lived with Lorenzo’s family in Sasmuan, Pampanga and it was she who 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 with Lorenzo and his family until her death on January 4, 1996.

In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition14 with 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 allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin testified that she was one of the instrumental witnesses in the execution of the last will and testament of Paciencia on September 13, 1981.16 The Will was executed in her father’s (Judge Limpin) home office, in her presence and of two other witnesses, Francisco

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and Faustino.17 Dra. Limpin positively identified the Will and her signatures on all its four pages.18 She likewise 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 walk 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 following 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 Mangalindan, 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. Mateo (Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition24 contending that Paciencia’s Will was null and void because ownership 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 Lorenzo was 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 probate of Paciencia’s Will on the following grounds: the Will was not executed and attested to in accordance with the requirements of the law; that Paciencia was mentally incapable to make a Will at the time of its execution; that she was 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 was forged; that assuming the signature to be genuine, it was 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 while the latter’s claim as a co-owner of the properties subject of the Will has not yet been established.

Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin was 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 when the event took place. 31

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness 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 was 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 with his family and his aunt, Paciencia; in 1981 Paciencia went to the USA and lived with him and his family until her death in January 1996; the relationship between him and Paciencia was like that of a mother and child since Paciencia took care of him since birth and took him in as an adopted son; Paciencia was a spinster without children, and without brothers and sisters; at the time of Paciencia’s death, she did not suffer from any mental disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of Judge Limpin and was only given to him after Paciencia’s

death through Faustino; and he was already residing in the USA when the Will was executed.33 Lorenzo positively identified the signature of Paciencia in three different documents and in the Will itself and stated that he was familiar with 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 the Will as he was not in the Philippines when the same was 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 May 21, 2000.

For petitioners, Rosie testified that her mother and Paciencia were 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 wife and his children were 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 what that "something" was as same was placed inside an envelope.41 However, 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 went to the house of Antonio’s mother and brought with her the said envelope.43 Upon going home, however, the envelope was no longer with Paciencia.44 Rosie further testified that Paciencia was referred to as "magulyan" or "forgetful" because she would sometimes leave her wallet in the kitchen then start looking for it moments later.45 On cross examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her conclusion that Paciencia was "magulyan" was based on her personal assessment,46 and that it was Antonio who requested her to testify in court.47

In his direct examination, Antonio stated that Paciencia was 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 showed it to him along with another document on September 16, 1981.49 Antonio alleged that when the documents were shown to him, the same were still unsigned.50 According to him, Paciencia thought that the documents pertained to a lease of one of her rice lands,51 and it was he who explained that the documents were actually a special power of attorney to lease and sell her fishpond and other properties upon her departure for the USA, and a Will which would transfer her properties to Lorenzo and his family upon her death.52 Upon hearing this, Paciencia allegedly uttered the following words: "Why will I never [return], why will I sell all my properties?" Who is Lorenzo? Is he the only [son] of God? I have other relatives [who should] benefit from my properties. Why should I die already?"53 Thereafter, Antonio advised Paciencia not to sign the documents if she does not want to, to which the latter purportedly replied, "I know nothing about those, throw them away or it is up to you. The more I will not sign them."54 After which, Paciencia left the documents with Antonio. Antonio kept the unsigned documents

and eventually turned them over to Faustino on 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) disallows the notarized will dated September 13, 1981 of Paciencia Regala.

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SO ORDERED.57

The trial court gave considerable weight to the testimony of Rosie and concluded that at the time Paciencia signed the Will, she was 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 with the RTC’s conclusion that Paciencia was of unsound mind when 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 Moreover, the oppositors in the probate proceedings were not able to overcome the presumption that every person is of sound mind. Further, no concrete circumstances or events were given to prove the allegation that Paciencia was 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 way of Petition for Review on Certiorari ascribing upon the CA the following errors:

I.

THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE PROBATE OF PACIENCIA’S WILL DESPITE RESPONDENT’S UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING 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 MIND AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED63

The pivotal issue is whether the authenticity and due execution of the notarial Will was sufficiently established to warrant its allowance for probate.

Our Ruling

We deny the petition.

Faithful compliance with the formalities laid down by law is apparent from the face of the Will.

Courts are tasked to determine nothing more than 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, which states:

Rule 75

Production of Will. Allowance of Will Necessary.

Section 1. Allowance necessary. Conclusive as to execution. – No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law.65 These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:

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

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall 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 state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

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

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses 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 witnesses signed the Will in the presence of one another and that the witnesses 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 when she signed the same as well as the voluntary nature of said act.

The burden to prove that Paciencia was of unsound mind at the time of the execution of the will lies on the shoulders of the petitioners.

Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful so much so that it effectively stripped her of testamentary capacity. They likewise claimed in their Motion for Reconsideration66 filed with the CA that Paciencia was not only "magulyan" but was actually suffering from paranoia.67

We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally unsound so

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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:

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 wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will 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 otherwise, that would show that Paciencia was of unsound mind at the time of the execution of the Will. On the other hand, we find more worthy of credence Dra. Limpin’s testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpin’s house and voluntarily executed the Will. "The testimony of subscribing witnesses to a Will concerning the testator’s mental condition is entitled to great weight where they are truthful and intelligent."69 More importantly, a testator is presumed to be of sound mind at the time of the execution of the Will and the burden to prove otherwise 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 was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to be insane one month or less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial evidence was presented by them to prove the same, thereby warranting the CA’s finding that petitioners failed to discharge such burden.

Furthermore, we are convinced that Paciencia was aware 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] was aware of the nature of the document she executed. She specially requested that the customs of her faith be observed upon her death. She was well aware of how she acquired the properties from her parents and the properties she is bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution of the will and was 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 will.

An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the document that will distribute his/her earthly possessions upon his/her death. Petitioners claim that Paciencia was 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 was obtained through fraud or trickery. These are grounded on the alleged conversation between Paciencia and Antonio on September 16,

1981 wherein 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 own son and that love even extended to Lorenzo’s wife 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 nephews and nieces and treat them as their own children. Such is a prevalent and accepted cultural practice that has resulted in many family discords between those favored by the testamentary disposition of a testator and those who stand to benefit in case of intestacy.

In this case, evidence shows the acknowledged fact that Paciencia’s relationship with Lorenzo and his family is different from her relationship with petitioners. The very fact that she cared for and raised Lorenzo and lived with him both here and abroad, even if the latter was already married and already has children, highlights the special bond between them. This unquestioned relationship between 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 which, aside from being factual in nature, are not supported by concrete, substantial and credible evidence on record. It is worth 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 will is not [to be] denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, for even if a will has been duly executed in fact, whether x x x it will be probated would 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 was duly executed.

Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of Rule 76 of the Rules of Court was not complied with. It provides:

RULE 76

Allowance or Disallowance of Will

Section 11. Subscribing witnesses produced or accounted for where will contested. – If the will is contested, all the subscribing witnesses, and the notary in the case of wills 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 to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law.

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witnesses, and if the court deem it necessary, expert testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented in court since all but one witness, Francisco, are still living.

4

We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify before the court was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino had a heart attack, was already bedridden and could no longer talk and express himself due to brain damage. To prove this, said witness 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 well to note that at that point, despite ample opportunity, petitioners neither interposed any objections to the testimonies of said witnesses nor challenged the same on cross examination. We thus hold that for all intents and purposes, Lorenzo was able to satisfactorily account for the incapacity and failure of the said subscribing witness and of the notary public to testify in court. Because of this the probate of Paciencia’s Will may be allowed on the basis of Dra. Limpin’s testimony proving her sanity and the due execution of the Will, as well as on the proof of her handwriting. 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 allowed just because all the attesting witnesses declare in favor of its legalization; what is decisive is that the court is convinced by evidence before it, not necessarily from the attesting witnesses, although they must testify, that the will was or was not duly executed in the manner required by law."731âwphi1

Moreover, 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 will 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 to be before it that is controlling."74 "The very existence of [the Will] is in itself prima facie proof that the supposed [testatrix] has willed that [her] estate be 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 with Lorenzo’s established relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, 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 allowance 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 appellants. Jose Santiago 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 which was offered as the last will and testament of Pioquinto Paguio y Pizarro. The will 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 following the date of the execution of the will. The will was propounded by the executrix, Juliana Bagtas, widow 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 was not executed according to the formalities and requirements of the law touching wills, and further that the testator was not in the full of enjoyment and use of his mental faculties and was without the mental capacity necessary to execute a valid will.

The record shows 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 power of speech. Owing 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, however, and was able to write fairly well. Through the medium of signs he was able to indicate his wishes to his wife and to other members of his family.

At the time of the execution of the will there were present the four testamentary witnesses, Agustin Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Señor Marco, and one Florentino Ramos. Anacleto Paguio and the attorney have since died, and consequently their testimony was not available upon the trial of the case in the lower court. The other three testamentary witnesses and the witness Florentino Ramos testified as to the manner in which the will was executed. According to the uncontroverted testimony of these witnesses the will was executed in the following manner:

Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the disposition of his property, and these notes were in turn delivered to Señor Marco, who transcribed them and put them in form. The witnesses testify that the pieces of paper upon which the notes were written are delivered to attorney by the testator; that the attorney read them to the testator asking if they were his testamentary dispositions; that the testator assented each time with an affirmative movement of his head; that after the will as a whole had been thus written by the attorney, it was read in a loud voice in the presence of the testator and the witnesses; that Señor Marco gave the document to the testator; that the latter, after looking over it, signed it in the presence of the four subscribing witnesses; and that they in turn signed it in the presence of the testator and each other.

These are the facts of record with reference to the execution of the will and we are in perfect accord with the judgment of the lower court that the formalities of the Code of Civil Procedure have been fully complied with.

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 will. Upon this point considerable evidence was adduced at the trial. One of the attesting witnesses testified that at the time of the execution of the will the testator was in his right mind, and that although he was seriously ill, he indicated by movements of his head what his wishes were. Another of the attesting witnesses stated that he was 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 witnesses) was not a physician. The other subscribing witness, Pedro Paguio, testified in the lower court as a witness for the opponents. He was unable to state whether or not the will was the wish of the testator. The only reasons he gave for his statement were the infirmity and advanced age of the testator and the fact that he was unable to speak. The witness stated that the testator signed the will, and he verified his own signature as a subscribing witness.

Florentino Ramos, although not an attesting witness, stated that he was present when the will was executed and his testimony was cumulative in corroboration of the manner in which the will was executed and as to the fact that the testator signed the will. This witness also stated that he had frequently transacted matters of business for the decedent and had written letters and made inventories of his property at his request, and that immediately

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before and after the execution of the will he had performed offices of his character. He stated that the decedent was able to communicate his thoughts by writing. The testimony of this witness clearly indicates the presence of mental capacity on the part of the testator. Among other witnesses for the opponents were two physician, Doctor Basa and Doctor Viado. Doctor Basa testified that he had attended the testator some four or five years prior to his death and that the latter had suffered from a cerebral congestion from which the paralysis resulted. The following question was propounded to Doctor Basa:

Q.       Referring to mental condition in which you found him the last time you attended him, do you think he was in his right mind?

A.       I can not say exactly whether he was in his right mind, but I noted some mental disorder, because when I spoke to him he did not answer me.

Doctor Basa testified at more length, but the substance of his testimony is that the testator had suffered a paralysis and that he had noticed some mental disorder. He does not say that the testator was not in his right mind at the time of the execution of the will, nor does he give it at his opinion that he was without the necessary mental capacity to make a valid will. He did not state in what way this mental disorder had manifested itself other than that he had noticed that the testator did not reply to him on one occasion when he visited him.

Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to a hypothetical question as to what be the mental condition of a person who was 79 years old and who had suffered from a malady such as the testator was supposed to have had according to the testimony of Doctor Basa, whose testimony Doctor Viado had heard. He replied and discussed at some length the symptoms and consequences of the decease from which the testator had suffered; he read in support of his statements from a work by a German Physician, Dr. Herman Eichost. In answer, however, to a direct question, he stated that he would be unable to certify to the mental condition of a person who was suffering from such a disease.

We do not think that the testimony of these two physicians in any way 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 with paralysis, in consequence of which 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. There can be no doubt that the testator's infirmities were of a very serious character, and it is quite evident that his mind was not as active as it had been in the earlier years of his life. However, we can not include from this that he wanting in the necessary mental capacity to dispose of his property by will.

The courts have been called upon frequently to nullify wills executed under such circumstances, but the weight of the authority is in support if the principle that it is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will 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 was 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 will to prove the lack of testamentary capacity. (In the matter of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the will 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 well 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 we think they have failed to do. There are many cases and authorities which we might cite to show that the courts have repeatedly held that mere weakness of mind and body, induced by age and disease do not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard, few indeed would be the number of wills 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 lowest conditions of diseased mentality which are denominated as insanity and idiocy.

The right to dispose of property by testamentary disposition is as sacred as any other right which 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 with a variety of mental weaknesses, disorders, or peculiarities and still be capable in law of executing a valid will. (See the numerous cases there cited in support of this statement.)

The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted with approval inCampbell vs. Campbell (130 Ill., 466), as follows:

To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken, unimpaired, or unshattered by disease or otherwise, 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 was the degree of memory possessed by the testator, as, had he a disposing memory? Was he able to remember the property he was about to bequeath, the manner of disturbing it, and the objects of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will. (See authorities there cited.)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed man. About seven years prior to his death he suffered a paralytic stroke and from that time his mind and memory were mush enfeebled. He became very dull of hearing and in consequence of the shrinking of his brain he was affected with senile cataract causing total blindness. He became filthy and obscene in his habits, although formerly he was 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 will affect the capacity to make a will, 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 will, and his physical and mental weakness and defective memory were in striking contrast

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with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful or recent events, especially of names, and repeated questions in conversation; and sometimes, when aroused for sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence, are of the opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression.

In the above case the will was sustained. In the case at bar we might draw the same contrast as was 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 who knew him in his earlier days to entertain doubts as to his mental capacity to make a will, yet we think that the statements of the witnesses to the execution of the will 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 will it does not appear that his conduct was irrational in any particular. He seems to have comprehended clearly what the nature of the business was in which he was engaged. The evidence show that the writing and execution of the will occupied a period several hours and that the testator was present during all this time, taking an active part in all the proceedings. Again, the will 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 will should be and the same is hereby affirmed, with 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 appellants. 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 will and testament of Domingo Ubag, deceased. The instrument was propounded by his widow, Catalina Bugnao, the sole beneficiary thereunder, and probate was contested by the appellants, who are brothers and sisters of the deceased, and who would be entitled to share in the distribution of his estate, if probate were 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 will in the manner and form prescribed in section 618 of the Code of Civil Procedure; and that at the time when it is alleged that the will was executed, Ubag was not of sound mind and memory, and was physically and mentally incapable of making a will.

The instrument propounded for probate purports to be the last will and testament of Domingo Ubag, signed by him in the presence of three subscribing and attesting witnesses, and appears upon its face to have been duly executed in accordance with the provisions of the Code of Civil Procedure touching the making of wills.

Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mariño, testified in support of the will, the latter being the justice of the peace of the municipality wherein it was executed; and their testimony was corroborated in all important details by the testimony of the proponent herself, who was present when the will was made. It does not appear from the record why the third subscribing witness was not called; but since counsel for the contestants makes no comment upon his absence, we think it may safely be inferred that there was some good and sufficient reason therefore. In passing, however, it may be well to observe that, when because of death, sickness, absence, or for any other reason, it is not practicable to call to the witness stand all the subscribing witnesses to a will offered for probate, the reason for the absence of any of these witnesses should be made to appear of record, and this especially in cases such as the one at bar, wherein there is a contests.

The subscribing witnesses gave full and detailed accounts of the execution of the will and swore that the testator, at the time of its execution, was of sound mind and memory, and in their presence attached his signature thereto as his last will and testament, and that in his presence and in the presence of each other, they as well as the third subscribing witness. Despite the searching and exhaustive cross-examination to which they were subjected, counsel for appellants could point to no flaw in their testimony save an alleged contradiction as to a single incident which occurred at or about the time when the will was executed a contradiction, however, which we think is more apparent than real. One of the witnesses stated that the deceased sat up in bed and signed his name to the will, and that after its execution food was given him by his wife; while the other testified that he was assisted into a sitting position, and was given something to eat before he signed his name. We think the evidence discloses that his wife aided the sick man to sit up in bed at the time when he signed his name to the instrument, and that he was given nourishment while he was in that position, but it is not quite clear whether this was immediately before or after, or both before and after he attached his signature to the will. To say that the sick man sat up or raised himself up in bed is not necessarily in conflict with 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 will, and that one witness might remember the former occasion and the other witness might recall the latter, although neither witness could recall both. But, however this may have been, we do not think that a slight lapse of memory on the part of one or the other witness, as to the precise details of an unimportant incident, to which 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 witnesses to a will as to the circumstances under which it was executed, or even a single contradiction as to a particular incident, where the incident was of such a nature that the intention of any person who was present must have been directed to it, and where 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 witnesses could not possibly have been present, together, at the time when it is alleged the will was executed; but the apparent contradictions in the testimony of the witnesses 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 whole gives such clear, explicit, and detailed account of all that occurred, and is so convincing and altogether satisfactory that we have no doubt that the trial judge who heard them testify properly accepted their testimony as worthy of entire confidence and belief.

The contestants put upon the stand four witnesses for the purpose of proving that at the time and on the occasion when the subscribing witnesses testified that the will was executed, these witnesses were not in the house with the testator, and that the alleged testator was at that time in such physical and mental condition that it was impossible for him to have made a will. Two of these witnesses, 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 which the will is alleged to have been made, this being the time at which the witnesses in support of the

7

will testified that it was executed. Of the other witnesses, one is a contestant of the will, Macario Ubag, a brother of the testator, and the other, Canuto Sinoy, his close relative. These witnesses swore that they were in the house of the deceased, where he was lying ill, at or about the time when it is alleged that the will was executed, and that at that time the alleged subscribing witnesses were not in the house, and the alleged testator was so sick that he was unable to speak, to understand, or to make himself understood, and that he was wholly incapacitated to make a will. But the testimony of Macario Ubag is in our opinion wholly unworthy 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 swear to any fact which he imagined would aid in securing his object. An admittedly genuine and authentic signature of the deceased was introduced in evidence for comparison with the signature attached to the will, but this witness in his anxiety to deny the genuineness of the signature of his brother to the will, promptly and positively swore that the admittedly genuine signature was not his brother's signature, and only corrected his erroneous statement in response to a somewhat suggestive question by his attorney which evidently gave him to understand that his former answer was likely to prejudice his own cause. On cross-examination, he was forced to admit that because his brother and his brother's wife (in those favor the will 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 which 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 witness could be accepted as true, it would be a remarkable coincidence indeed, that the subscribing witnesses to the alleged will should have falsely pretended to have joined in its execution on the very day, and at the precise hour, when this interested witness happened to pay his only visit to his brother during his last illness, so that the testimony of this witness would furnish conclusive evidence in support of the allegations of the contestants that the alleged will was not executed at the time and place or in the manner and form alleged by the subscribing witnesses. We do not think that the testimony of this witness nor any of the other witnesses 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 will, or as to the manner and from in which it was executed.

In the course of the proceedings, an admittedly genuine signature of the deceased was introduced in evidence, and upon a comparison of this signature with the signature attached to the instrument in question, we are wholly of the opinion of the trial judge, who held in this connection as follows:

No expert evidence has been adduced with regard to these two signatures, and the presiding judge of this court does not claim to possess any special expert knowledge 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 which appears in the document offered for authentication discloses that at the time of writing the subscriber was more deliberate in his movements, but two facts must be acknowledge: First, that the testator was seriously ill, and the other fact, that for some reason which is not stated the testator was unable to see, and was a person who was not in the habit of signing his name every day.

These facts should sufficiently explain whatever difference may exist between the two signatures, but the court finds that the principal strokes in the two signatures are identical.

That the testator was mentally capable of making the will is in our opinion fully established by the testimony of the subscribing witnesses who swore positively that, at the time of its execution, he was of sound mind and memory. It is true that their testimony

discloses the fact that he was at that time extremely ill, in an advanced stage of tuberculosis complicated with severe intermittent attacks of asthma; that he was 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 which he was subject he could not speak; but all this evidence of physical weakness in no wise establishes his mental incapacity or a lack of testamentary capacity, and indeed the evidence of the subscribing witnesses as to the aid furnished them by the testator in preparing the will, 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 was able to give to the person who wrote the will 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 will leaves all the property of the testator to his widow, and wholly 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 would make so unnatural and unreasonable a will, they contend that this fact indirectly corroborates their contention that the deceased never did in fact execute the will. But when 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, who declined to have any relations with the testator because he and his wife were adherents of the Aglipayano Church; and that this quarrel was so bitter that none of his brothers or sisters, although some of them lived in the vicinity, were present at the time of his death or attended his funeral; we think the fact that the deceased desired to leave and did leave all of his property to his widow and made no provision for his brothers and sisters, who themselves were grown men and women, by no means tends to disclose either an unsound mind or the presence of undue influence on the part of his wife, or in any wise corroborates contestants' allegation that the will never was executed.

It has been said that "the difficulty of stating standards or tests by which to determine the degree of mental capacity of a particular person has been everywhere recognized, and grows 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 down any definite rule in respect to the exact amount of mental capacity requisite for the making of a valid will, without appreciating the difficulty of the undertaking" (Trish vs. Newell, 62 III., 196, 203).

Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degree of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity, and while on one hand it has been held that "mere weakness of mind, or partial imbecility from the disease of body, or from age, will not render a person incapable of making a will, a weak or feeble minded person may make a valid will, provided he has understanding memory sufficient to enable him to know what he is about, and how or to whom 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 otherwise" (Sloan vs. Maxwell, 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 would be the wills confirmed, if this is correct. Pain, sickness, debility of body, from age or infirmity, would, according to its violence or duration, in a greater or less degree, break in upon, weaken, 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, whether it arises from extreme old age from disease, or great bodily infirmities or

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suffering, or from all these combined, may render the testator incapable of making a valid will, providing such weakness really disqualifies her from knowing or appreciating the nature, effects, or consequences of the act she is engaged in" (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).

But for the purposes of this decision it is not necessary for us to attempt to lay down a definition of testamentary capacity which will cover all possible cases which may present themselves, because, as will be seen from what has already been said, the testator was, at the time of making the instrument under consideration, endowed with all the elements of mental capacity set out in the following definition of testamentary capacity which has been frequently announced in courts of last resort in England and the United States; and while 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 elements in sufficient to establish the existence of testamentary capacity.

Testamentary capacity is the capacity to comprehend the nature of the transaction which the testator is engaged at the time, to recollect the property to be disposed of and the person who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his 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 will and testament of the deceased; that it was made in strict conformity with the requisites prescribed by law; and that, at the time of its execution, the deceased was of sound mind and memory, and executed the instrument of his own free will and accord.

The order probating the will should be land is hereby affirmed, with 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.

Araneta & Zaragoza for appellant.Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.

MALCOLM, J.:

This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez.

Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of the deceased on the grounds: (1) That the testator lacked mental capacity because at the time of senile dementia and was under guardianship; (2) that undue influence had been exercised by the persons benefited in the document in conjunction with others who 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

was rendered denying the legalization of the will. 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 will Exhibit A, and the copies thereof there already existed a final judgment as to his mental condition wherein he was declared physically and mentally incapacitated to take care of himself and manage his estate shows in a clear and conclusive manner that at the time of signing the supposed will of Tomas Rodriguez did not possess such mental capacity as was necessary to be able him to dispose of his property by the supposed will.

But even supposing as contended by petitioner's counsel that Tomas Rodriguez was at the time of execution of the will, competent to make a will, the court is of the opinion that the will cannot be probated for it appears from the declaration of the attesting witness Elias Bonoan that when the legatee Luz Lopez presented the supposed will, Exhibit A, to Tomas Rodriguez, she told him to sign said Exhibit A because it was a document relative to the complaint against one Castito, which Exhibit 4, then pending in the justice of the peace court, and for the further reason that said Tomas Rodriguez was 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 was an old man 76 years of age, and was sick in the hospital when his signature to the supposed will was obtained. All of this shows that the signature of Tomas Rodriguez appearing in the will was obtained through fraudulent and deceitful representations of those who were 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 will, 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 will were obtained through fraudulent and deceitful representations, made by persons interested in the executions of said will.

The record is voluminous — close to two thousand typewritten pages, with a varied assortment of exhibits. One brief contains two 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 — will be taken up separately and in order. An attempt will 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. TESTAMENTARY CAPACITY

A. Facts. — For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which 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, Margarita Lopez petitioned the Court of First Instance of Manila to name a guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed by Attorney Gregorio Araneta acting on behalf of Tomas

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Rodriguez for the reason that while Rodriguez was far from strong on account of his years, he was yet capable of looking after his property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the questions propounded intelligently (Exhibit 5-g). A trial had at which considerable oral testimony for the petitioner was received. At the conclusion of the hearing, an order was 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 which occurred in connection with the guardianship proceedings, it may as well 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 will let the witness tell in his own words what happened on the occasions in question:

I found him lying down on his bed. . . . And when it (the cleaning of his head) was finished, I again entered his room, and told him that I had an order of the court which I wanted to read as I did read to him, but after reading the order he asked me what 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 what 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 was taken to the Philippine General Hospital on November 27, 1923. There he was to remain sick in bed until his death. The physician in charge during this period was Dr. Elias Domingo. In the clinical case record of the hospital under the topic "Diagnosis (in full)," we find the following "Senility; Hernia inguinal; Decubitus" (Exhibit 8).

On the door of the patient's room was placed a placard reading — "No visitors, except father, mother, sisters, and brothers." (Testimony of head nurse physician, there were permitted to visit the patient only the following named persons: Santiago Lopez, Manuel 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 Margarita 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 when he was visiting Tomas Rodriguez in the hospital , Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F. Lopez, who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the purpose of securing him to prepare the will. In accordance with this request, Judge Mina conferred with Tomas Rodriguez in the hospital in December 16th and December 29th. He ascertained the wishes of Rodriguez and wrote up a testament in rough draft. The attorney expected to return to the hospital on December 31st to have the will executed but was unable to do so on account of having to make a trip to the provinces. Accordingly, the papers were left with Santiago Lopez.

In corroboration of the above statements, we transcribe a portion of Judge Mina's testimony which has not been challenged in any way:

ARANETA: Q. Will you please tell your motive for holding an interview with Vicente Lopez?

MAXIMINO MINA: 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 whether or not D. Tomas could make his will, having announced his desire to do so. I told him that it seemed

that we were not called upon to decide or give an opinion as to whether or not he can make a will; it is a question to be submitted to the court, but as he had announced his desire, it is our duty to comply with it. Then he requested me to do what was necessary to comply with his wishes: I told him I was to see him; then we agreed that on the morning next to the following 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 will?

OCAMPO: Leading.

ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you saw him there? — A. He told me that.

Q. Please tell us what conversation you had with D. Tomas Rodriguez? — A. The conversation I had with him that evening — according to my best recollection — I cannot tell the exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, ' Good evening,' How are you,' ' How do you do? Very well, just came here in the name of D. Vicente Lopez why 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.' Mina, 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 work in the office of Mr. Chicote. That Mr. 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 want to make a will, when and to whom do you want to leave your fortune? Then he said, To whom else? To my cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want 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? was his answer. Well, do you want to specify said properties, to say what 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 won't you give property to other persons? answers, I think, something, they will know it. After being asked, Whom do you think, would you want to be your executor? After hesitating a little, This Torres, Manuel or Santiago Lopez also. Then I asked him, What is your religion? He answered, 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, what did you have anything more to say as to your testamentary dispositions? No, he answered. 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 want it done? Later on, I will 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.

10

Q. When? — A. On December 29, 1923, also in the evening.

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 with the few cases I had in the provinces particularly in Tayabas, which compelled me to be absent from Manila until January 1st at least, for I might be there for several days, so I went to the General Hospital of my own accord — since I had not received any messages from them — with a rough draft which I had prepared in accordance with what 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 will in accordance with your former statements to me in order to submit it to you. Do you want to read it?' 'Please do me the favor of reading it. I read it slowly to him in order that he could understand it . After reading, Is it all right, that is the way,— few words — you see it takes only a few minutes; now I can execute the will. We can do it takes only a few minutes.' In view of that statement of his, I called his attention, ' But we don't have witnesses, D. Tomas.' I looked out through the door to see if I could call some witnesses but it was late then and it was thought better to do it on the 31st of December. Then we talked about other things, and he again asked. Where were 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 Mount Carmel' because we also talked about the fiesta of San Sebastian. I again reminded him that we could not do it because the witnesses were 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 whom did you make the arrangement to make the will on the evening of the 31st of December — you said that it was agreed that the will be executed on the evening of December 31st? — A. With Santiago Lopez and Don Tomas.

Q. Was the will executed on the 31st of December? — A. What happened is this: In view of that agreement, I fixed up the draft which I had, dating it the 31st of December, putting everything in order; we agreed that Santiago would meet me on 31st day between five and six in the evening or a little before, but it happened that before the 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 were lacking. In view of this and bearing always in mind that on the following 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 words good Christmas present? — A. They are given a Christmas present when Christmas comes or on the occasion of Christmas.

Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of the will which 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 witness stated, the will which was prepared by him is identical with that signed by the testator and the attesting witnesses with the single exception of the change of the date from December 31, 1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and simple in terminology.

For purposes of record, we copy the will as here translated into English:

ONLY PAGE

In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age and resident of the City of Manila, Philippine Islands, do freely and voluntarily make this my will and testament in the Spanish language which I know, with the following clauses:

First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in accordance with 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. Manuel Torres and D. Santiago Lopez as my prosecutors.

In witness whereof I sign this typewritten will, consisting of one single page, in the presence of the witness who sign below.

(Sgd.) TOMAS RODRIGUEZ

(Left marginal signatures:) TOMAS 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 will, consisting of one single typewritten page, having signed at the bottom of the will in the presence of us who saw as witnesses the execution of this will, we signed at the bottom thereof in the presence of the testator and of each other.

(Sgd.) V. L. LEGARDAELIAS 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 witness; 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 Mrs. Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the background.

As to what actually happened, we have in the record two absolutely contradictory accounts. One emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all remaining persons who were there.

Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to formal matters, such as the identification of the signatures to the will .On cross-examination, he rather started the proponents of the will 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 will to the testator. Doctor Bonoan's testimony along this line is as follows:

QUESTIONS.

11

MARCAIDA : Q. Why were you a witness to the will of Tomas Rodriguez?

Araneta: I object to the question as being immaterial.

Court: Objection overruled.

Dr. Bonoan: A. Because I was called up by Mrs. Luz by telephone telling me to be in the hospital at 3 o'clock sharp in the afternoon of the 3d of January.

Q. Who is that Luz whom 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 with 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, when the will of Tomas Rodriguez was signed, did Luz Lopez talk to you? A. Yes, sir.

Q. How many days approximately before was it? — A. I cannot tell the day, it was approximately one week before, — on that occasion when I was called up by her about the deceased Vicente Lopez.

Q. What did she tell you when you went to the house of Vicente Lopez one week approximately before signing the will? - A. That Tomas Rodriguez would make a will.

Q. Don't you know where the will of Tomas Rodriguez was made? - A. In the General Hospital.

Q. Was that document written in the hospital? — A. I have not seen it.

Q. When you went to the General Hospital on January 3, 1924, who were the persons you met in the room where the patients was ? — A. I met one of the nieces of the deceased Tomas Rodriguez, Mrs. 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, who came? — A. Antonio de Asis, Doctor Herrera, later on Doctor Calderon arrived with Doctor Elias Domingo and lastly Santiago Lopez came and then Mr. Legarda.

Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital in what position did you find him?— A. He was lying down.

Q. Did you greet D. Tomas Rodriguez? A. I did.

Q. Did D. Tomas Rodriguez answer you? — A. Dna. Nena immediately answered in advance and introduced me to him saying that I was the brother of his godson.

Q. Did other persons whom you have mentioned, viz, Messrs. 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 was D. Tomas told when he signed the will.? — A. To sign it.

Q. Who told D. Tomas to sign the will? — A. Luz Lopez.

Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the will? — A. She told him to sign the document; the deceased Tomas Rodriguez before signing the document asked what that was which he was to sign.

Q. What did anybody answer to that 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 answered, 'You sign this document, uncle Tomas, because this is about the complaint against Castito.

Q. Then Tomas Rodriguez signed the will? — A. Yes, sir.

Q. Who had the will? Who was holding it? — A. Mr. Vicente Legarda had it his own hands.

Q. Was the will signed by Tomas Rodriguez lying down, on his feet or seated? — A. Lying down.

Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the will, did they read it to him? — A. Nobody read the will to him.

Q. Did not D. Tomas read the will? — A. I have not seen it.

Q. Were you present? — A. Yes, sir. ( S. R. p. 8)

As it would be quite impracticable to transcribe the testimony of all the others who attended the making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading role, tell what 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 same document? — A. First that is to say the first document he presented to me was a rough draft, a tentative will, and it was dated December 31st, and I called his attention to the fact that the date was not December 31, 1923, and that it was necessary to change the date to January 3, 1924, and it was done.

Q. And it was then, was it not when Exhibits A, A-1, and A-2 were written? — A. Yes, sir.

12

Q. Do you any know where it was written? — A. In the General Hospital.

Q. Did any time elapse from your making the suggestion that the document which you delivered to Santiago Lopez be written until those three Exhibits A, A-1, and A-2 were presented to you? — A. About nine or ten minutes approximately.

Q. The time to make it clean? — A. Yes, sir.

Q. Where were you during that time? — A. In the room of D. Tomas Rodriguez.

Q. Were you talking with him during that time. — A. Yes, sir.

Q. About what things were you talking with him? — A. He was asking me about my health, that of my family how my family was my girl, whether we were living in Pasay, he asked me about the steamer Ildefonso, he said that it was a pity that it had been lost because he knew that my father-in-law was the owner 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 two copies of the will signed by D. Tomas Rodriguez were written clean, will you please tell what happened? — A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and told him: Don Tomas, here is this will which is ready for your signature.

Q. What did D. Tomas do when you said that his will you were showing to him was ready? — A. The first thing he asked was: the witnesses? Then I called the witnesses — Gentlemen, please come forward, and they came forward, 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 was not sufficiently clear, he said: 'There is no more light;' then somebody came forward bringing an electric lamp.

Q. What did D. Tomas do when that electric lamp was 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 was tired, I suggested that it be read to him and he stopped reading and I read the will 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 wish and my will. Don't you have any pen?' I asked a pen of those who were there and handed it to D. Tomas.

Q. Is it true that Tomas Rodriguez asked at that time 'What is that which I am going to sign?' and Luz Lopez told him: 'It is in connection with the complaint against Castito?' — A. It is not true, no, sir.

Q. During the signing of the will, 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 own accord? — A. Yes, sir.

Q. Did nobody tell him to sign? — A. Nobody.

Q. What happened after the signing of the will by Tomas Rodriguez? — A. I called the witnesses and we signed in the presence of each other and of Tomas Rodriguez.

Q. After the signing of the will, did you have any conversation with Tomas Rodriguez? — A. Doctor Calderon asked D. Tomas Rodriguez some questions.

Q. Do you remember the questions and the conversation held between Doctor Calderon and D. Tomas after the signing of the will? — A. I remember that afterwards 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 answered: That loan at 18 per cent is illegal, it is usury. (S. R., p. 38.)

In addition to the statements under oath made by Mr. 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 Medicine in the University of the Philippines, testified:

Mr. ARANETA: Q. What have you seen or heard with regard to the execution of the will?

Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas Rodriguez. D. Tomas asked for his eyeglass, wanted to read and it was extremely hard for him to do so. Mr. Legarda offered to read the will, it was read to him and he heard that in that will Vicente Lopez and Luz Lopez were appointed heirs; we also saw him sign that will, and he signed not only the original but also the other copies of the will and we also saw how the witnesses signed the will; we heard that D. Tomas asked for light at that moment; he heard that D. Tomas asked for light at that moment; he was at that time in a perfect mental state. And we remained there after the will was executed. I asked him, 'How do you feel, how are you? Well I am well, ' he answered. ' 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 answered, 'That is usury.; When a man answers in that way, ' That is usury it shows that he is all right.

Q. Were you present when Mr. Legarda handed the will to him? — A. Yes, sir.

Q. Did any person there tell Don Tomas that was a complaint to be filed against one Castito? — A. No, sir, I have not heard anything of the kind.

Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what that was which he was to sign and that Luz Lopez answered, 'That is but a complaint in connection with Castito.' Is that true? — A. I have not heard anything of the kind.

Q. Had anybody told that to the deceased, would you 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 witnesses were there; I don't remember that Luz Lopez was there.

Q. Had anybody told that to the deceased, would you have heard it? — A. Yes, sir.

13

Q. Do you remember whether he was given a pen or he himself asked for it? — A. I don't know; it is a detail which I don't remember well; so that whether or not he was given a pen or he himself asked for it, I do not remember.

Q. But did he sign without hesitation ? — A. With no hesitation.

Q. Did he sign without anybody having indicated to him where he was to sign? — A. Yes, without anybody having indicated it to him.

Q. Do you know whether 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 was 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 witnesses of the highest standing in the community. The only explanation we can offer relative to the testimony of Doctor Bonoan is that possibly he may have arrived earlier than the others with 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 however no possible explanation of the statement of Doctor Bonoan to the effect that no one read the will to Rodriguez when at least five other persons recollect that Vicente Legarda read it to him and recall the details connected with the reading.

There is one curious occurrence which transpired shortly after the making of the will which 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 these present:

That I, Luz Lopez de Bueno in consideration of the services which at my instance were and will when necessary be rendered by Dr. Elias Bonoan in connection with the execution of the will of my uncle, Don Tomas Rodriguez and the due probate thereof, do hereby agree to pay said doctor, by way 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 which in said will is given to me.

In witness whereof, I sign this document which was freely and spontaneously executed by me in Manila, this January 7, 1923.

(Sgd.) LUZ LOPEZ DE BUENO (Exhibit 1)

There is a sharp conflict of testimony, as is natural between 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 will not affect the decision one way 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 away.

Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924. Not even prior to his demise the two 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 Mental Diseases in the University of the Philippines, as attending physician; as associated with 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 Manila; and had arranged to have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses. The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in the University of the Philippines, and Dr. Samuel Tietze, with 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 well-known physician of the City of Manila. Skilled lawyers were available to aid and abet the medical experts. Out of such situations, do will contests arise.

An examination of the certificates made by the two sets of physicians and of their testimony shows 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 views of these distinguished gentlemen who honestly arrived at definite but contradictory conclusions. The best that we 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 the will was executed. All of them, as we have noticed were, present at the signing of the will to note the reactions of the testator. On the same day that the will was accomplished, the three doctors signed the following certificate:

The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the practice of their profession do hereby certify:

That they have jointly examined Mr. 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 the result of the different tests to which this patient was submitted is that his intellectual faculties are sound, except that his memory is weak, which is almost a loss for recent facts, or events which have recently occurred, due to his physical condition and old age.

They also certify that they were present at the time he signed his will on January 3, 1924, at 1:25 p.m. and have found his mental state in the same condition as was found by the undersigned in their former examination and that in executing said will the testator and full knowledge of the contents thereof.

In testimony whereof, we sign in Manila this January 3, 1924.

(Sgd.) FLORENTINO HERRERA Tuberias 1264 Quiapo

(Sgd.) Dr. FERNANDO CALDERONGeneral HospitalManila

14

(Sgd.) Dr. ELIAS DOMINGO613 RemediosMalate

(Exhibit E in relation with Exhibits C and D.)

Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality of Tomas Rodriguez What follows is possibly the most significant of the doctor's statements:

Dr. CALDERON testifying after interruption:

A. I was 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 Messrs. Elias Domingo and Florentino Herrera because had I found that Tomas Rodriguez and Florentino Herrera because had I found that Tomas Rodriguez was really insane, I should have ordered his transfer to the San Lazaro Hospital or to other places, and would not have left him in the General Hospital. Pursuant to my desire, I saw Tomas Rodriguez in his room alone twice to have interviews with his, he begging a person whom I knew since several years ago; at the end of the interviews I became convinced that there was nothing wrong with him; I had not seen anything indicating that he was insane and for this reason I accepted the request of my companions and joined them; we 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 with Messrs. 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 which he have been together besides my particular visits.

Q. Will you place state the result of the observation you made alone before those made by the three of you jointly? — A. I asked Tomas Rodriguez some questions when I went alone there, I asked him were he was living formerly and he well remembered that in Intramuros, Calle Real; I asked him whether he remembered one Calderon who was 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 two daughters, Matilde 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 was his tenant of the upper story, that is that he was 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, who he said of course that he knew; he remembered him because he was his companion and was a successful attorney. This was when I had an interview with 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 we began to speak of something which I don't remember now. In fine, we 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 went there, no stenographic notes were taken of what happened there.

Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to the patient? — A. Yes, sir.

Q. From the result f the conversation you had with Tomas Rodriguez on those two visits what is your opinion as to his mental capacity? — A. That he was sick; that he was weak, but I have found absolutely no incoherence in his

ideas; he answered my questions well and as I was observing him there were times when he did not remember things of the present — because this must be admitted — but on the other hand he had a wonderful memory of past events; in talking with him, you would not notice in the conversation any alteration in his mind nor that man had lost the reasoning power or logic.

Q. Did you notice any loss of memory, or that his memory was weakening 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 what had been talked of.

x x x           x x x           x x x

Q. Do you remember the conversation you had with him for the first time when 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 will. But why don't you decide? There is no hurry there is time to make a will, 'he said. Then in case you decide to make a will, to whom are you going to leave your property? Don't you have any relatives? I have a relative, Vicente Lopez, my first cousin, and Margarita Lopez my first cousin they are brothers.' In that case, to whom, do you want 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 would you not give anything to Margarita Lopez? No because her husband is very bad, 'to use his exact language is very bad.'

Q. Did you talk with him on that occasion about his estate? — A. Yes, sir, he told me that he had three estates, — one on Calle Magallanes, another on Calle Cabildo and the third on Calle Juan Luna and besides he had money in the Monte de Piedad and Hogar Filipino.

x x x           x x x           x x x

Q. From the question made by you and the answers given by Mr. Tomas Rodriguez on that occasion, what is your opinion as to his mental capacity? — A. The following: That the memory of Tomas Rodriguez somewhat failed as to things of the present, but is all right with regard to matters or facts of the past; that his ideas were incoherent; that the thought with logic, argued even with power and generally in some of the interviews I have arrived at the conclusion that Tomas Rodriguez had an initiative of his own, did not need that anybody should make him any suggestion because he answered in such a way that if you permit me now to show you my stenographic notes, they will prove to you conclusively that he had an initiative of his own and had no need of anybody making him any question. (S. R. p. 72.)

Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time that Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed sufficient mentality to make a will. Among other things, Doctor Domingo testified:

ARANETA: Q. Have you known D. Tomas Rodriguez?

Dr. DOMINGO: A. Yes, sir.

Q. Did you attend D. Tomas Rodriguez as physician? — A. Yes, sir.

15

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 was the object of your visits or attendance during the months of October and November? — A. It was 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 was very careful when throwing the ash of the cigarette, seeing to it that it did not fall on the blankets; he also was 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 within the place although with certain difficulty. On two 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 answered with a coherence and in a relevant manner, although sometimes he showed eagerness and certain delay. I based these points of my declaration on the questions which are usually asked when making a mental examination for instance I asked him, What is your name, 'and he correctly answered Tomas Rodriguez; I asked him if he was married and he answered 'No;' I asked him his profession and he answered that formerly he was an attorney but that at the time I was making the examination he was not practising the profession; I asked him with what he supported himself and he said that he lived upon his income, he said verbatim, 'I live on my income.' I also asked him what the amount of him income was and he answered that it was about P900; I asked him what the source of this income was 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 oftentimes got angry due to his physical disease; I asked him if he had any relatives and he answered correctly saying that he had. He mentioned Vicente Lopez, Margarita Lopez, and Luz Lopez. As to his memory. His memory of the past. He very easily remembered past events and when he described them he did it with such pleasure the he used to smile afterwards — if it was a fact upon which one must smile, His memory of recent facts was very much lessened. I say this because on various occasions and not having known 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 knowledge of himself because he knew that he was sick and could not be moving with ease, but he believed that he could perform with sufficient ease mental acts; his judgment was also all right because I asked him this question: 'Supposing that you could find a bill of P5 in the vestibule of a hotel, what would you do with it ?' He told me that he would take the bill and give it to the manager in order that the latter may look for the owner if possible. His reasoning. I found that he showed a moderated retardation in the flow of his thought, especially with regard to recent events, but was quite all right as to past events, His capacity, He believed that he was capable of thinking properly although what did not permit him to do so was 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 words the result of my examination.

Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke. Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the patient of November 6 and 7, 1923. Doctor Tietze had also been a witness 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 March 15, 1924, they prepared and signed the following:

MEDICAL CERTIFICATE

In the Matter 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 follows:

1. That we 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, we three have with care the diligence jointly and personally examined the person of said Tomas Rodriguez y Lopez; and previous to these dated, we have separately and partly jointly observed and examined said patient on various occasions; Dr. Sixto de los Angeles, at the patient's home, 246 Magallanes St., Manila, 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 we found and hereby certify to the following conclusions:

(a) That he was of unsound mind suffering from senile dementia, 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 was 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 would naturally have continued without 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 with such pathological basis.

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(c) That on account of such disease and conditions his mind and memory were so greatly impaired as to make him unable to know or to appreciate sufficiently the nature, effect, and consequences of the business he was 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 who were or might have been the objects of his bounty; and to free himself from the influences of importunities, threats and ingenuities, so that with a relatively less resistance, he might had been induced to do what others would not have done.

3. We have diagnosed this case as senile demential of the simple type, approaching the deteriorated stage upon the following 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 were completely forgotten. Faces and names of person introduced to him were not remembered after a short moment even without leaving his bedside . He showed no comprehension of the elemental routine required in the management of his properties, i.e.: who were the lessees of his houses, what rents they were paying, who was the administrator of his properties, in what banks he deposited his money or the amount of money deposited in such banks. Regarding his personal relation, he forgot that Mr. Antonio Ventura is the husband of his nearest woman cousin; the Mrs. Margarita Lopez was married, saying that the latter was single or spinster, in spite of the fact that formerly, during the past twenty-five years, he was aware 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 Mrs. Luz Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the only living beneficiary of his will. He also stated that Mr. 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 own physician. However, the memory for remote events was generally good, which is a characteristic symptom of senile dementia.

(b) Disorientation of time, place and persons. — He could not name the date when asked (day or month); could not name the hospital wherein he was confined; and failed to recognize the fact that Doctor Domingo was his physician.

(c) Disorders of perception. — He was almost completely indifferent to what was going on about him. He also failed to recognize the true value of objects shown him, that is he failed to recognized the 'Saturday Evening Post' nor would he deny that it was a will when presented as such. He also failed to show normal intellectual perception. Making no effort to correlate facts or to understand matters discussed in their proper light.

(d) Emotional deterioration. — The patient was not known during his time of physical incapacity to express in any way or lament the fact that he was unable to enjoy the happiness that was due him with his wealth. As a matter of fact, he showed complete indifference. He showed 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 when his cigar was not lit soon, he would becomes abusive in his language and show marked emotional outburst. If the servants did not immediately answer his call, he would break down and cry as a child.

(e) Symptoms of decreased intellectual capacity. — There was a laxity of the internal connection of ideas. The patient has shown no insight regarding his own condition. He did not appreciate the attitude of the parties concerned in his case; he would on several occasion become suspicious and fail to comprehend the purpose of our examination. He was inconsistent in his ideas and failed to grasp the meaning of his own statements. When questioned whether he would make a will, 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 was informed, however, that he had made a will 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 was fully able to administer his business personally.

His impairment of the intellectual field was further shown by his inability, despite his knowledge of world affairs, to appreciate the relative value of the statement made by Doctor Tietze as follows: '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 want to accept the cheque?' His answer was as follows: 'Now I cannot give my answer. It may be a surprise.' Such answer given by a man after long experience in business life, who had handled real estate property, well versed in the transaction of cheques, certainly shows a breaking down of the above field. No proper question were asked why the cheque was given by the King, who the King was, why he was selected by the King of Africa, or if there is a King of Africa at present. He further shows doubt in his mental capability by the following questions and answers:

"MARCAIDA: P. ¿Tiene usted actualmente algún asunto en los tribunales de justicia de Manila? -- R. No recuerdo en este momento.

"P. De tener usted algún asunto propio en los tribunales de justicia de Manila, ¿a qué abogado confiaría usted la defensa del mismo?--R. Al Sr. Marcaida, 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 Manila?--R. Con ninguno, porque en caso de nombrar, nombraría al Sr. Marcaida. (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. DOMINGO: 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. ¿Me conoce usted, D. Tomás?--R. Le conozco de vista. (P. 6, sten. N., Jan. 28, 1924.)

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"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) Other facts bearing upon the history of the case obtained by investigation of Doctor Angeles:

I. Family History. — His parents were noted to be of nervous temper and irritable.

II. Personal history. — He was a lawyer, but did not pursue his practice, devoting the greater part of his life to collecting antiquities, He was 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 was around him. He was neglectful in personal habits. On April, 1921, he suffered an injury to his forehead, from which he became temporarily unconscious, and was confined in the Philippine General Hospital for treatment. He frequently complained of attacks of dizziness and headache, following this injury; suffered form a large hernia; and about two years ago, he was fined for failure in filing his income tax, from which incident, we 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 knowledge and belief.

Manila, P.I., March 15, 1924.

(Sgd.) SIXTO DE LOS ANGELES W.B. BURKE, M.D. SAMUEL TIETZE

(Exhibit 33 in relation with 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 which appear the nurse's remarks. (Exhibits 8-A, 8-B, and 8-C.) In this connection, the testimony of the nurses is that Rodriguez was in the habit for no reason at all of calling "Maria, where are my 50 centavos, where is my key." In explanation of the observation made by the nurses, the nurse Apolonio Floreza testified.

Direct questions of Attorney OCAMPO:

Q. Among your observations on the 1st of January, 1924, you say 'with pains all over the body, and uttered some incoherent words of the same topics whenever is awakened.' How could you observe that he had pains all over the body?

APOLONIO FLOREZA, nurse: A. I observed that by the fact that whenever I touched the body of the patient he complained of some pain.

Q. On what 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, what did he do? — A. He said that it was aching.

Q. What words did he say when, according to your note, he uttered incoherent words whenever he awakes? — A. As for instance, 'Maria,' repeating it 'Where are my 50 centavos, where is my key?'

Q. Did you hear him talk of Maria? — A. Only the word Maria.

Q. How long approximately was he talking uttering the name of 'Maria, Where are my 50 centavos,' and where is my key? — A. For two or three minutes.

Q. Can you tell the court whether on those occasions when he said the name of Maria he said other words and was talking with somebody? — A. He was talking to himself.

Q. This remark on Exhibit 8-B when was it written 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 whenever patient is awakened.' How did you happen to know the pain which you have noted here? A. The pains all over the body, I have observed them when giving him baths.

Q. Besides saying that it ached when you touched the body, do you know whether he did any extraordinary thing? A. You mean to say acts?

Q. Acts or words? A. Yes, sir, like those words which I have already said which he used to say — Maria, the key, 50 centavos.

Q. You say that he called Maria. What did he say about Maria on that date January 2, 1924? — A. He used to say Maria where is Maria?

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Q. On that date January 2, 1924, did you answer him when he said Maria? — A. No sir.

Q. In this observation of yours appearing on page 8-C you say among other things with pain all over the body and shouted whenever 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 whether he said anything? — A . He repeated the same words I have said before — Maria the 50 centavos the key.

Q. When did this observation occur which 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 was suffering from anemia, hernia inguinal, chronic dypsia, and senility. Physically he was a wreck.

As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke, further declare that his memory however for remote events was generally good. He was given to irrational exclamations symptomatic of a deceased mind.

While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the patient are "sound, except that his memory is weak," and that in executing the will the testator had full understanding of the act he was performing and full knowledge of the contents thereof, Doctors De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they diagnosed his case as senile dementia of the simple type approaching the deteriorated stage. Without attempting at this stage to pass in judgment on the antagonistic conclusions of the medical witnesses, or on other disputed point, insofar as the facts are concerned, a resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will, or had he passed so far along in senile dementia 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 allowance of a will 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 disallowing a will is "If the testator was insane or otherwise mentally incapable of the execution." (Code of Civil Procedure, sec. 634 [2].) Predicated on these statutory provisions, this court has adopted the following definition of testamentary capacity: "'Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty.'" (Bugnao vs. Ubag [1909], 14 Phil., 163, followed 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 will (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, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary incapacity. Each case rests on its own facts and must be decided by its own facts.

There is one particular test relative to the capacity to make a will which is of some practical utility. This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the offspring of an unsound mind.

On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that all facts may be brought out which will assist in determining the question. The testimony of subscribing witnesses to a will concerning the testator's mental condition is entitled to great weight where they are truthful and intelligent. The evidence of those present at the execution of the will and of the attending physician is also to be relied upon. (Alexander on Willis, vol. I, pp. 433, 484; Wharton & Stille's Medical Jurisprudence, vol. I pp. 100 et seq.)

The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will 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 will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the effect of the judgment is conclusive with respect to the condition of the person. To this statement we cannot write down our conformity. The provisions of the cited section were taken from California, and there the Supreme court has never held what 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 which 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 where 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 will but does not invaluable the testament if competency can be shown. 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 was the result of senile dementia. This is the form of mental decay of the aged upon which will are most often contested. A Newton, Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient lunacy," would have proved historic subjects for expert dispute. Had Shakespeare's King Lear made a will, without any question it would have invited litigation and doubt.

Senile dementia usually called childishness has various forms and stages. To constitute complete senile dementia 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 will power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's Medical 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 which have gone forth from this court, relating to the testator having a sound and disposing mind, and which have been brought to our notice by counsel, every one of them has allowed the will, even when it was necessary to reverse the judgment of the trial court. A study of these cases discloses a consistent tendency to protect the wishes of the deceased whenever it be legally possible. These decisions also show great tenderness on the part of the court towards the last will and testament of the aged. (See Hernaez vs. Hernaez [1903], 1 Phil., 689, per Arellano, C. J., In the matter of the

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will o f Butalid [1908] 10 Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per Carson, J.; Macapinlac 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, we 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 was the will executed by Dona Juana Espinosa. The annulment of the will was sought first upon the ground of the incapacity of the testatrix. She was over 80 years of age, so ill that three days extreme unction, and two days afterwards she died. Prior thereto she walked 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 was deprived of her mental faculties." The will was held valid and efficacious.

In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that Dominga Butalid at the date of the execution of the document was not in the date of the execution of the document was not in the free use of her intellectual powers, she being over 90 years of age, lying in bed seriously ill, senseless and unable to utter a single word so that she did not know what she was doing when she executed the will while the document was claimed to have been executed under the influence and by the direction of one of the heirs designated in the will. Yet after an examination of the evidence in the will. Yet after an examination of the evidence in the will. The Chief Justice rendered judgment reversing the judgment appealed from and declaring the will 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 who swore positively that at the time of the execution of the will the testator was of sound mind and memory. Based on these and other facts, Mr. Justice Carson, speaking for court, laid down the following legal principles:

Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary known as insanity or idiocy there are numberless degrees of mental capacity or incapacity and while on one hand it had been held that mere weakness of mind or partial imbecility from disease of body, or from age, will to render a person incapable of making a will a weak or feeble minded person may make a valid will provided he has understanding and memory sufficient to enable him to know what he is about and how or to whom 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 would be the wills confirmed it this is correct. Pain, sickness, debility of body from age or infirmity, would according to its violence or duration in a greater or less degree, break in upon, weaken, 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, whether 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 will, providing such weakness really disqualifies for from knowing or appreciating the nature, effects, or

consequences of the act she is engaged in (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).

In the case of Nagtas vs. Paquio, supra, the record shows that the testator for some fourteen or 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 had lost the power of speech. However, he retained the use of his hand and could write fairly well. Through the medium of signs, he was able to indicate his wishes to his family. The will was attacked n the ground that the testator lacked mental capacity at the time of its execution. The will was nevertheless admitted to probate, Mr. Justice Trent, speaking for the court, announcement the following pertinent legal doctrines:

* * * There are many cases and authorities which we might cite to show that the courts have repeatedly held that mere weakness of mind and body, induced by age and disease do not render a person incapable of making a will. The law does not require that a person shall continue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. If such were the legal standard few indeed would be the number of wills 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 lowest conditions of diseased mentality which are denominated as insanity and idiocy.

The right to dispose of property by testamentary disposition is as sacred as any other right which 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 with a variety of mental weakness, disorders or peculiarities and still be capable in law of executing a valid will.' (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 with approval in Campbell vs. Campbell (130 Ill. 466) as follows:

To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken unimpaired or unshattered by disease or otherwise 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, what was the degree of memory possessed by the testator as had, he a disposing memory? Was he able to remember the property he was about to bequeth the manner of distributing it and the object of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will.' (See authorities there cited)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator died at the age of nearly 102 years. In his early years he was an intelligent and well informed man. About seven years prior to his death he suffered a paralytic stroke and from

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that time his mind and memory were much enfeebled. He became very dull of hearing and in consequence of the shrinking of his brain he was affected with senile cataract causing total blindness. He became filthy and obscene in his habits, although formerly he was 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 will affect the capacity to make a will, 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 will and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events, especially of names and repeated questions in conversation; and sometimes, when aroused from sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence are of the opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression.

In the above case the will was sustained. In the case at bar we might draw the same contract as was pictured by the court in the case just quoted. . . .

The particular difference between all of the Philippine case which are cited and the case at bar are that in none of the Philippine cases was there any declaration of incomplicated and in none of them were the facts quite as complicated as they are here. A case in point where the will was contested, because the testator was not of sound and disposing mind and memory and because at the time of the making of the will he was acting under the undue influence of his brothers and where he had a guardian when he executed his will, is Ames' Will ([1902] 40 Ore., 495). Mr. Justice Moore, delivering the opinion of the court, in part said:

It is contended by contestant's counsel that on the day said pretended will purports to have been executed, Lowell was declared incompetent by a court which 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 which required evidence so strong as to leave no reasonable doubt as to his capacity to make a valid will, and the testimony introduced by the proponent being insufficient for that purpose the court erred in admitting it to probate.

The appointment of a guardian of a person alleged to be non compos mentis, by a court having jurisdiction must necessarily create a presumption of the mental infirmity of the ward; 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 will was in fact of sound and disposing mind and memory: Stone vs. Damon, 12 Mass., 487; Breed vs. Pratt, 18 Pick, 115: In re Slinger's Will, 72 Wis., 22 (37 N. W. 236).

The testimony shows that the testator retained a vivid recollection of the contents of the books he had read and studied when he was 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 always depend upon and are measured by the degree of attention given to the perception of truth, which 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 want of power on concentration of the mind. The aged live in the past and the impression retained in their minds are those that were made in their younger days, because at that period of their lives they were able to exercise will 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 dementia, which is something more than a mere loss of mental power, 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 will understand the business in which he is engaged and has a knowledge of his property and how he wishes to dispose of 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 Lowell at the time he executed the pretended will, was not wholly lacking in testamentary capacity, he was, in consequence of age ill health, debility of body and infirmity of will power, Andrew and Joseph having knowledge 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 to deprive the contestant of all interest therein except such as was given her by statute. . . . Assuming that he was 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 will therefore executed void? . . . When a will 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 was free from restraint and not acting under undue influence notwithstanding sympathy for persons legally entitled to the testator's bounty and a sense of innate justice might suggest a different testamentary disposition.

Believing, as we do, that the findings of the circuit court are supported by the weight of the testimony its decree is affirmed.

Insofar as the law on testamentary capacity to make a will 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 down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date?

II. UNDUE INFLUENCE

A. Facts. — The will was attacked on the further ground of undue influence exercised by the persons benefited in the will in collaboration with others. The trial 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

21

the most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F. Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as to who 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 who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would 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 was acting according to the best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the attitude of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity toward them, it seems fairly evident that even if the will had been made in previous years when Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document.

B. LAW. — One of the grounds for disallowing a will is that it was 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 with the law of wills and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the testator to do that which is against the will from fear the desire of peace or from other feeling which is unable to resist.

The theory of undue influence is totally rejected as not proved.

III. JUDGMENT

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 to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date?

Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which the will was executed and to the testator's mental condition. The other subscribing witness, also, a physician on the contrary testified to a fact which, if substantiated, would require the court to disallow the will. The attending physician and three other eminent members of the medical fraternity, who were present at the execution of the will, expressed opinions entirely favorable to the capacity of the testator. As against this we have the professional speculations of three other equally eminent members of the medical profession when the will was executed. The advantage on those facts is all with those who offer the will for probate.

The will was short. It could easily be understood by a person in physical distress. It was reasonable, that is, it was reasonable if we take into account the evident prejustice of the testator against the husband of Margarita Lopez.

With special reference of the definition of testamentary capacity, we may say this: On January 3, 1924, Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was engaged. He had two conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was read to him by Mr. Legarda. He signed the will 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 who would naturally be supposed to have claims upon him While for some months prior to the making of the will he had not manage his property he seem to have retained a distinct recollection of what it consisted and of his income. Occasionally his memory failed

him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to entertain a prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in which the instrument distributed the property naming the objects of his bounty. His conversations with Judge Mina disclosed as insistence on giving all of his property to the two persons whom he specified.

On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically decrepit, may have been weak 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, which the law terms "testamentary capacity." That in effect is the definite opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing the evidence for the oppositors, and after giving to the case the serious consideration which it deserves.

The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to probate without 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.

Sotto and Astilla for appellant.B. Quitoriano for appellee.

 

VILLA-REAL, J.:

This is an appeal taken by the opponent Marciana Abella from the judgment rendered by the Court of First Instance of Ilocos Sur, the dispositive part of which reads as follows:

Wherefore, this court is of the opinion, and so holds, that the opposition filed by Marciana Abella is without 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 Matea Abella. So ordered.

In support of her appeal, the appellant assigns the following alleged errors in the decision of the court a quo, to wit:

1. The lower court erred in holding that Matea Abella was in the full enjoyment of her mental faculties and executed the document, Exhibit A, as a true expression of her last will.

2. The lower court erred in holding that the requirements of the law have been complied with in the execution of the will, Exhibit A.

3. The lower court erred in holding that when the late Matea Abella affixed her alleged signatures to the will, Exhibit A, she did not act under the illegal and undue influence of certain legatees.

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4. The lower court erred in decreeing the probate of the will, Exhibit A.

The following facts have been proven by a preponderance of evidence presented during the trial, to wit:

The testatrix, Matea Abella, resident of the municipality of Sinait, Ilocos Sur, had been informed that Dr. Antonio Querol of San Fernando La Union, was 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 with whom she was acquainted he having been the parish priest of Sinait. During her stay in the said convent, she went to Dr. Antonio Querol's clinic twice within the period of one week accompanied by her aforesaid niece, Filomena Inay, to consult the said physician who, after submitting her to a general medical examination, found that she was suffering from dyspepsia and cancer of the stomach.

On or about April 26, 1932, Matea Abella ordered a sexton of the convent to call Attorney Teodoro R. Reinoso to whom she expressed her desire to make a will, in the presence of the Father Cordero's sister, Father Zoilo Aguda, Macario Calug and the fiscal of the convent. Inasmuch as the aforesaid attorney had to attend to other business, he could not finish his interview with the testatrix on the first day and had to continue it the following day, also in the presence of Father Cordero, his sister, Filomena Inay and some children who 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 who entered and left the sala. At the end of the interview, Matea Abella ordered he niece, Filomena Inay, to bring her some papers which were in her trunk, which she delivered to the said attorney. After the will had been drafted in Ilocano, the dialect of the testatrix, Macario Calug read it to her and she approved it. When the will had been copied clean, it was again read to the testatrix and she express her approval thereof, but inasmuch as it was rather late at night, she did not care to sign the same suggesting that it be postponed to the following day, April 29, 1932, which was done. At about 7:30 o'clock on the morning of April 29, 1932, the signing of the will took place in the corridor of the convent. The testatrix Matea Abella was the first to sign it on a table in the presence of each and every one of the instrumental witnesses thereto and of other persons, including Father Cordero. After the testatrix, each of the instrument witnesses signed in the presence of the testatrix and of each and every one of the other witnesses. After the will had been signed, Attorney Teodoro R. Reinoso delivered the original and the copies thereof to the testatrix, retaining one for his file. On July 3, 1932, Matea Abella died of the senile debility in the municipality of Sinait at the age of 88 years.

The opponent herein attempted to prove that the testatrix was deaf and that her eyesight was defective; that when one moved away from her and again approached her she was unable to recognize him; that it was necessary to shout into her ear to call her for meals; that she used to urinate on her clothes without being aware 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 was unable to go downstairs without assistance; that when she was called at mealtime she used to answer: "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 two 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 will she bequeathed properties which she had already donated to other persons.

We are face to face with two divergent theories regarding the mental state of the testatrix Matea Abella at the time of the execution of her will, Exhibit A. The opponent claims that, inasmuch as the testatrix was 88 years of age when she made her will, she was already suffering from senile debility and therefore her mental faculties were not functioning normally anymore and that she was not fully aware of her acts. As an indication of her senile debility, she attempted to prove that the testatrix had very poor memory in connection with her properties and interest; that she could not go downstairs without 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 will, we have the undisputed 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 whose 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 walked twice to the aforesaid doctor's clinic, accompanied by her niece, Filomena Inay; the fact that she had personally furnished the aforesaid doctor with all the necessary data regarding the history of her illness the fact of her having brought with 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 wished to embody in her relative to her properties and the persons in whose favor she wished to bequeath them; the fact of her not wishing to sign her will on the night of April 28, 1932, but the following day, in order to be able to see it better, and the fact of her having affixed her signature, in her own handwriting, to the original as well as to the copies of her will which consisted of nine pages. All these data show that the testatrix was not so physically weak, nor so blind, nor so deaf, nor so lacking in intelligence that she could not, with full understanding thereof, dispose of her properties and make a will. 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 will Matea Abella disposed of properties, which 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 will. 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 where, due to lack of hotels, the town convents are usually given preference by strangers because they are given better accommodations and allowed more freedom. In the present case, the testatrix Matea Abella was a stranger in San Fernando, La Union. Inasmuch as Father Cordero, the parish priest of the said town, was well known 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 Matea Abella stopped at a convent and enjoyed the hospitality of a priest who gave her accommodations therein, nor the fact that the will was executed in the convent in question in the presence of the parish priest and witnessed by another priest, could certainly not be considered as an influence which placed her under the obligation to bequeath of her property to the bishop of said diocese.

In view of the foregoing considerations, we are of the opinion and so hold: (1) That neither senile ability, nor deafness, nor blindness, nor 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, when there is sufficient evidence of his mental sanity at the time of the execution of the will; 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 witness, constitutes undue influence sufficient to justify the annulment of a legacy in favor of the bishop of a diocese made in her will by a testatrix 88 years of age, suffering from defective eyesight and

23

hearing, while she is stopping at a convent within the aforestated diocese.

Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the costs against the appellant. So ordered.

Malcolm, Abad Santos, 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 Triumfante for petitioners.

Sabido-Sabido & Associates and Madrid Law Office for private respondents.

 

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 which reversed the decision of the Court of First Instance of Albay allowing the probate of the win of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied the probate of the will, declared null and void the two 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 to the filing of these two consolidated actions are the following.

On November 25, 1949, Don Jesus Alsua and his wife, Doñ;a Florentina Rella, both of Ligao, Albay, together with 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, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Doñ;a Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to wit: têñ.£îhqwâ£

(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which 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 acknowledgment 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 with the figures of 1 to 5 and 30 shares of San Miguel Brewery

stock which are paraphernal properties of the late Doñ;a Tinay (segundo parafo).

(3) An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo tercero y cuatro).

(4) An acknowledgment 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 following terms and conditions: (Parafo quinto):

To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon specifically described from pages 1-12 of said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00.

To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon specifically described from pages 12-20 of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00.

To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon specifically described from pages 20-33 of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00.

To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements thereon specifically described from pages 33-47 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of P58,830.00. têñ.£îhqwâ£

(a) Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and adjudicated to the heirs 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 acknowledge 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 — waiving 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 waive any claim they have or they may have over the remaining portion of the properties, which spouses reserved for themselves.

(c) That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which 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 ownership as his legitimate participation in the conjugal properties. In consequence they waive any claim that they have or may have over said portion of said properties or any amount in cash

24

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 waives 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 which were 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 which shag be distributed in equal shares among the heirs upon his or her death unless said properties of some of them have been disposed of during the lifetime of the surviving spouse.

(e) Any heir who 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 absolute owner of the properties adjudicated to him under this deed.

On January 5, 1955, Don Jesus and Doñ;a Florentina, also known as Doñ;a Tinay separately executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in implementation of the extrajudicial partition of November 25, 1949. Their holographic wills 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 wigs also declared that in the event of future acquisitions of other properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be divided equally among the four children. The holographic will of Doñ;a Tinay written in Spanish reads, as translated: têñ.£îhqwâ£

TESTAMENT

I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the Municipality of Ligao, Province of Albay, Philippines, being in the full possession of my mental and physical faculties freely and spontaneously execute this my last will and testament in my handwriting and signed by me and expressed in the Spanish language which I speak, write and understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and provide:

First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4) of whom 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 without 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, we were 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 Manila.

Third: That I institute as my heirs with right to inherit the following- 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, however, 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 with 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 without having to post any bond.

IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. têñ.£îhqwâ£

(SGD.) FLORENTINA R. DE ALSUA

(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 will on the same day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife.

On May 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 wins which were docketed 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 wins. Again, the codicils similarly acknowledged 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

25

Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as well as in all properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever belongs to him or her or would pertain to him or her, would be divided equally among the four children. It was also declared in both codicils that upon the death of either of the spouses, the surviving spouse was designated mutually and reciprocally as the executor or administrator of all the properties reserved for themselves.

The codicil executed by Doñ;a Tinay, written in Spanish reads, as translated: têñ.£îhqwâ£

CODICIL

This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that would 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 which 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 Manila, with the exception of that portion that I bequeath to my husband as his inheritance and his legitimate.

That I institute as my heirs with 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 which 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 will 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 which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document.

In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertain to me or would pertain to me, which 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. têñ.£îhqwâ£

(SGD.) FLORENTINA RALLA DE ALSUA

(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R)

And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the same terms and conditions as the above codicil of his wife. 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 wins and the codicils thereto were duly admitted to probate.

Upon the death of Doñ;a Tinay on October 2, 1959, Don Jesus was named executor to serve without 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 will in the presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio imperial Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November 14, 1959 at Ms home in Ligao, Albay. This notarial will 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 will 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 whatever may be subsequently acquired in the future, before his death, were to be given to Francisca and Pablo, naming Francesca as executrix to serve without 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 which essentially confirmed the provisions of the partition of 1949, the holographic will 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 May 6,1964, Don Jesus Alsua died.

On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was 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 was procured by undue and improper pressure and influence on the part of the main beneficiaries and of person or persons in collusion with them, or the signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements of the law; and (d) that the alleged will 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' own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of 1949 which had already been partially executed by all the signatories thereto in the partition of the estate of Doñ;a Tinay in December, 1959.

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On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the properties of the estate which, according to the oppositors therein (the private respondents now) did not include some properties appearing in the agreement of November 25. 1949 or 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 with a total land area of 1,187,970 square meters, or approximately 119 hectares and with 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 well-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 will that these properties were 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 answer, Francisco claimed ownership over the same, alleging that she bought the properties from their father and presenting the two 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 two deeds of sale, with damages, which upon agreement of the parties was then jointly heard and tried with 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 which states: têñ.£îhqwâ£

WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:

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, which 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 lawful 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) Pesos for 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 which states, as translated, thus —têñ.£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 following manner: (1) in Special Proceedings 699, the probate of the will, 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, ordering the appellees Francisco Alsua and Joseph Betts to pay to the plaintiffs 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 wit: têñ.£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 will, 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 will.

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 will cannot be determined by acts of the herein private respondents as oppositors to the will in formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed by the court executor of the will 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, which petitioners claim and was 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 down in the case of Testate Estate of the Late Procopia Apostol Benedicta 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 when he was still in the Court of Appeals, and We quote: têñ.£îhqwâ£

Finally, probate proceedings involve public interest, and the application therein of the rile of estoppel, when it win 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: têñ.£îhqwâ£

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'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, which 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 to validate the 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 with the public interest, the devolutionary wishes of a deceased person (Matter of Watson's Wilt 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160 Misc. 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. Matter of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'

The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance was 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 where a will may be disallowed under Article 839 which provides as follows: têñ.£îhqwâ£

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

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

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

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

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

(5) If the signature of the testator was procured by fraud,

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the findings of the trial court on the due execution of the questioned will and testament of Don Jesus, declaring: têñ.£îhqwâ£

... and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A, was executed in accordance with Arts. 805-809 of the New Civil Code, this Tribunal from the very beginning accepts the findings of the inferior court concerning the question, têñ.£îhqwâ£

On October 2, 1959, Doñ;a Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided to make a new will, thereby revoking and cancelling his previous holographic will which 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 wrote on each page the word "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 with their corresponding descriptions.

Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge S, Imperial, who, incidentally, is now a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make a new will, and accordingly gave more detailed instructions as to how he wanted 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 whom 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 with Don Gregorio are always in Spanish. A few days before November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus said that it was as

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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 will should be at his home in Ligao, in the morning of November 14, 1959, and that the witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a friend of the family; and Mr. Jose Gaya who 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 Mr. Ramon Balana, and informed the latter that Don Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya, and the latter requested them to be seated at the usual receiving room on the ground floor while he announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came down, carrying with him the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them in conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don Jesus. Mr. Madarieta was already informed by Don Jesus himself about the fact of signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial Atty. Jorge S. Imperial Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that

Don Jesus was in bright and lively conversation which ran from problems of farming and the merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made a remark that it is about time to do what they were there for, and this was followed by a more or less statement from Jesus, who said: têñ.£îhqwâ£

'Preisamente es por lo que he Hamado a ustedes que esten presentes para ser testigos de rni ultimo voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, 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 were chairs all around this table. The will which consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing began, with Atty. Jorge S.

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Imperial assisting each person signing by indicating the proper place where the signature shall be written. Don Jesus, as testator, signed first. After signing the original and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when Mr. Madarieta finished signing all the three sets, the same were passed to Mr. Jose Gaya who also signed as the third attesting witness. 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 witnesses (Balana, Madarieta 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 will was marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were Identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge) imperial. It was also clearly established that when Don Jesus signed the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three witnesses was signing, Don Jesus and the two other attesting witnesses were present and Witnessing said Signing. The signing by the testator and the attesting witnesses having been completed, Atty. Jorge S. Imperial as Notary Public with commission for the entire province of Albay, notarized the wilt and sealed it with his notarial seat which seal he brought along that morning. After all the three sets were notarized, they were all given back to Don Jesus who placed them inside the same folder. At that moment, it was already about 12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of then-L (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R)

which findings are supported by the evidence, - it is quite difficult to conclude that the same had not complied with the requirements of Arts. 804-

806 of 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 lower court declaring the contested will as having been executed with all the formal requirements of a valid will, 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 dwell on the matter as both the lower 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 will was duly executed in accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully complied with the formal requirements of the law.

Respondent court, however, denied probate of the will after ,'noting certain details which were a little bit difficult to reconcile with the ordinary course of things and of life." First was the fact that the spouses Don Jesus and Doñ;a Tinay together with their four children Francisco, Pablo, Amparo and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of the spouses between 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 wigs both dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and upon the death of Doñ;a Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties or estate of Doñ;a Tinay was approved by the probate court on July 6, 1960.

The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating said partition agreement, barring him from revoking his holographic will 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 with 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 which are applicable hereto. These Articles provide as follows: têñ.£îhqwâ£

Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, 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, which are not excluded from the commerce of man, may be the subject-matter of contracts.

Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos of an estate, in accordance with 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 word "testator" from which 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 will or testament. In other words, Article 1056 being an exception cannot be given a wider scope as to

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include in the exception any person whether he has made a will or not.

Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions this fact in the will, 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 will that it ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.

Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically declared the necessity of a prior will before the testator can partition his properties among his heirs, and We quote the pertinent portions of the decision: têñ.£îhqwâ£

The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces, the defendants and appellants herein, was 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 will, 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 down the following 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 wherein said article is found, without the authority of a testament containing an expression of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to 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 with respect to future inheritances except those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is evident that said difference likewise 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 with the fundamental rules thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner, which, otherwise, would 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.

Manresa comments on the same article as follows:

A distinction must be made between 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 will, must be understood in accordance with 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 wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter vivos. With these words, the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to the effects thereof, which means that, for purposes of partition the formal solemnities which must accompany every testament or last will 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 which already have been legally disposed of.

It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to take effect after his death.

We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had been validly ratified by the holographic will 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 who executes a will is permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of making a new will with contrary provisions or dispositions. It is an error because the so-called extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be

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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 was substantial compliance with 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 which, as stated in the deed, was to be divided equally among the children for the simple reason that the property or properties were not specifically described in the public instrument, an essential requirement under Article 633 which provides as follows: têñ.£îhqwâ£

Art. 633. In order that a donation or real property be valid it must be made by public instrument in which 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 writing; 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 which may be disposed of in such manner that either of the spouses would 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 what belongs or-would 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 which must be charged against their legitime and cannot anymore be revoked unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to their respective shares.

Upon the death of Doñ;a Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must be stressed here that the distribution of her properties was subject to her holographic win and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is fundamental because otherwise, to consider both wills and codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Doñ;a Tinay, only her estate was being settled, and not that of Don Jesus.

We have carefully examined the provisions of the holographic will and codicil of Doñ;a Tinay and We find no indication whatsoever 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 will, mention of her children as heirs was made in the fourth clause but it only provided that, to wit: têñ.£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 would only inherit together with Don Jesus whatever new properties Doñ;a Tinay would acquire after the execution of her will.

Likewise, 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: têñ.£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: têñ.£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 which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document.

In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertains to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death.

The children, therefore, would 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 was bequeathing him.

Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that Doñ;a Tinay's wig and codicil did not stipulate that Don Jesus will bestow the properties equally to the children, it follows that all the properties of Doñ;a Tinay bequeathed to Don Jesus under her holographic win and codicil became part of Don Jesus' estate unburdened by any condition obligation or proviso.

Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said Partition by making a holographic will and codicil with exactly the same provisions as those of Doñ;a Tinay, which respondent court sustained. We rule, however, that Don Jesus was not forever bound

32

thereby for his previous holographic will and codicil as such, would remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A win may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There can be no restriction that may be made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at bar already been probated (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the succession are transmitted only 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, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua estate is being contested.

After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Doñ;a Tinay in her holographic will 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 will and codicil, by making another win expressly cancelling and revoking the former, the next issue for the Court's resolution is the validity of the provisions of the contested will. 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 will even before it had been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499: têñ.£îhqwâ£

The parties shunted aside the question of whether or not the will should be allowed to probate. For them, the meat of the case is the intrinsic validity of the wilt Normally this comes only after the court has declared that the will has been duly authenticated. ...

... If the case were to be remanded for probate of the wilt nothing will be gained. On the contrary, this litigation win be protracted and for ought that appears in the record, in the event of probate or if the court rejects the will probability exists that the case win come up once again before us on the issue of the intrinsic validity or nullity of the wilt Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a behalf that we might as well meet head-on the time of the validity of the provisions of the will in question. ...

The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic wig 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 without 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 contested will 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 win was 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 which he received as his inheritance from Doñ;a Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The

properties that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may choose.

If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule inBustamante v. Arevalo, 73 Phil. 635, to wit: têñ.£îhqwâ£

... nevertheless it would be venturesome for the court to advance its own 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 will. ...

It would be a dangerous precedent to strain the interpretation of a will in order to effect what 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 wig. Once that intention has been determined through a careful reading of the will or wills, 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 inward process of her conscience. She was the sole judge of her own attitude toward those who expected her bounty. ...

Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the prejudice of the other heirs who would have been entitled to an equal share under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man of culture and honor and would not snow himself to violate the previous agreement, and the other as one whose mental faculties or his possession of the same had been diminished considering that when the will was executed, he was already 84 years of age and in view of his weakness and advanced age, the actual administration of his properties had been left to his assistant Madarieta who, for his part received instructions from Francisco and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable. Under Article 799 of the New Civil Code which provides as follows: têñ.£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 wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, 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 win. Mere weakness of mind or partial imbecility from disease of body or from age-does not render a person incapable of making a will. têñ.£îhqwâ£

Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that

33

degrees of mental aberration generally known as insanity or Idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom 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 otherwise. 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 will, 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 win and testament of Don Jesus has foreclosed any and all claim to the contrary that the will was not executed in accordance with 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 was Don Jesus himself who gave detailed instructions to his lawyer as to how he wanted 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 will prepared by his lawyer w-as even corrected by Don Jesus; (c) on the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the conversation which ran from problems of farming and the merits of French-made wines"; (d) the signing of the will by Don Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering, to wit: têñ.£îhqwâ£

Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser testigos de mi ultima voluntad y testamento que 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 what his actions were and the fun implications thereof.

In rejecting probate of the wilt respondent court further pointed out other details which, in the words of the decision "are a little bit difficult to reconcile with the ordinary course of things and of fife" such as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his lifetime but insofar as the will 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 when the same properties had already been bequeathed to her in the will 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 with less favor, and that he was more sympathetic to Francisca so as to or forget the former depriving them of benefits already given to them and rewarding the latter with disproportionate advantages or benefits, to such an extreme as to violate his previous disposition consecrated in the previous extrajudicial partition, Exh. 8."

We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of things and of life are mere conjectures, surmises or speculations which, however, do not warrant or justify disallowance of the probate of the win of Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime while his previous holographic win and codicil were duly probated when he was still alive is a mere speculation which 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 allowance or disallowance of the wig. The same thing can be said as to whatever reason Don Jesus had for selling the properties to his daughter Francisca when he had already assigned the same properties to her in his will. While We can speculate that Don Jesus desired to have possession of the properties transferred to Francisca after the sale instead of waiting for his death may be a reasonable explanation or speculation for the act of the testator and yet there is no certainty that such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to accept which respondent court believes. A conjecture is always 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 two Deeds of Sale executed by and between Don Jesus and petitioner Francisco is their validity or nullity. Private respondents mainly contend that the sales were fictitious or simulated, there having been no actual consideration paid. They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari proceeding before the Supreme Court. On the other hand, petitioners herein maintain that it was error for the respondent court to set aside on appeal the factual findings of the trial court that the two sales were valid.

It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing 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 was in disagreement with the lower court as to the weight of evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers 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 which are based upon substantial evidence. The general rule laid down 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, where We have reviewed and revised the findings of fact of the Court of Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed 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, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelists vs. Alto Surety & Ins.

34

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 was not supported by the evidence on record and adduced during the trial.

Evident from the records are the following documentary 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), which document bears the signature of Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, 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), which 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 witness, acknowledging 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, drawn 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, drawn 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 were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the 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 were fictitious and void for being without cause or consideration is as weak and flimsy as the ground upon which the respondent court upheld said claim on the basis that there was no need for funds in Don Jesus' old age aside from the speculation that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francesca and discriminate against the other children. The two contracts of same executed by Don Jesus in favor of Francesca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any time during this long drawn-out litigation of 15 years standing. That the consideration stated in the contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of the consideration And even of he now allege that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3 " and "X-5 ", which show that the checks of Francisco made payable to Don Jesus. were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the annulment case, which proved that Don Jesus actually used Exhibit "XI " to complete payment on the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue.

Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of consideration does not vitiate a contract unless it is proven which in the case at bar was not, that there was 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 was much higher than the assessed value of the subject properties and considering that the sales were effected by a father to her daughter in which case filial love must be taken into account.

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, with 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. Platon & Lontoc 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 Manila, in which he had legalized the will of the said Pascual de la Cruz, deceased.

The contention of the opponent is that at the time of the making of the will the said Pascual de la Cruz was blind and had been for a number of years, and was incompetent to make the will in question.

Against this contention of the opponent, all of the witnesses who signed the will were called as witnesses, and each declared that the deceased was 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 will in the presence of each other, as well as in the presence of the deceased.

The appellant attempted to show that the deceased was incompetent to make his will because he was blind at the time the same was executed and had been for several years theretofore. There is absolutely no proof to show that the deceased was incapacitated at the time he executed his will. No presumption of incapacity can arise from the mere fact that he was blind. The only requirement of the law as to the capacity to make a will 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 witnesses in the execution of wills, but no limitation is placed upon the testamentary capacity, except age and soundness of mind.

In our opinion the record contains nothing which justifies the modification of the order made legalizing the will in the present case. The order of the lower court admitting to probate and legalizing the will in question is therefore hereby affirmed with 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.

Araneta & Zaragoza for appellants.M. Fernandez Yanson, Pio Sian Melliza and Montinola, Montinola & Hontiveros for appellees.

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VILLAMOR, J.:

On June 10, 19120, Rafael Jocson, Cirilo Manlaque, and Filomena Goza presented a petition in the court below for the probate of the document Exhibit A, as the last will and testament of the deceased Marcelo Jocson. This petitioner was opposed by Rosauro, Asuncion, and Dominga Jocson, alleging that: (a) The supposed will was not the last will of the deceased, and the signatures appearing thereon, and which are said to be of the testator, are not authentic; (b) the testator, that is, the deceased, was not of sound mind and was seriously ill at the time of its execution; and (c) the supposed will was not executed in accordance with the law.

After trial the lower court rendered decision finding, among other things, as follows:

For all of the foregoing reasons the court finds that some hours before, during and one hour after, the execution of his will, Marcelo Jocson was of sound mind; that he dictated his will in Visaya, his own dialect; that he signed his will in the presence of three witnesses at the bottom, and on each of the left margins of the three sheets in which it was written; that said three witnesses signed the will in the presence of the testator and of each other, all of which requirements make the documents Exhibit A a valid will, in accordance with 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 will and testament of the deceased Marcelo Jocson, and it is ordered that the same be admitted to probate, and Rafael Jocson is hereby appointed administrator of the estate left by said deceased, upon the filing of a bond in the sum of fifteen thousand pesos (P15,000).

The appellants allege that the trial court erred in holding that Exhibit A is the last will and testament of the deceased Marcelo Jocson, and in ordering and decreeing the probate thereof as his last will.

All the arguments advanced by the appellants tend to show that the testator Marcelo Jocson, at the time of executing the will, did not have the mental capacity necessary therefor; that said will was not signed b the witnesses in the presence of the testator; that the witnesses did not sign the will in the presence of each other; and that the attestation of the supposed will does not state that the witnesses signed in the presence of the testator.

All of these points raised by the appellants were discussed at length by the trial court upon the evidence introduced by the parties. After an examination of said evidence, we 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 between the declarations of the witnesses on some details prior to, and simultaneous with, the execution of the will, 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 was held:

While a number of contradictions in the testimony of alleged subscribing witnesses to a will as to the circumstances under which it was executed, or a single contradiction as to a particular incident to which the attention of such witnesses must have been directed, may in certain cases justify the conclusion that the alleged witnesses were not present, together, at the time when the alleged will was executed, a mere lapse of memory on the part of one of these witnesses as to the precise details of an unimportant incident, to which his

attention was not directed, does not necessarily put in doubt the truth and veracity of the testimony in support of the execution of the will.

As to the mental capacity of the testator at the time of executing his will, the finding of the trial court that the testator was of sound mind at the time of dictating and signing his will is supported by the evidence. This court, in the case of Bagtas vs. Paguio (22 Phil., 227), held:

To constitute a sound mind and disposing memory it is not necessary that the mind shall be wholly unbroken, unimpaired, and unshattered by disease or otherwise, 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 was declared:

Proof of the existence of all the elements in the following definition of testamentary capacity, which 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 which the testator is engaged at the time, to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of this bounty."

Whether or not the witnesses signed the will in the presence of the testator and whether or not they signed in the presence of each other, are questions of fact that must be decided in accordance with the evidence. The trial judge, who tried this case and saw and heard the witnesses while testifying, held that these solemnities were complied with at the execution of the will in question and we find no reason for altering his conclusions.

The objection to the attestation of Exhibit A is groundless if the terms thereof are considered, which, translated from the Visayan dialect, in which the will was written, into English, says:

We, witnesses, do hereby state that the document written on each side of the three sheets of paper was executed, acknowledged, signed, and published by the testator abovenamed, Marcelo Jocson, who declared that it was his last will and testament in our presence and, at his request and all of us being present, we signed our named on the three sheets of paper as witnesses to this will in the presence of each other. (Translation of Exhibit A, page 18, documentary evidence.)

The judgment appealed from is affirmed with the costs against the appellants. So ordered.

Araullo, C.J., Malcolm, Avanceña, Ostrand 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, Pedro Sabido, and DeWitt, Perkins and Ponce Enrile for appellant.Vicente J. Francisco, Eusebio Orense, and Arturo Joven for appellees.

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R E S O L U T I O N

ABAD SANTOS, J.:

The decision in this case, affirming that the lower court, was rendered in favor of the appellees on January 16, 1936, 1 by a majority of six with 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 would 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 would be impossible for him to do so within the period fixed by law. This petition was 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 with the same division of votes, minus that of one of the dissenting justices who was 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 which there was office for only a half day, being Saturday, and could not have been received in the ordinary course until Monday, February 3d, as the following day, the second of said month, was 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 lower 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 lower 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 March 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 witness, 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, which 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 allowed for the filing thereof because, otherwise, said provision of the rule would be without any

purpose. Without referring to the other probable cases, it is evident that in the case at bar, as the application was filed on the day following the receipt of notice of the denial of the motion for reconsideration, which is the first day available for said purpose (sec. 4, Code of Civil Procedure), it was filed in due time. This being so, the material fact that the case was remanded to the trial court a few hours after the filing of the application, without 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 within 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 were so, it would be impossible to file 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, May 14, 1934 and Nov. 1, 1934 [60 Phil., 1006, 1056]; and Ingsonvs. Olaybar, 52 Phil., 396). There are likewise precedents to that effect in American jurisprudence, particularly of the Supreme Court of New York, according to the following note 90 (a) in 4 Corpus Juris, 1245, which 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 Sweet vs. Mowry (138 N. Y., 650; 34 N. E. 388), a motion for reargument was granted, and a return of the remittitur requested. These acts of the court were held to be in resumption of jurisdiction. In Lawrence vs. Church (128 N. Y., 324; 28 N. E., 499), a motion to amend the remittitur was granted, and the order entered requested the return of the remittitur by the court below, and when so returned it was ordered to be amended. In Moffett vs. Elmendorf (153 N. Y., 674; 48 N. E., 1105), a motion to amend remittitur was granted, and order entered that the remittitur be recalled for that purpose. A like motion was granted in Buchanan vs. Little (155 N. Y., 635; 49 N. E., 1094). This later practice of the court is not necessarily inconsistent with the earlier cases, which 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. Fowler, 15 Abb. Pr. NS. [N. Y.] 86.) It is competent for this court to determine whether it will 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 following the determination of this court to resume jurisdiction." (Franklin Bank Note Co. vs. Mackey, 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 witness 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. The court, however, 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 witness Nuguid.

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This court is aware 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 would be justified. However, if the parties, after three days from the receipt of notice of this resolution, signify their desire to waive the presentation of said new evidence and to submit the case upon its merits, this court would be willing 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 will and testament of Emigdio Zarate, deceased, in conformity with section 630 of the Code of Procedure in Civil Actions. The petition was accompanied by the original will, marked "Exhibit A," of said Emigdio Zarate.

Due notice of said petition was given in accordance with law, and the hearing for the probation of said will was fixed for the 9th of March, 1910. Later the said hearing was transferred to the 16th of July, 1910. On the latter date the said Maria Calderon appeared, by her attorney, and opposed the probation of said will upon the following grounds:

1. That the said Emigdio Zarate was mentally incapacitated at the time he authorized and signed his will.

2. That he executed the said will under illegal and undue influence or persuasion on the part of some persons who acted in behalf of the beneficiaries or heirs.

3. That the signature of the testator was obtained by deceit or fraud, for the reason that it was not his intention that all that was recorded in the said instrument should be his will at the time he signed it; for the testator had informed the opponent, Maria Calderon, before and after the said will 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 will, because the said testator recognized that the house and lot referred to belonged to the said Maria Calderon.

Therefore, the opponent prays the court to annul the will alleged to have been executed by Emigdio Zarate, and to order that its probate be dissallowed, with the costs against the petitioner.

After hearing the evidence adduced pro and con, the lower court reached the following conclusion:

It having been proved completely on the part of the petitioner that the will in question was executed 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 will and testament of the deceased Emigdio Zarate.

From that conclusion of the lower court, the oppositor appealed to this court and made the following assignments of error:

I. The court erred in holding that the deceased, Emigdio Zarate, was in the full possession of his mental faculties at the time of the execution of his will.1awphil.net

II. The court erred in holding that the said Emigdio Zarate executed his last will and testament without illegal persuasion or influence on the part of persons working in behalf of the heirs.

III. The court erred in holding that Emigdio Zarate executed and signed his last will without fraud and deceit being brought to bear upon him.

IV. The court erred in holding that the testator signed his will in the presence of four witnesses, Sabino Sandoval, Esteban Sandoval, George Zarate and Eugenio Zarate, who, on their part, signed, each of them, in the presence of the others.

V. The court erred in holding that it was proved that the will in question was executed and signed i conformity with 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 will and testament of the deceased Emigdio Zarate.

VII. The court erred in rendering judgment in this matter without waiting for the written argument of both sides.

VIII. The court erred in not holding that all the proof taken together sustained the claim of the oppositor, Maria Calderon.

IX. The court erred in imposing the costs upon the oppositor.

With reference to the first assignment of error above noted, it appears from the record that upon the 13th day of January, 1910, Emigdio Zarate executed his last will and testament, the original of which 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 witnesses, Sabino M. Sandoval, Esteban Sandoval, George Zarate and Eugenio Zarate. From the record it appears that the testator dictated his will in the Pangasinan dialect and it was then translated into Spanish. After the will had been written in Spanish it was 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 will and testament.

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The appellant alleges that at the time of the execution of the said alleged will of Emigdio Zarate, he was not in the full possession of his mental faculties. This question was presented to the lower court. After hearing the evidence, the lower court found that Emigdio Zarate, at the time of the execution of the said will, was in the possession of his faculties. Two of the witnesses who signed the will, as well as others who were present in the house at the time the said will was executed, testified that in their opinion Emigdio Zarate was of sound mind and memory at the time he signed the said will. Practically the only testimony to the contrary adduced during the trial of the cause in the lower court was the testimony given by two doctors, one of whom had not seen the deceased for many months before his death, whose testimony was based wholly upon hypothetical questions.

The appellant attempted to show that Emigdio Zarate for some months prior to his death had been troubled with insomia, as well as some other physical infirmities. The hypothetical questions were based upon the question whether or not a person who had been suffering with insomia for some months would have sufficient mental capacity to execute a will. The two doctors who appeared on behalf of the opponents testified that insomia tended to destroy the mental capacity, but that there were times, even during the period while they were suffering from insomia, when they would be perfectly rational. Even admitting that there was some foundation for the supposition that Emigdio Zarate had suffered from the alleged infirmities, we do not believe that the testimony was sufficiently direct and positive, based upon the hypothetical; questions, to overcome the positive and direct testimony of the witnesses who were present at the time of the execution of the will in question. The evidence adduced during the trial of the case, shows a large preponderance of proof in favor of the fact that Emigdio Zarate was in the full possession of his mental faculties at the time he executed his last will and testament.

The second and third assignments of error may be considered together. Upon the question presented by the said assignments of error, the lower court found from the evidence that Emigdio Zarate executed his last will 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 two before the said will was made, it is claimed by the opponent, Maria Calderon, that the deceased promised to will to her a certain house (one-half of which seems to belong to her) upon the payment by her to the deceased and the said property was not willed to the defendant herein. The agreement between Maria Calderon and the deceased, if there was an agreement, seems to have been made between them privately, at least at the time the will was made the deceased made no reference to it whatever. Those present at the time the will was made and the witnesses who signed the same heard no statement or conversation relating to the said agreement, between the opponent herein and the deceased. There is no proof in the record which shows that any person even spoke to the deceased with reference to the willing of the said house to the opponent. There is nothing in the record to indicate in the slightest degree that any person interested in the will, or who was present at the time of the making of the same, induced or attempted to induce the deceased not to will the said house to the opponent herein. The theory of the opponent that the deceased did not will 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 two of the persons who signed the will as witnesses appeared and testified. They testified that the deceased signed the will in their presence and in the presence of the other witnesses to the will; that they each signed the will in the presence of the testator and in the presence of the other witnesses; that the other two witnesses who were not called also signed the will in the presence of the testator and in he presence of each of the other witnesses. There is no sufficient proof in the record to overcome the declarations of these witnesses. We find no reason, therefore, for modifying the conclusion of the lower court upon these assignments of error.

With reference to the seventh assignment of error, to wit: that the court erred in rendering judgment without waiting for the written arguments of both parties, it may be said that it is customary for courts to wait until the parties have presented their arguments before deciding a cause, nevertheless, it is not reversible error for a court to decide a cause without waiting for written arguments to be presented by the respective attorneys. It appears from the record (p. 102) that the trial of the cause was closed on the 5th of august, 1910, and that the decision in the cause was not rendered until the 5th of October, 1910, or until after two months had expired. There is nothing in the record which shows that either of the attorneys during these two months asked for additional time in which to present their written arguments. It also appears of record (p. 102) that the respective attorneys asked for fifteen days' time within which to present their written arguments. There is nothing in the record which shows whether they presented their written arguments presented before the decision was rendered in the cause, it was clearly not the fault of the judge.

The arguments heretofore given seem to be sufficient also to answer the eight and ninth assignments of error.

Upon a full consideration of the evidence and the assignments of error, we are of the opinion that the will of Emigdio Zarate, deceased, was executed and signed in entire conformity with all the requirements and solemnities required by law. Therefore the judgment of the lower court is hereby affirmed with 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.

Chicote and Miranda for appellants.O'Brien and DeWitt 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 Manila, asking that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and testament of Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died in the city of Manila on the 11th day of August, 1909. Accompanying said petition and attached thereto was the alleged will of the deceased. It appears that the will was signed by the deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Said petition, after due notice was given, was brought on for hearing on the 18th day of September, 1909. Timoteo Paez declared that he was 48 years of age; that he had known 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 will and testament; that he was present at the time of the execution of the same; that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also signed said will as witnesses and that they had signed the will in the presence of the deceased.

Pablo Agustin also declared as a witness and said that he was 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 Manila; that before her death she had executed a last will and testament; that he was present at the time said last will was executed; that there were also present Timoteo Paez and Severo Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the presence of the witnesses; that he had seen her sign the will with his own eyes; that the witnesses had signed the will in the presence of the said Tomasa Elizaga Yap

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Caong and in the presence of each other; that the said Tomasa Elizaga Yap Caong signed the will voluntarily, and in his judgment, she was in the possession of her faculties; that there were no threats or intimidation used to induce her to sign the will; that she signed it voluntarily.

No further witnesses were called and there was no further opposition presented to the legalization of the said will.

After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of September, 1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed 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 will, upon the giving of a bond, the amount of which was to be fixed later.

From the record it appears that no further proceedings were had until the 28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were interested in the matters of the said will and desired to intervene and asked that a guardian ad litem be appointed to represent them in the cause.

On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem 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 litem of said parties. On the 2d day of March, 1910, the said Gabriel La O appeared in court and presented a motion in which he alleged, in substance:

First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the 29th day of September, 1909, was null, for the following reasons:

(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.

(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then mentally capacitated to execute the same, due to her sickness.

(c) Because her signature to the will had been obtained through fraud and illegal influence upon the part of persons who were to receive a 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, which they alleged to be null, the said Tomasa Elizaga Yap Caong had executed another will, with all the formalities required by law, upon the 6th day of August, 1909.

Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been negligent in presenting their opposition to the legalization of the will, said negligence was excusable, on account of their age.

Upon the foregoing facts the court was 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 will. Said petition was 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 will of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the affidavits of Severo Tabora, Clotilde and Cornelia Serrano.

Upon the 10th day of March, 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 take place upon the 18th day of March, 1910, and directed that notice should be given to the petitioners of said rehearing and to all other persons interested in the will. At the rehearing a number of witnesses were examined.

It will be remembered that one of the grounds upon which the new trial was requested was that the deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August, 1909; that in support of that allegation, the protestants, during the rehearing, presented a witness called Tomas Puzon. Puzon testified that he was a professor and an expert in handwriting, and upon being shown the will (of August 11, 1909) Exhibit A, testified that the name and surname on Exhibit A, in his judgment were written by two 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 with the surname on Exhibit 1 he found that the character of the writing was thoroughly distinguished and 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 were written by different person.

Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that while he was a student in the Ateneo de Manila, he had studied penmanship; that he could not tell exactly when that was, 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- writing in the courts in the provinces.

Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in accordance with her request and under her directions; that she had signed it; that the same had been signed by three witnesses in her presence and in the presence of each other; that the will was written in her house; that she was sick and was lying in her bed, but that she sat up to sign the will; that she signed the will with great difficulty; that she was signed in her right mind.

The said Severo Tabora was also called as a witness again during the rehearing. He testified that he knew Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a witness to Exhibit A (the will of August 11, 1909) was placed there by him; that the deceased, Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she signed it before he (the witness) did; that he did not know whether anybody there told her to sign the will or not; that he signed two bills; that he did not know La O; that he did not believe that Tomasa had signed the will (Exhibit A) before he arrived at the house; that he was not sure that he had seen Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and there was a screen at the door and he could not see; that he was called a a witness to sign the second will and was told by the people there that it was the same as the first; that the will (Exhibit A) was on a table, far from the patient, in the house but outside the room where the patient was; that the will was signed by Paez and himself; that Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong could see the table on which the will was written at the time it was signed or not; that there were 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 will remained on the table after he signed it; that after he signed the will he went to the room where Tomasa was lying; that the will was left on the table outside; that Tomasa was very ill; that he heard the people asking Tomasa to sign the will after he was (the witness) had signed it; that he saw Paez sign the will, that he could not remember whether Anselmo Zacarias had signed the will, because immediately after he and Paez signed it, he left because he was hungry; that the place where the table was located was in the same house, on the floor, about two steps down from the floor on which Tomasa was.

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Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa Elizaga Yap Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa declared that he was 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 woman completely weak — very weak from her sickness, in the third stage of tuberculosis; that she was lying in bed; that on the first visit he found her with 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 was requested to issue the death certificate; that when he asked her (Tomasa) whether she was feeling any pain or anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as he believed, by the stage of uraemia from which she was suffering.

Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a child; that Tomasa was dead; that he had written the will exhibit A; that it was all in his writing except the last part, which was written by Carlos Sobaco; that he had written the will Exhibit A at the request of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who had instructed him as to the terms of the will ; that the deceased had not spoken to him concerning the terms of the will; that the will was written in the dining room of the residence of the deceased; that Tomasa was in another room different from that in which the will was written; that the will was not written in the presence of Tomasa; that he signed the will as a witness in the room where Tomasa was lying; that the other witnesses signed the will in the same room that when he went into the room where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when Lorenzo came to the bed he showed the will to his sister (Tomasa) and requested her to sign it; that she was lying stretched out on the bed and two women, who were taking care of her, helped her to sit up, supporting her by lacing their hands at her back; that when she started to write her name, he withdrew from the bed on account of the best inside the room; when he came back again to the sick bed the will was signed and was again in the hands of Lorenzo; that he did not see Tomasa sign the will because he withdrew from the room; that he did not know whether Tomasa had been informed of the contents of the will or not; he supposed she must have read it because Lorenzo turned the will over to her; that when Lorenzo asked her to sign the will, he did not know what she said — he could not hear her voice; that he did not know whether the sick woman 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 two witnesses, Timoteo Paez and Severo Tabora, had signed the will in the room with the sick woman; that he saw them sign the will and that they saw him sign it; that he was not sure whether the testatrix could have seen them at the time they signed the will or not; that there was a screen before the bed; that he did not think that Lorenzo had been giving instructions as to the contents of the will; that about ten or fifteen minutes elapsed from the time Lorenzo handed the will to Tomasa before she started to sign it; that the pen with which she signed the will as given to her and she held it.

Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong and that she was dead; that she had made two wills; that the first one was written by La O and the second by Zacarias; that he was present at the time Zacarias wrote the second one; that he was present when the second will was taken to Tomasa for signature; that Lorenzo had told Tomasa that the second will was exactly like the first; that Tomasa said she could not sign it.

On cross examination he testified that there was a lot of visitors there; that Zacarias was not there; that Paez and Tabora were there; that he had told Tomasa that the second will was exactly like the first.

During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There is nothing in their testimony, however, which in our opinion is important.

In rebuttal Julia e la Cruz was called as a witness. She testified that she was 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 week of her illness; that Tomasa had made two wills; that she was present when the second one was executed; that a lawyer had drawn the will in the dining room and after it had been drawn and everything finished , it was taken to where Doña Tomasa was, for her signature; that it was taken to her by Anselmo Zacarias; that she was present at the time Tomasa signed the will that there were many other people present also; that she did not see Timoteo Paez there; that she saw Severo Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa that the second will was the same sa the first; that Tomasa asked her to help her to sit up and to put a pillow to her back when Zacarias gave her some paper or document and asked her to sign it; that she saw Tomasa take hold 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 what place on the document she signed; and that a notary public came the next morning; that Tomasa was able to move about in the bed; that she had seen Tomasa in the act of starting to write her signature when she told her to get her some water.

Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga Yap Caong and knew that she had made a will; that he saw the will at the time it was written; that he saw Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa to sign the will; that Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the will on a table near the bed; that the table was outside the curtain or screen and near the entrance to the room where Tomasa was lying.

Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions; that Tomasa had said that she sign the will; that the will was on a table near the bed of Tomasa; that Tomasa, from where she was lying in the bed, could seethe table where the witnesses had signed the will.

During the rehearing certain other witnesses were also examined; in our opinion, however, it is necessary to quote from them for the reason that their testimony in no way 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 will and testament of Tomasa Elizaga Yap Caong, which was attached to the record and marked Exhibit A was the last will 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 the protestants appealed to this court, and made the following assignments of error:

I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa Yap Caong, without the intervention of any external influence on the part of other persons.

II. The court erred in declaring that the testator had clear knowledge and knew what she was doing at the time of signing the will.

III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the first will, Exhibit 1, is identical with that which appears in the second will, Exhibit A.

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IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the law.

With reference to the first assignment of error, to wit, that undue influence was brought to bear upon Tomasa Elizaga Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower 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 witnesses testified that the brother of Tomasa, one Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the other hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of the execution of the will, to influence her mind in any way. The lower court having had an opportunity to see, to hear, and to note the witnesses during their examination reached the conclusion that a preponderance of the evidence showed that no undue influence had been used. we find no good reason in the record for reversing his conclusions upon that question.

With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of sound mind and memory at the time of the execution of the will, we find the same conflict in the declarations of the witnesses which we found with 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 twenty-four hours before the execution of the will in question (Exhibit A). Several witnesses testified that at the time the will was presented to her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the will in her possession for ten or fifteen minutes and finally signed it. The lower court found that there was a preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap Caong was of sound mind and memory and in the possession of her faculties at the time she signed this will. In view of the conflict in the testimony of the witnesses and the finding of the lower court, we do not feel justified in reversing his conclusions upon that question.

With reference to the third assignment of error, to wit, that the lower court committed an error in declaring that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is identical with that which appears in the second will (August 11, 1909, Exhibit A), it may be said:

First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1), was not the question presented to the court. The question presented was whether or not she had duly executed the will of August 11, 1909 (Exhibit A).

Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6, 1909. Several witnesses testified to that fact. The mere fact, however, that she executed a former will is no proof that she did not execute a later will. She had a perfect right, by will, to dispose of her property, in accordance with 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 wills and to make a new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way sustain the charge that she did not make the new will.

Third. In said third assignment of error there is involved in the statement that "The signature of Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in her second will (Exhibit A)" the inference that she had not signed the second will 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 witnesses testified that they saw her write the name "Tomasa." One of the witnesses testified that she had written her full name. We are of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name tot he will, with the intention to sign the same, that the will amount to a signature. It has been held time and time again that one who makes a will may sign the same by using a mark, the name having

been written by others. If writing a mark simply upon a will is sufficient indication of the intention of the person to make and execute a will, 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 will. (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; Main 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, which was known 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 was found in her room, wholly in her handwriting, written with 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 make certain disposition of her property. The will was presented for probate. The probation was opposed upon the ground that the same did not contain the signature of the deceased. That was the only question presented to the court, whether the signature, in the form above indicated, was a sufficient signature to constitute said paper the last will and testament of Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In deciding that question, Justice Mitchell said:

The precise case of a signature by the first name only, does not appear to have arisen either in England or the United States; but the principle on which the decisions already referred to were based, especially those in 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 what constitutes a binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.), 446.)

The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held to "sign" as effectually as if he had written his initials or his full name. It would seem to be sufficient, under the law requiring a signature by the person making a will, to make his mark, to place his initials or all or any part of his name thereon. In the present case we think the proof shows, 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 which was preceded is sufficient to answer 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 witnesses 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 was made to show that the will was signed by the witnesses in one room and by Tomasa in another. A plan of the room or rooms in which the will was signed was presented as proof and it was shown that there was but one room; that one part of the room was one or two steps below the floor of the other; that the table on which the witnesses signed the will was located upon the lower floor of the room. It was also shown that from the bed in which Tomasa was lying, it was possible for her to see the table on which the witnesses signed the will. While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the witnesses must sign in the presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they desire to see, may see the signatures placed upon the will.

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In cases like the present where there is so much conflict in the proof, it is very difficult for the courts to reach conclusions that are absolutely free from doubt. Great weight must be given by appellate courts who do not see or hear the witnesses, to the conclusions of the trial courts who had that opportunity.

Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all her faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court admitting said will to probate is hereby affirmed with 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 Manila admitting to probate a document alleged to be the last will and testament of the deceased Mariano 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 wife Maximina Ong that he is the son of the deceased.

In his answer to the petition for probate he alleges, in substance, that the will 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 will he was 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 showing that the testator acted under duress or undue influence and the only question of fact which we need consider is whether the testator was of sound and disposing mind when the document in question was executed.

Upon this point the testimony of Dr. Tee Han Kee, the attending physician, as a witness for the opposition, is to the effect that the deceased was 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 will is alleged to have been executed in the forenoon of the same day. Counsel for the appellant, in his well-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 will. There are, however, 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 witness, who 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, when the doctor again visited him, he was in "the same state of coma." Maximina Ong, the wife of the opponent, the only other witness for the opposition, states that on December 26th the deceased could not talk and did not recognize anyone. But all the witnesses presented by the petitioner, five in number, testify that the deceased was conscious, could hear and understand what was said to him and was able to indicate his desires. Four of these witnesses state that he could

speak distinctly; the fifth, Velhagen, says that the deceased only moved his head in answer to questions.

That the deceased was in an exceedingly feeble condition at the time the will was executed is evident, but if the witnesses presented in support of the petition told the truth there can be no doubt that he was of sound mind and capable of making his will. And we see no reason to discredit any of these witnesses; the discrepancies found between their respective versions of what took place at the execution of the document are comparatively unimportant and so far from weakening their testimony rather lend strength to it by indicating the absence of any conspiracy among them.

As against their testimony we have only the testimony of Maximina Ong and Dr. Tee Han Kee. The former is not a disinterested witness. 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 witnesses whose testimony does not in itself seem unreasonable.

There is no direct evidence in the record showing 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 will to probate without proof of such publication. This question not having been raised in the court below will not be considered here.

Section 630 of the Code of Civil Procedure, speaking of hearings for the probate of wills, also provides that "At the hearing all testimony shall be taken under oath, reduced to writing and signed by the witnesses" and the appellant maintains that the transcript of the testimony of the witness Dr. N. M. Saleeby, not having been signed by the witness, 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, with the costs against the appellant. So ordered.

Araullo, C. J., Street, 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. Antonio Constantino, for appellee.

 

TORRES, J.:

This appeal was raised by counsel for Santiago Galvez from the judgment of October 25, 1910, whereby the Honorable Simplicio del Rosario, judge, denied the petition presented by the said Galvez for the probate of the will, 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.

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Counsel for Santiago Galvez petitioned the Court of First Intance of Bulacan for the probate of the will which it was alleged Victor Galvez executed in the dialect of the province, on August 12, 1910, in presence of the witnesses Juan Dimanlig, J. Leoquinco, and Nazaria Galvez. This instrument appears also to have been signed by the witness Lorenzo Galvez, below the name and 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 written in Tagalog and executed on the same date by Victor Galvez in presence of the witnesses Cirilo Paguia, Florentino Sison, and Juan Menodoza.

In the course of the proceedings various witnesses 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 waived the right to present evidence and acquiesced in the petition made by Santiago Galvez for the probate of the will, in view of a transaction entered into by the parties; but the court did not accept the compromise, on the ground that it is improper to hold that a will is the faithful expression of the last wishes of a decedent, upon the mere fact of the parties' petitioning to that effect, when such will, as in the case at bar, was assailed at the commencement of the suit.

After due trial the judgment aforementioned was rendered, from which an appeal was entered by counsel for the petitioner, Santiago Galvez.

This case deals with the probate of the second will executed by Victor Galvez on August 12, 1910, and signed in his presence by the witness Juan Dimanlig, Nazaria Galvez and J. Leoquinco, and, as the testator was no longer able to sign on account of his sickness, Lorenzo Galvez, at his request, affixed his own signature to the instrument, for him and below his written name. This will, written 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 will, written in Tagalog and marked Exhibit A, was presented during the proceedings; it was the first one the testator executed on the same date, and, for the purpose of correcting an error contained in this first will, he executed another will, the second, which is the one exhibited for probate.

Notwithstanding the opposition by Canuta Galvez, the testator's daughter, who alleged that her father, owing to his very serious sickness with cholera, lacked the intellectual capacity and clear judgment requisite for making a will, and notwithstanding her testimony adduced in corroboration of her brief, the record sufficiently proved the contrary; the subscribing witnesses to the will affirmed under oath that they were present when Victor Galvez, then sick in his house, stated to them that the document read before them by Lorenzo Galvez contained his last will and testament, and that, as the testator was no longer able to sign, he charged his nephew Lorenzo to do so in his stead, which he latter did by affixing his own signature to the document, after having written at the foot of the same the name and surname of the testator, Victor Galvez, who as these witnesses observed, was of sound mind and in the full enjoyment of his mental faculties; he talked intelligently and with perfect knowledge of what was taking place. They further testified that they all, including the said Lorenzo Galvez, signed the will in the presence of the testator, Victor Galvez, who was at the time lying on his bed.

In order to hold that Victor Galvez, on account of serious sickness, was not then of sound mind and did not have full knowledge of his acts and, therefore, was incapable to execute a will, 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 will in the presence of the witnesses whose signatures appear at the foot thereof, for these witnesses capacity positively affirmed that Victor Galvez, on executing his will showed that he was in full possession of his intellectual faculties and was perfectly cognizant of his acts.

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 which to predicate incapacity, for the reason that he did not examine Victor Galvez, nor did he even see him between the hours of 12 in the morning and 3 in the afternoon of the 12th of August, 1910, during which period the testator ordered his will drawn up and the attesting witnesses signed 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 witness; but there may be exceptions to the general rule, and to judge from the testimony of the witnesses who saw and communicated with the patient Victor Galvez at the time he executed his will, 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 will in accordance with the requirements of the law.1awphi1.net

Besides the attestation of the aforesaid subscribing witnesses, the contents of the will and the testator's positive determination to rectify the error he incurred in the execution of his first will, show that Victor Galvez was in his sound mind and was perfectly aware 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 will (Exhibit B), signed in the name of the testator by Lorenzo Galvez and the witnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, the formalities prescribed by section 618 of the Code of Civil Procedure were observed, for the testator's name appears written at the foot of the will and under this name Lorenzo Galvez signed by direction of the testator himself, and the instrument was also signed by the attesting witnesses before mentioned who affirmed that they heard and attested the dispositions made by the testator and witnessed the reading of the will, that they were present when the said Lorenzo Galvez signed the will 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 will, did so with a sound mind and the full use of his mental faculties; therefore, the will must be admitted to probate.

For the foregoing reasons, with a reversal of the judgment appealed from in so far as it denies the probate of the said will, we hereby hold that the same was duly executed by Victor Galvez and expresses his last wishes, and we 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., dissents.

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, with 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 Marcos Jaojoco for the price of P4,000 which the seller admitted having received. Nine days

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afterwards Adriana Carrillo was 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 Miguela Carrillo was appointed judicial administratrix of said estate. In her capacity as such administratrix, Miguela Carrillo now brings this action for the annulment of said contract of sale executed by Adriana Carrillo on December 9, 1918, against Marcos Jaojoco, the purchaser, and his father Justiniano Jaojoco. The defendants were 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 which indicated that she was 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 was 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 showing to her motive for entering said institutions, for while it is true that insane persons are confined in those institutions, yet there also enter persons who 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 while 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 was 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 with the same diligence as any other person of knowingly sound mind would have done. Documents, were introduced which 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 with 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 which she was administratrix, and in fact continued acting as such administratrix of the estate of her husband until August, 1917, when 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 with hemiplegia, and there she was 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 answered that he did not pay attention to it, but that he could affirm that the answers she gave him were 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, Mr. Ramos Salinas, and there executed the contract of sale in question on the 9th of that month. The notary, Mr. Salinas, who authorized the document, testified that on that day he has been for some time with Adriana Carrillo, waiting for one of the witnesses to the document, and he did not notice anything abnormal in her countenance, which on the contrary, appeared to him dignified, answering correctly all the questions he made to her without inconsistencies or failure of memory, for which reason, says this witness, he was surprised when afterwards he learned that the mental capacity of Adriana Carrillo was in question.

It must be noted that the principal witness for the plaintiff and the most interested party in the case, being the plaintiff herself, was the surety of Adriana Carrillo when the latter was appointed judicial administratrix of the estate of her husband in 1917. It cannot be understood, if Adriana Carrillo was in that time mentally incapacitated, why Miguela Carrillo, the plaintiff, who knew it, consented to be a surety for her. It must likewise be noted that the other witnesses of the plaintiff, who testified to the incapacity of Adriana Carrillo, also made transactions with her precisely at the time, when according to them, she was mentally incapacitated. In view of all of this, which is proven by documents and the testimonies of witnesses completely disinterested in the case, it

cannot be held that on December 9, 1918, when Adriana Carrillo signed the document, she was mentally incapacitated.

The fact that nine days after the execution of the contract, Adriana Carrillo was declared mentally incapacitated by the trial court does not prove that she was 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 was that of being mentally capable, and consequently the burden of proof that she was mentally incapacitated at a specified time is upon him who affirms said incapacity. If no sufficient proof to this effect is presented, her capacity must be presumed.

Attention is also called to the disproportion between the price of the sale and the real value of the land sold. The evidence, however, rather shows that the price of P4,000 paid for the land, which contained an area of 33 hectares, represents it real value, for its is little more than P100 per hectare, which 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 was mentally incapacitated for having made the sale under such conditions. Marcos Jaojoco is a nephew of Adriana Carrillo, and Justiniano Jaojoco her brother-in-law, and both defendants, who 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 was there, and for such acts they may have won 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 will, these lands to the defendants.

The judgment appealed from is affirmed with costs against the appellant. So ordered.

Araullo, C.J., Street, Malcolm, Ostrand, 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 will executed by Doña Juana Espinosa, widow of Don Pedro Hernaez, on December 5, 1894, in Bacolod, Island of Negros, before a notary public, and three witnesses, and with the aid of an interpreter, the testatrix not understanding Spanish. In this will the principal dispositions are those relative to the legacy of the third part of the hereditary estate of free disposal, which 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, Magdalena, Mateo, and Eulalio Hernaez y Espinosa, and her two 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 Magdalena Hernaez y Espinosa nor

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Peregrina and Victorina Parapa y Hernaez, whose consent plaintiff sought to obtain.

The action brought is for the annulment of the will upon the ground: (1) of the incapacity of the testatrix; (2) the incapacity of the notary, attesting witnesses, and the interpreter; and (3) a substantial formal defect in the will.

The incapacity of the testatrix according to the complaint is alleged to consist in this: That on the 5th of December, 1894, she was over 80 years of age and was so ill that three days before she had received the sacraments and extreme unction, and that two days afterwards 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 witnesses is supposed to consist in their not having a perfect knowledge of Spanish, and the incapacity of the interpreter in that he was an amaneunsis of the notary and was the person who wrote out the will. The substantial formal defect of the will is supposed to consist in the fact that two physicians were not present to certify to the sanity of the testatrix at the time of its execution, and the absence of two interpreters to translate the will, because executed in a foreign language.

These are briefly, the grounds upon which the action for the annulment of the will rests, and these were the issues raised at 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 following facts: That the testatrix on the 5th day of December, 1894, was so ill that she could not speak; that by reason of her age she walked in a stooping position and gave contradictory orders. The priest who was with her during the last hours of her life was 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 was at that time so seriously ill that he scarcely understood her when she spoke. The expert witnesses were 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 mortis?" The result of the oral evidence is that the testimony of the four witnesses called has proven one fact, which is, that the testatrix toward the end of her life walked in a stooping position. The first witness, Isidora de la Torre, affirmed that three days before her death she was very ill but answered questions which were addressed her, and only one witness, 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 was suffering from fainting fits, this witness being the only one who testified that the testatrix had given contrary order. These four witnesses 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 will but was unable to remember the day; that he understood her then when she spoke and that the testatrix frequently confessed even when not feeling seriously ill, and that when sick she was accustomed to confess in her house (this point is confirmed by the witness 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 when he confessed her some days before the execution of the will he had also administered the extreme unction on account of her advanced age; that at that time she was in the enjoyment of her mental faculties but the witness could not state whether she preserved them up to the moment of her death, he not being present when this occurred. The expert evidence introduced by the testimony of Dr. Lope de la Rama gave the following result: That if the organs are intact the physiological functions are perfectly performed, and that consequently some men before reaching the age of decrepitude lose their mental faculties by the weakening of the brain, either as the result of illness or of abuses, while 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) shows that the testatrix did not die two days after the execution of her will. 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 interrogatories nor the documents presented with the complaint can the conclusion be reached that the testatrix was deprived of her mental faculties. The fact that on old woman gives contradictory orders, that she walks in a stooping position, that she has fainting fits, that she received the sacraments some days before making her will, are circumstances which even if fully demonstrated by proof could no lead the court to establish a conclusion contrary to the mental soundness of a person who is to be presumed to be in the full enjoyment of the mental faculties until the contrary is conclusively proven. The notary in compliance with 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 will. "The Code might have adopted either one of two systems [with 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 weakness in the absence of proof that the act was performed while the mental faculties were in their normal condition. Under the first presumption a will made should be declared valid in all cases, in the absence of evidence to the contrary. Under the second it would have to be considered as void upon the presumption that it was executed by a person demented, unless the contrary is shown. The Code has adopted the first system as being the most rational, by accepting the principle that mental soundness is always 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 witnesses constitutes a true guaranty of the capacity of the testator, by reason of their knowledge of 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 with the dialect of the party executing the same. If this officer, upon whom the law imposes the obligation of drawing the instrument in the official language, that is, Castilian, does not know the dialect he can avail himself of an interpreter in accordance with the provisions of the law itself; hence the fact that the notary who legalized the will 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 with the dialect or dialects of the locality in which 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 which they testified at the trial, "without the necessity of an interpreter," as to those called as witnesses and by conclusive evidence as to the deceased attesting witness whose signature and competency have been completely established, that they knew the dialect of the testatrix in accordance with section 5, article 681, of the Civil Code, and also understood Spanish. As alleged, but not proven, their knowledge of 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 whose services the notary availed himself for the execution, drafting and legalization of the will, 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 two physicians, as required in the case covered by article 665, was not necessary. "This precept refers clearly and expressly to the conditions which must be complied with in order that a demented person may make a will by availing himself of a lucid interval, and is entirely distinct from the cases governed by article 685 when the testator has not been declared demented." (Judgment of June 10, 1897.)

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Had anyone observed any incapacity in the testatrix some time before it would have been easy to have taken the proper steps to obtain a declaration of the status of incapacity in accordance with the provisions of the Civil Code, and then, after a legal declaration of this condition, she could not have executed a will unless two physicians had certified that at the time of her examination she was in the enjoyment of a lucid interval; but there was no necessity of waiting for a lucid interval when the constant condition was that of lucidity.

Nor was it necessary that two interpreters be present as required by article 648 of the Civil Code. This is a requisite for the execution of a will in a foreign language, and neither by the letter nor by the purpose of this article could it be required with regard to the will 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 within the purpose of the law. "The prior laws had not provided for the execution of a will by a foreigner in his own language. Such a case could not arise under the old law because the right to make a will being one inherent in citizenship they systematically denied to the foreigner the exercise of that right. The execution of a will being at the present time based upon natural right, the foreigner is entitled equally with the citizen to make a will. Although it is true that foreigners, under international law, can make a will before the consuls of their nation, it is none the less true that they do not always make their wills in a town in which an accredited consul resides. For all these reasons it was necessary to provide by law for a special form for the will of the foreigner who might be ignorant of the Spanish language and yet have occasion to make a will. The form which the law has adopted satisfies the most exigent spirit, for the presence of two interpreters, the fact that the will is recorded in a public instrument in both languages, and that it is signed by all who take part in the act are the most efficacious guarantees against fraud and bad faith." (Falcon, 3 Civil Code, p. 94.) Text writers discuss the application of article 684 to a will 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 which Castilian is the tongue spoken or understood; but we have no occasion to enter into this discussion, the legal sense and constant practice observed in these Islands being sufficient.

Upon these grounds we hold that judgment must be for the defendant, declaring the will executed by Doña Juana Espinosa on the 5th of December, 1894, to be valid and efficacious, without 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 Manila, for the recovery of one-half (½) of the property mentioned and described therein, which had been left by their deceased father, Severo Neyra, and which had been previously divided equally between the two extrajudicially, demanding at the same time one-half (½) of the rents collected on the said property by the defendant Encarnacion Neyra. The defendant filed an answer admitting that the property mentioned and described therein was community property, and at the same time set up counterclaims amounting to over 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 was 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 Manila, alleging several errors, attacking the execution and validity of said agreement; and on November 10, 1942, said appeal was dismissed, pursuant to the to an agreement or compromise entered into by the parties, as shown by the corresponding document, dated November 3, 1942, which was filed in the case the following day, November 4, 1942.

In the meanwhile, Encarnacion Neyra, who had been sickly for about two years, unexpectedly died, on November 4, 1942 at the age of 48, allegedly from heart attack, as a consequence of Addison's disease from which, it was 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, who 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 was already then at the threshold of death, and that as a matter of fact she died the following day; and that if it had been signed at all by said Encarnacion Neyra, her thumbmark appearing on said document must have been affixed thereto by Trinidad Neyra's attorney, against Encarnacion's will; and that the court had no more jurisdiction over the case, when the alleged agreement was filed on November 4, 1942, at the instance of Trinidad Neyra, as Encarnacion was already dead at the time.

The principal question to be decided, in connection with said petition for reconsideration, is whether 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 following facts:

That Severo Nayra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two 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 two sisters, Encarnacion Neyra and Trinidad Neyra, had serious misunderstandings, in connection with the properties left by their deceased father, and so serious were their dissensions that, after March 31, 1939, they had two litigations in the Court of First Instance of Manila, concerning said properties. In the first case, filed in March 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, Manila which was 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, who had remained single, and who had no longer any ascendants, executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the "Congregacion de Religiosas de la Virgen Maria" and her other relatives, named Teodora Neyra, Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will, in favor of her only sister of the whole blood, Trinidad Neyra, who 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 was duly communicated to her; that in order to

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overcome the difficulties encountered by said religious organization in not accepting the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that purpose, about one week before her death, sent for Atty. Ricardo Sikat, and gave him instructions for the preparation of a new will; that Atty. Sikat, instead of preparing a new will, merely prepared a draft of a codicil, amending said will, dated September 14, 1939, again naming said religious organization, among others as beneficiary, and said draft of a codicil was also forwarded to the authorities of religious organization, for their consideration and acceptance; but it was also rejected.

In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's disease, and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of the Quiapo Church to make confession, after which she requested that holy mass be celebrated in her house at No. 366 Raon Street, City of Manila, so that she might take holy communion; that Mons. Fernandez caused the necessary arrangements to be made, and, as a matter of fact, on November 1, 1942, holy mass was solemnized in her house by Father Teodoro Garcia, also of the Quiapo Church, on which occasion, Encarnacion Neyra, who remained in bed, took holy communion; that after the mass, Father Garcia talked to Encarnacion Neyra and advised reconciliation between the two sisters, Encarnacion and Trinidad Neyra. Encarnacion accepted said advise and, at about noon of the same day (November 1, 1942), sent Eustaquio Mendoza to fetch her sister Trinidad, who came at about 2:30 that same afternoon; that the two sisters greeted each other in most affectionate manner, and became reconciled and two had a long and cordial conversation, in the course of which they also talked about the properties left by their father and their litigations which had reached the Court of Appeals for the City of Manila, 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 waive her share in the rents of said property collected by Encarnacion, and the Trinidad had no more indebtedness to Encarnacion. 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 following day, November 2, 1942, when Encarnacion gave him instructions for the preparation of the document embodying their agreement, and other instructions for the preparation of her last will and testament; that Attorney Panis prepared said document of compromise as well as the new will and testament, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to Encarnacion's express instructions, and the two documents were prepared, in duplicate, and were ready for signature, since the morning of November 3, 1942; that in the afternoon of that day, of compromise and last will and testament to Encarnacion Neyra, slowly and in a loud voice, in the presence of Father Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, Trinidad Neyra, and others, after which he asked her if their terms were in accordance with her wishes, or if she wanted any change made in said documents; that Encarnacion Neyra did not suggest any change, and asked for the pad and the two documents, and, with the help of a son of Trinidad, placed her thumbmark at the foot of each one of the two documents, in duplicate, on her bed in the sala, in the presence of attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa and Atty. Alejandro M. Panis, after which said witnesses signed at the foot of the will, 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 Mendoza, a protege, as witnesses.

Father Teodoro Garcia was also present at the signing of the two documents, at the request of Encarnacion Neyra.

The foregoing facts have been established by the witnesses presented by Trinidad Neyra, who are all trustworthy men, and who had absolutely no interest in the final outcome of this case. Two of them are ministers of the Gospel, while three of the attesting witnesses are professional men of irreproachable character, who had known 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 Maria Jacobo Vda. de Blanco, substantially corroborated the testimony of the witnesses presented by Trinidad Neyra, with reference to the signing 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, however, that when the thumbmark of Encarnacion Neyra was affixed to the agreement in question, dated November 3, 1942, she was sleeping on her bed in the sala; and that the attesting witnesses were not present, as they were 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 was affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra and one Ildefonso del Barrio, when Encarnacion was 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, while others die after a few weeks 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 Medicine, 3d ed., 1935, pp. 1250-1253; McCrae, Osler's Modern Medicine, 3d ed., Vol. V, pp. 272-279.)

And it has been conclusively shown that Encarnacion Neyra died on November 4, 1942, due to a heart attack, at the age of 48, after an illness of about two (2) years.

In connection with mental capacity, in several cases, this court has considered the testimony of witnesses, who had known and talked to the testators, more trustworthy than the testimony of the alleged medical experts.

Insomnia, in spite of the testimony of two doctors, who testified for the opponents to the probate of a will, 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 was held to have been compos mentis, in spite of the physician's testimony to the contrary, to the effect that she was 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 was suffering from diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses that he was conscious and able to understand what was 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 will (Amata and Almojuelavs. Tablizo, 48 Phil., 485.)

Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and intelligibly conversed with 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 was in a perfectly sound mental condition at the time of the execution of the will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)

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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 showing that the testatrix was really of sound mind, at the time of signing and execution of the agreement and will 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 was of sound mind and possessed the necessary testamentary and mental capacity, at the time of the execution of the agreement and will, dated November 3, 1942.

The contention that the attesting witnesses were not present, at the time Encarnacion Neyra thumbmarked the agreement and will in question, on her bed, in the sala of the house, as they were allegedly in the caida, is untenable. It has been fully shown that said witnesses were present, at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other at the time of the signing of the documents, but whether they might have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it all in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the agreement and will 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 witnesses are all interested parties, as they are children of legatees named in the will, dated September 14, 1939, but eliminated from the will, dated November 3, 1942.

Furthermore, the testimony of Teodora Neyra and her witnesses, to the effect that there could have been no reconciliation between the two sisters, and that the thumbmark of Encarnacion Neyra was affixed to the documents embodying the agreement, while she was sleeping, on November 3, 1942, in their presence; and that her thumbmark was affixed to the will in question, when she was already dead, in the morning of November 4, 1942, within 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 witnesses 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. Mauricio, 53 Phil., 728, 735.)

To show the alleged improbability of reconciliation, and the execution of the two documents, dated November 3, 1942, petitioners have erroneously placed great emphasis on the fact that, up to October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were 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 was a religious woman instructed in the ancient virtues of the Christian faith, and hope and charity, and that to forgive is a divine attribute. They had also forgotten that there could be no more sublime love than that embalmed in tears, as in the case of a reconciliation.

It was most natural that there should have been reconciliation between the two sisters, Encarnacion and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole 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 always brought her happiness, and

that she had always been just to her sister, who had been demanding insistently what was her due, Encarnacion finally decided upon reconciliation, as she did not want to go to her eternal rest, with hatred in her heart or wrath upon her head. It was, therefore, most logical that Encarnacion should make Trinidad the benificiary of her generosity, under her last will and testament, and end all her troubles with her, by executing said agreement, and thus depart in perfect peace from the scenes of her earthly labors.

It having been shown 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 trustworthy witnesses, and that she was compos mentis 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, who had been dead since November 4, 1942, and some of her relatives, who have appeared, in accordance with 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 Manila, dated November 10, 1942, dismissing the appeal, is hereby re-affirmed, without costs. So ordered.

Ozaeta, Perfecto, 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 representacion de los apelantes.Sres. Diaz y Lazaro en representacion 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 (Expediente No. 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 excepto Jose, 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.

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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 expediente No. 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 otorgase como 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 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)

RAMIREZ VS RAMIREZ

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 oppositor-appellant Fortunato Borromeo.Crispen Baizas and Associates for heirs oppositors-appellants Tomas Borromeo and Amelia Borromeo.Office of the Solicitor General for intervenor oppositor-appellant Republic.Miguel Cuenco and Fernando S. Ruiz for heirs oppositors-appellants Crispin Borromeo, Teofilo Borromeo, et al.Filiberto Leonardo for petitioner-appellee.

DIZON, J.:

Vito Borromeo, a widower and permanent resident of the City of Cebu, died on March 13, 1952, in Parañaque, Rizal, at the age of 88 years, without forced heirs but leaving extensive properties in the province of Cebu.

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On April 19 of the same year, Jose H. Junquera, filed with the Court of First Instance of said province a petition for the probate of a one page document as the last will left by said deceased, devising all his properties to Tomas, Fortunato and 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" — was dated May 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 witnesses. 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 following grounds: (1) that the formalities required by law had not been complied with; (2) that the testator was mentally incapable of making a will at the time of its execution; (3) that the will was procured by undue and improper influence, on the part of the beneficiaries and/or some other person; (4) that the signature of the testator was procured by fraud; and (5) that the testator acted by mistake or did not intend the instrument he signed to be his will 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 own opposition to the probate of the will, on the ground that the signature "Vito Borromeo" appearing thereon was a forgery. Other oppositions were subsequently filed by Patrocinio Borromeo de Tabotabo (her opposition was later withdrawn), Lilia Morre de Tabotabo, Lamberto Morre, Patricia Morre de Ranario, Aurora Morre de Borromeo, Ramon Ocampo, Isagani Morre and Rosario Morre, invoking substantially the same grounds mentioned heretofore.

Meanwhile, 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 with 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 will, on the ground that, should the estate be adjudicated the latter by intestacy, it stood to collect a considerable amount by way of estate and inheritance taxes. In its order of December 10 of the same year, the Court allowed the intervention.

After a prolonged trial, on May 28, 1960, the Court rendered a decision denying the probate of the will and declaring itself without jurisdiction to pass upon the question of ownership over the thirteen lots which the Cebu Arcade etc. claimed as its own. All the parties appealed — the proponents of the will from the portion of the decision denying probate, and the oppositors and the Republic of the Philippines, from that portion thereof where the court refused to decide the question of ownership of the thirteen lots already mentioned.

The proponents of the disputed will, mainly with the testimony of the three attesting witnesses, Cornelio Gandionco, Filiberto Leonardo and Eusebio Cabiluna, sought to prove the following facts:

In the morning of May 17, 1945, Tomas Borromeo, complying with the request of Vito Borromeo, went to the house of Atty. Filiberto Leonardo to request him to be a witness at the execution of the latter's last will. Dr. Cornelio Gandionco, who at the time happened to be in the house of Leonardo, was likewise requested to act as such. Together, the three went to the residence of Vito Borromeo at Ramos Street, Cebu City. Upon their arrival the third witness, Eusebio Cabiluna, who was living on the ground floor of the house, was asked to come upstairs. Thereafter, in their presence, Vito Borromeo executed first, the document Exhibit "F" (deed of confirmation of an alleged previous sale to Cebu Arcade Company, T. L. Borromeo y Cia.) witnessed by Gandionco and Cabiluna. Later, Vito Borromeo, being of sound and disposing mind, and without pressure or influence exerted on him, dictated the substance of his will to Tomas Borromeo, who in turn typewrote it in proper legal language. The document was then read by Vito Borromeo, who later signed and thumbmarked it (Exhibit "A") and carbon copies thereof (Exhibits "E" and "K") in the presence of the attesting witnesses, who, in turn, signed the will 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 who was the confessor of Vito Borromeo from 1942 to 1946, the Rev. Fr. Sergio Alfafara, who was his confessor from 1946 to 1947, and Vicenta Mañacap, a mid-wife who lived in the testator's house and had served him from May 1945 up to his death on March 30, 1952 on the witness stand. The gist of their testimony is to the effect that at the time of the execution of the will, Vito Borromeo was still strong and could move around freely with the aid of a cane; that he was still mentally alert and was a man of strong will; that his right hand was unimpaired and he could write with it unaided; that as a matter of fact — according to Vicenta Mañacap — he still wrote personal letters to Tomas Borromeo, could eat by himself and even played the piano.

On the other hand, the oppositors presented several witnesses who testified that the signatures purporting to be those of Vito Borromeo on the document Exhibit "A" and its copies were forgeries; that they were too good and too perfect signatures and, therefore, quite impossible for the deceased — an ailing man already 82 years old on May 17, 1945 — to write; 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. Max Borromeo and Dr. Cornelio Gandionco; that Vito Borromeo's usual signatures during his better days had always been characterized by certain flourishes, technically called "rubric"; that Vito Borromeo had also reared and educated two of the oppositors, Crispin Borromeo and the late Teofilo Borromeo and there was no conceivable reason why they were left out in the will, if any such will had really been made by him knowingly; that the testamentary witness Cornelio Gandionco, is a nephew of the other witness, Filiberto Leonardo, and was 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, who admittedly grew up and was reared by Vito Borromeo and his wife Juliana Evangelista since he was barely three months; that Amelia Borromeo, the third instituted heir, is a younger sister of Tomas Borromeo and dependent upon him; that on May 17, 1945, the deceased's leprosy was so far advanced that the fingers of his right hand were already hardened and atrophied, this making it difficult, if not impossible, for him to write; and that on the same date, his sense of hearing and his eyesight had been considerably impaired, his eyes being always watery due to the progress of his leprosy.

The oppositors also presented Felipe Logan of the National Bureau of Investigation and Jose G. Villanueva, as handwriting experts, who testified, after examining the supposed signatures of the deceased in Exhibit "A" and comparing them with his accepted standard signatures, that the questioned signatures were forgeries. The proponents, however, presented their own handwriting expert, Martin Ramos, who testified to the contrary.

The trial court refused to believe the testimony of the attesting witnesses and, as a result, denied the petition for probate,

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because, in its opinion, they appeared not to be "wholly disinterested persons" and because of the serious discrepancies in their testimonies with 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 was 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 written. Thus, the court was 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 will.

It seems clear, therefore, that the main issue to be decided in the present appeal is whether or not the evidence of record is sufficient to prove the due execution of the will in question.1äwphï1.ñët

It must be conceded that in this jurisdiction, the subscribing witnesses to a contested will are regarded as the best witnesses in connection with its due execution. It is similarly true, however, that to deserve full credit, their test, testimony must be reasonable and unbiased, and that, as in the case of any other witness, 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 weight 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 weight to, or misconstrued the testimony of particular witnesses, the reason for this being that the trial judge had full opportunity to hear and observe the conduct and demeanor of the witnesses while testifying and was consequently in a better position than the reviewing court to determine the question of their credibility. While this is not applicable to the present case because His Honor, the judge who penned the appealed decision was not the same judge before whom the evidence of the parties was presented, it must be stated that, judging from the carefully written decision under review, it was only after a thorough study of the record that His Honor arrived at the conclusion that the subscribing witnesses do not appear to be wholly disinterested persons.

On the matter of the number of copies made of the questioned will allegedly signed by the testator and the three subscribing witnesses, His Honor found that Cabiluna was very uncertain and confused; that a certain stage of his examination, he said that only two copies of the will were prepared — the original and one carbon copy — while at another stage he affirmed that he did not know whether or not there was a duplicate and that all he could say was that he had affixed his signature three times (Transcript, Marquiala, August 22, 1958, pp. 49-50). In truth, however, he really signed six (6) times — twice on the original and twice on each of the two copies. Adding confusion to the situation is the answer he gave when he was asked if Vito Borromeo also signed the carbon copy, to which his answer was "I did not see" (Idem., p. 50).

On the other hand, the other subscribing witness, Atty. Filiberto Leonardo, testified categorically that there were only the original and one carbon copy of the will and that the testator and all the subscribing witnesses signed both (Transcript, Marquiala, December 23, 1953, pp. 167, 210, and 218). However, the naked and highly disturbing fact is that, contrary to what is inferable from the vacillating testimony of Cabiluna and the categorical assertion of Atty. Leonardo, the proponents of the questioned will themselves presented three copies of said will; 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 witnesses was given around eight years after the alleged execution of the questioned will, still we believe that the transaction in which 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 would it be for them to say something in open contradiction with the reality on the matter. If, as may be clearly deduced from their testimony — Cabiluna and Leonardo's — there was only the original and one copy signed by the testator and the subscribing witnesses, why is it that three — original and two copies — were really in existence and were produced in court during the trial?

In the case of the third subscribing witness, Dr. Cornelio Gandionco, the imputation was made by two witnesses, Dr. Teofilo Borromeo and Judge Crispin Borromeo, that he was the fiance of Angeles Borromeo, sister of Tomas Borromeo, who is one of the three heirs instituted in the questioned will, evidently to show that he is not a completely disinterested witness. The evidence to this effect appears to have remained unimpeached, although the proponents of the will could have done it by calling on Dr. Gandionco himself or on Angeles Borromeo to deny the imputation.

Moreover, the evidence also disclose that Dr. Gandionco was the uncle of the other subscribing witness, Atty. Leonardo, and that, in fact, they were living together at the time of the alleged execution of the will. This circumstance — apparently trivial — can not be taken lightly because in view of appellee's claim that Angeles Borromeo was the fiance of Dr. Gandionco, it would not be unreasonable to entertain the suspicion that both subscribing witnesses were not wholly disinterested. Material to this point is the fact established by the evidence that Atty. Leonardo was the notary public before whom the document Exhibit 4-A — which 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 — was supposedly acknowledged by the testator on the same date May 17, 1945.

In the light of the foregoing, We can not see our way clear to holding that the trial court erred in refusing to give full credit to the testimony of the three subscribing witnesses.

It has also been held that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may 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, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. For this reason, independently of the conflicting opinions expressed by the handwriting experts called to the witness stand by the parties, we have carefully examined and considered the physical appearance and condition of the original and two copies of the questioned will 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 written by him.

Upon the face of the original and two copies of the contested will (Exhibits A, E and K) appear a total of six alleged signatures of the testator. They are all well written along a practically straight line, without any visible sign of tremor or lack of firmness in the hand that wrote them. In fact, in the respects just adverted to, they appear better written than the unquestioned signatures, of attesting witnesses Gandionco and Cabiluna, inspite of the fact that on the date of the alleged execution of the will (May 17, 1945) the testator was considerably older and in a much poorer physical condition than they. According to the evidence, the testator was then a sick man, eighty-two years old, with the entire left half of his body paralyzed since six years before, while the oldest attesting witness (Cabiluna) was around sixty-five years of age and Leonardo and Gandionco were only forty-four and forty-five years old respectively, and were all in good health. Despite the obviously very poor physical condition of the testator, Leonardo claims that he signed the alleged will unaided, writing his name thereon slowly but continuously or without interruption, and that, on the same occasion, he signed his name several times not only on the original

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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, we agree with the lower court that Vito Borromeo could not have written the questioned signatures.

In view of what has been said heretofore, We find it unnecessary to examine and consider in detail the conflicting testimony of the handwriting experts presented by the parties: Martin Ramos by the proponents of the will, 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 with approval the following portion of the appealed decision:

What the Court finds to be a weakness in the conclusions of Martin Ramos, based on his comparative examination of the questioned and standard signatures of Vito Borromeo, is his apparent assumption that all the signatures were 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 when Vito Borromeo allegedly affixed those signatures on May 17, 1945 on Exhibits 'A', 'E', and 'K' the left portion of his body, including the left hand, was already paralyzed, and Vito Borromeo was represented to have written his name alone by himself and unaided. Maybe, if he was previously apprised of those circumstances, he would hesitate to make the conclusion that those flawless signatures reading Vito Borromeo, written straight and in a form as good as, if not better than, the signatures of three much younger attesting witnesses, were positively in the handwriting 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 toward the views of the other two experts witnesses, Felipe Logan and Jose G. Villanueva.

As stated at the outset, the contested will is claimed to have been signed and thumbmarked by the testator. An examination of the thumbmarks, however, readily shows that, as the lower 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 whatsoever". It is, therefore, obvious, that they are of little use 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 where the lower court declined to decide with finality the question of who owns the thirteen parcels of land subject-matter of the confirmatory sale Exhibit F-1 and whether 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, with 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 was denied by the lower court in its order of July 16, 1954, and the ruling was reiterated in the appealed decision "for the same reasons and considerations" upon which it rejected the probate of the will. The ruling on the matter, however, was expressly made provisional in nature.

We believe, and so hold, that the resolution of the lower court on this matter is correct because said court, acting in its capacity as a probate court, had no jurisdiction to determine with finality the question of ownership 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; Mallari vs. Mallari, L-4656, February 23, 1953; Garcia vs. Martin, G.R. No. L-

9233, June 29, 1957; Cordova vs. Ocampo, 73 Phil. 661; Pascual vs. Pascual, 73 Phil. 561 and others), except where a party merely prays for the inclusion or exclusion from the inventory of any particular property, in which case the probate court may pass upon provisionally, the question of inclusion or exclusion, but without prejudice to its final determination in an appropriate separate action (Garcia vs. Garcia, 67 Phil. 353; Marcelino vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144, 147).

In view of all the foregoing, the decision appealed from is affirmed, with costs.

Concepcion, C.J., Reyes, J.B.L., Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

SAMSON 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. Recto for petitioner and appellant.Reyes, Albert, Agcaoili and Raf. L. Arcega for petitioner and appellee.Emiliano Pamintuan and Felixberto M. Serrano for oppositors and appellants.

PARAS, C.J.:

On November 27, 1948, Manuel 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, Manolita Gonzales de Carungcong, and Juan Gonzales. The estate left by her is estimated at P150,000.

On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition (Special Proceeding No. 837) for the probate of an alleged will executed by the testatrix on November 16, 1942 (Exhibit B—Manuel Gonzales), devising to Manuel Gonzales the greater portion of the estate, without impairing the legitimes of the other children.

On December 31, 1948, Manolita G. de Carungcong filed in the same court a petition (Special Proceeding No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945 (Exhibit 1—Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the estate, without impairing the legitimes of the other children.

In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the wills executed on November 16, 1942, and May 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), with the result that her estate should be distributed as if she died intestate.

With the exception of Leopoldo Gonzales, 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 with the following dispositive pronouncements:

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All facts considered in the light of the evidence presented and in the manner in which the witnesses testified the court concludes and holds:

First:     That Exhibit B     —      Manuel Gonzales, though validly executed on November 16, 1942, was revoked by Exhibit 1—Manolita G. Carungcong in accordance with the provisions of section 623 of the Code of Civil Procedure.

Second:     That Exhibit 2     —      Alejandro and Juan Gonzales being executed without the knowledge 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     —      Manolita G. Carungcong having been executed in accordance with law the same is hereby declared as the true and last will and testament of the deceased Manuela Ibarra Viuda de Gonzales, and said will is hereby admitted probate.

From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan Gonzales have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to pay the proportionate share of the printing cost of the record on appeal.

In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of the following form and tenor:

IKALABING-DALAWA. Na ang aking HULING BILIN AT TESTAMENTONG ito ay binubuo ng PITONG (7) dahon o pagina na may bilang na sunud-sunod at ang bawa'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 Mayo ng taong 1945, na nakaharap dito sa ating paglagda o pagfirma ang tatlong saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat at bawa't dahon o pagina nitong testamento kong ito sa harap ng lahat at bawa't isang saksi o testigos at ang lahat at bawa't isa naman sa kanila ay nangagsilagda o nagsifirma din dito bilang saksi ko sa harap ko at sa harap ng lahat at bawa't isa sa kanila, at ganoon din silang mga saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa ng lahat at bawa't isa sa mga dahon o pagina nitong aking testamento.

(Sgd.) MANUELA Y. VDA. DE GONZALESMANUELA IBARRA VDA. DE GONZALES

Mga Saksi o Testigos:

(Sgd.) BIENVENIDO DE LOS REYES(Sgd.) TAHIMIK T. SAYOC(Sgd.) LUIS GAERLAN

It is contended for the appellants that this will 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 witnesses, and because it does not state the number of sheets or pages of the will.

In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R. No. L-3497, decided May, 1951 * we 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 will. Through Mr. Justice Bautista, we held:

The clause above quoted is the attestation clause referred to in the law which, in our opinion, substantially complies with its requirements. The only apparent anomaly we find is that it appears to be an attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly, however, is not in our opinion serious nor substantial as to affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures of the three instrumental witnesses.

Instrumental witnesses, as defined by Escriche in his Diccionario Razobada de Legislacion, y Jurisprudencia, Vol. 4, p. 1115, is on who takes part in the execution of an instrument or writing" (in re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator, shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause.

The attestation clause in question bears also similarity with the attestation clause in the will involved in Aldaba vs. Roque, (43 Phil., 378). In that case, the attestation clause formed part of the body of the will and its recital was made by the testatrix herself and was signed by her and by the three instrumental witnesses. In upholding the validity of the will, the court said:

In reality, it appears that it is the testatrix who makes the declaration about the points in the last paragraph of the will; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance with 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 who prepared the will had relied upon the ruling laid down in the case of Aldaba vs. Roque, supra, and that it would now be unfair to reject the present will when in its preparation a ruling of this Court has been followed." But the case at bar still falls within this view, the will (Exhibit 1—Manolita G. Carongcong) having been executed on May 5, 1945.

The attestation clause contained in the body of the will being thus valid, the statement in the penultimate paragraph of the will hereinabove quoted as to the number of sheets or pages used, is sufficient attestation which may be considered in conjunction with 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 will may be desirable, unsubstantial departure from the usual forms should be ignored, especially when the authenticity of the will is not assailed, as in this case.

The result reached in respect of the sufficiency of the will (Exhibit 1—Manolita G. Carongcong) necessarily disposes of the contention of the appellant Manuel Gonzales that the trial court erred in not admitting to probate the will (Exhibit B—Manuel Gonzales), since the latter will must be considered revoked by the subsequent will (Exhibit 1—Manolita G. Carongcong).

What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will (Exhibit 1—Manolita G. Carongcong) has been revoked by the testatrix in the instrument of November 18, 1948 (Exhibit 2—Alejandro and Juan Gonzales) which provides as follows:

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Ako, MANUEL YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa ciudad ng Rizal, may mahusay at wastong 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 pinawawalan 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 Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the testatrix lacked the testamentary capacity when she allegedly executed the instrument of revocation, and their contention was sustained by the trial court. We have examined the record and found no valid reason for reversing the finding of said court which had the benefit of observing and hearing the witnesses testify. Upon the other hand, the following 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 was taken to the hospital upon advice of the family physician, Dr. Jose C. Leveriza. In the letter introducing her to the hospital authorities (Exhibit E—Manuel Gonzales), Dr. Leveriza stated that the testatrix was suffering from hypertension and cerebral thrombosis. Particularly on November 18, 1948, when the alleged instrument of revocation was executed by her, the testatrix was in a comatose and unconscious state and could not talk or understand. The following 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 Manuela I. Vda. de Gonzales ya estaba en el hospital?—R. Me 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.

Sr. PAMINTUAN.—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 Manuela 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 Manuela 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, March 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 Mercy 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 paciente continuo empeorando hasta el dia 25 de noviembre en que sobrevino la complicacion de pneumonia hypostatica hasta que fallecio el noviembre 27, 1948, a las 2:30 p.m.

xxx           xxx           xxx

(t.s.n., Laquindanum, March 21, 1948, pp. 28-29.)

JUZGADO.—P. Como llego usted a esa conclusion de que desde el 14 de noviembre de 1948 en que usted ordeno la entrega de la paciente al hospital empeoro su salud hasta que murio el dia 27 de noviembre de 1948?-R. Porque cada vez mas se acentua su estado comatoso, y demas su respiracion se hacia mas fatigosa cada vez que pasaban los dias, y con estertores.

P.       Y como estaba su estado mental?—R. Estaba completamente inconsciente desde el dia en que entro en el hospital.

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 retardado le 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.

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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 Manuela 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 Manuela 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, March 21, 1948, pp. 30-33.).

While appellant Alejandro Gonzales, Jr. has attempted to show that Dr. Leveriza was not an expert, the latters's testimony remains uncontradicted. The fact that the testimony of the attesting witnesses tends to imply that the testatrix was of sound mind at the time the alleged instrument of revocation was executed, cannot prevail over the findings of the attending physician, Dr. Leveriza, because even Dr. Ramon C. Talavera (an attesting witness) testified that although he had not examined the testatrix, her case appeared serious; that he had a hunch that "they were taking advantage of the last moment of the deceased and they were 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 was in a comatose condition, Dr. Leveriza would not have ordered to "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 witnesses should be given more credence than the opinion of an

expert witness, 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 which the doctors were not in a position to certify definitely as the testamentary capacity of the testators at the time the wills therein involved were executed, because they had not observed the testators on said dates or never saw them; whereas the case now before us involves a family physician who attended the testatrix during her last illness and saw her on the day when the alleged instrument of revocation was executed.

2. We cannot help expressing our surprise at the fact that the instrument of revocation was allegedly executed on November 18, 1948, when, according to the testimony of Jose Padilla, the latter was asked by the testatrix to prepare the necessary document as early as in the month of May, 1948, and reminded about it for the second time weeks 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 was busy and the children of the testatrix had certain disputes which he tried to settle. The second excuse is that he was not able to secure soon enough from Alejandro Gonzales, Jr. some documents of transfer which he wanted to examine in connection with the preparation of the desired instrument of revocation. We are inclined to state that these excuses are rather poor. If Jose Padilla was 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 wills, would have employed another to prepare the requisite document. The fact that there were disputes between the children of the testatrix certainly was not an obstacle to the accomplishment of the wish of the testatrix. Neither was it necessary to examine the 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 was agreeable to the instrument of revocation prepared by Jose Padilla, and secondly, if she was agreeable to the signing of said document by Constancio Padilla, to which two questions the testatrix allegedly answered "Yes". It is not pretended that the testatrix said more about the matter or gave any further instruction. The attesting witnesses were not introduced to the testatrix, and their presence was not even mentioned to her. it is obviously doubtful whether the testatrix understood the meaning and extent of the ceremony. Assuming that the testatrix answered in the affirmative the two questions of Constancio Padilla, without more, we cannot fairly attribute to her manifestation of her desire to proceed, right then and there, with the signing of the questioned instrument. In other words, contrary to the recital of the attestation clause, the testatrix cannot rightly be said to have published her last will to the attesting witnesses.

The appealed decision is, therefore, affirmed without 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.

56

Tirona, Gutierrez 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 what purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six months after the document in question was executed. In the court below, the present appellant specified five grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was 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 was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding that the document Exhibit "A" was executed in all particulars as required by law." To this objection is added the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner rested his case and over the vigorous objection of the oppositor.

The will in question comprises two pages, each of which is written 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 wills 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, which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, — all of which, in the logical order of sequence, precede the direction for the disposition of the marker's property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, 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 within the purview and scope of the first assignment of error, the matter of the credibility of the witnesses is assailed under this heading. On the merits we 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 which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred.

Everyday life and the result of investigations made in the field of experimental psychology show that the contradictions of witnesses 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 who witness 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 was that the testator was 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 will. It was a matter of taste or preference. Both ways are good. A statute requiring a will 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, we do not share the opinion that the trial court communicated an abuse of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the language in which the will is drawn, 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 within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the 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 written, or entered upon the minutes or signed. (64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are allowed 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 will not be disturbed in the appellate court where 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 newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to the evidence is to correct evidence previously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's understanding of the language used in the testament. There is no statutory requirement that such knowledge be expressly stated in the will 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 which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect.

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs.

Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.

G.R. No. L-13431            November 12, 1919

57

In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, vs.ANASTACIA ABANGAN, ET AL., opponents-appellants.

Filemon Sotto for appellants.M. Jesus Cuenco for appellee.

 

AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916. From this decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will 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 (which is the one applicable in the case) evidently has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A different interpretation would 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 written by the testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. We cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on the sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But, when all the dispositive parts of a will are written 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, without considering whether or not this clause is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way 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 whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's last will, 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 which the will is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street 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 Ozaeta for appellant.Adolfo A. Scheerer for appellees.

ROMUALDEZ, J.:

This appeal was taken from the judgment of the Court of First Instance of Benguet, denying the probate of the instrument Exhibit A, as the last will and testament of the deceased Piraso.

The proponent-appellant assigns the following as alleged errors of the lower court:

1. In holding that in order to be valid the will in question should have been drawn up in the Ilocano dialect.

2. In not holding that the testator Piraso did not know the Ilocano dialect well enough to understand a will drawn up in said dialect.

3. In refusing to admit the will in question to probate.

The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows:

The evidence shows 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

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opinion that his will should have been written in that dialect.

Such statements were not unnecessary for the decision of the case, once it has been proved without contradiction, that the said deceased Piraso did not know English, in which language the instrument Exhibit A, alleged to be his will, is drawn. Section 628 of the Code of Civil Procedure, strictly provides that:

"No will, except as provides in the preceding section" (as to wills executed by a Spaniard or a resident of the Philippine Islands, before the present Code of Civil Procedure went into effect), "shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator," etc. (Emphasis supplied.) Nor can the presumption in favor of the will 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 where he resides, unless there is proof to the contrary, even he invoked in support of the probate of said document Exhibit A, as a will, because, in the instant case, not only is it not proven that English is the language of the City of Baguio where the deceased Piraso lived and where Exhibit A was drawn, but that the record contains positive proof that said Piraso knew no other language than the Igorrote dialect, with a smattering of Ilocano; that is, he did not know the English language in which Exhibit A is written. So that even if such a presumption could have been raised in this case it would have been wholly 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 was, proven, that the instrument in question could not be probated as the last will and testament of the deceased Piraso, having been written in the English language with which the latter was unacquainted.

Such a result based upon solidly established facts would be the same whether or not it be technically held that said will, in order to be valid, must be written in the Ilocano dialect; whether or not the Igorrote or Inibaloi dialect is a cultivated language and used as a means of communication in writing, and whether or not the testator Piraso knew the Ilocano dialect well enough to understand a will written in said dialect. The fact is, we repeat, that it is quite certain that the instrument Exhibit A was written in English which the supposed testator Piraso did not know, and this is sufficient to invalidate said will according to the clear and positive provisions of the law, and inevitably prevents its probate.

The judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered.

Avanceña, C. J., Malcolm, Villamor, Ostrand 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 Sotelo Mati and Agustin 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 will and testament of Maria Zuñiga Vda. de Pando who died in the City of Manila on October 29, 1945.

On November 6, 1945, a petition for the probate of said will was filed in the Court of First Instance of Manila. 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 which both parties presented their respective evidence, the court rendered its decision disallowing the will on the ground that the signatures of the deceased appearing therein are not genuine, that it was not proven that the deceased knew the Spanish language in which it was written, and that even if the signatures are genuine, the same reveal that the deceased was not of sound mind when she signed the will. From this decision petitioner appealed to this Court.

While petitioner imputes nine errors to the lower court, we believe, however, that for purposes of this appeal of discussion of some would be sufficient. Thus, the issues may be boiled down as follows: 1) Whether or not the signatures of the deceased appearing in the will (Exhibit "C") are genuine; 2) whether or not there is evidence to show that the testatrix knew the language in which the will was written; and 3) whether or not the testatrix was of sound and disposing mind when she signed the will.

1. To prove that the will was signed by the testatrix in accordance with law, petitioner presented as witnesses the three persons 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 with ice every day, and in one of those occasions she went to her house to bring ice, she requested to act witness to the execution of the will. The second was a laborer whose job was is to fix bed made of rattan, and in one of those days he went to the house of the deceased to work, he was asked also to witness the signing of the will. And the third was a neighbor of the deceased for many years who was also requested to act as an instrumental witness. These witnesses testified in their own simple and natural way 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 where her signatures appear, they in turn signed it in the presence and in the presence of each other. This is the substance of what they have testified and from an examination of their testimony to the court entertains no doubt that they had told the truth. There is nothing in their testimony which may in any way reflect against their credibility nor has the oppositor proven fact or circumstance which may give rise to the suspicion that they testified out of personal interest or pecuniary consideration. They have impressed the court as simple persons who had intervened in the execution of the will out merely of deference to the testatrix whom they had served for sometime and had known to be a good and respectable woman.

What evidence has the oppositor presented to contradict the testimony of these instrumental witnesses? only one expert witness, Jose G. Villanueva, who made a comparative analysis of the signatures appearing in the will 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 well as in his memorandum, this witness has reached the conclusion that the hand that wrote the signatures of the deceased appearing in the will is not the same hand that wrote the genuine signatures he had examined and which he used as basis of his analytical study, thereby concluding that said signatures are not genuine. The lower court gave full faith and credit to the opinion of this expert witness, and decreed as a result that the will cannot be admitted to probate.

There are, however, certain important facts and circumstances which make us differ from this opinion of the lower court. In the first place, we find that the opinion of this expert witness has been rebutted by another expert witness Jose C. Espinosa, whose 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 two signatures appearing in two documents executed on November 10, 1942, one signature in an identification card affixed in April 1940, a half signature appearing in a letter written on October 8, 1943, one signature appearing in a letter written on July 16, 1945, and one signature appearing in a letter written on January, 1945, whereas the

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disputed signatures appearing in the will were 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 were affixed on October 16, 1945, other four signatures that were 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 March 12, 1941, only for emphasis. The closeness or proximity of the time in which the standards used had been written 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 we 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 writing 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 was not followed in the study made by Villanueva. But such was observed in the study made by Espinosa. He followed the standard practice in handwriting analysis. It is for this reason that we hold that Espinosa's opinion deserves more weight 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 "Modern 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 always be examined and preferably double that number." (Page 139, Forensic Chemistry and Scientific Criminal Investigation by Lucas, 1935, Edward Arnold & Co., London.)

2. Another ground on which the lower court base the disallowance of the will is the failure of the petitioner to prove that the testratrix knew and spoke the language in which the will in question appears to have been written. According to the lower court, the law requires that the will should be written in the dialect or language known to the testator and this fact having been proven, the probate of the will must fail. And the wall was disallowed.

There is indeed nothing in the testimony of the witnesses presented by the petitioner which would indicate that the testatrix knew and spoke the Spanish language used in the preparation of the will 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 with, it appearing that there is enough evidence on record which supplies this technical omission. In the first place, we have the undisputed fact that the deceased was a mestiza española, was married to a Spaniard, Recaredo Pando, and made several trips to Spain. In the second place, we have the very letters submitted as evidence by the oppositor written 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 language in which the testament has been written, which 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, we have the very attestation clause of the will which 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 which the will was written. There is, therefore, no valid reason why the will should be avoided on this ground.

3. The remaining ground which the lower court has considered in disallowing the will is the fact that the deceased was not of sound

and disposing mind when she signed the will, and it reached this conclusion, not because of any direct evidence on the matter, but simply because the deceased signed the will in a somewhat varied form. On this point the lower court said:

El Juzgado es de opinion que aunque se admita que las firmas arriba indicadas feuran de Maria 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 Maria 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 mentalmente sana. Si esto es asi, no se debe legalizar como testamento y ultima voluntad de la finada Maria 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 what the instrumental witnesses have said on this point. Cornelio Gonzales de Romero stated that she spoke to the deceased before the signing of the will, and judging from the way she spoke she was of the impression that the deceased was of sound mind at the time. To the same effect is the testimony of Consuelo B. de Catindig. She said that her impression when the deceased signed the will was that she could still talk and read, only that she was weak. In fact she read the will 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 will 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 writings of old people and, far from showing lack of genuineness, are indicative of the age, sickness, or weak condition of the writer. A comparison of the three disputed signatures in the will readily give this impression.

Abbreviated, distorted and illegible, forms, which 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 writing. Those who write of difficulty or hesitation through some physical infirmity may sometimes produced broken and unfinished signatures and these results, which in themselves are distinctly divergent as compared with signatures produced under conditions of strength and health, may forcefully indicate genuineness . Under conditions of weakness due to diseased or age, parts of a genuine signature may be clumsily written over a second time not at just the same place and in a way when clearly shows that the writer either could not see or was so week and inattentive as not to care what 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 lower court erred in disallowing the will Exhibit C.

Wherefore, the decision appealed from is hereby reversed. The Court admits the will Exhibit C to probate, and remands these case to the lower court for further proceedings, with costs against the appellee.

Paras, C.J., Feria, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

G.R. No. L-13781             January 30, 1960

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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.

Vicente Hilado for appellees.Delgado, Flores and Macapagal and Arturo E. Balbastro for appellants.

BARRERA, J.:

On June 29, 1957, a petition to probate the alleged last will and testament of Jose J. Javellana, who died on May 24 of the same year, was presented in the Court of First Instance of Rizal by Crsiteta Jimenea Vda. de Javellana and Benjamin Javellana, widow 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 with an approximate value of P400,000.00; that he also left a will which was delivered 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 were; the wido., 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, whose respective addresses wre given in the petition.

To this petition, Jose Javellana y Azaola and Jose Javellana, Jr. (Pepito) filed separate opposiytions, both claiming that the alleged will of Jose J. Javellana deposited by peittioners with the clerk of court was null and void, the same not having been executed "in accordance with the formalities required by law" and that "the legal requirements necessary for its validit" had not been complied with.

At the hearing, petitioners introduced as evidence in support of the petition, a copy of the will; certification of the date and cause of death of the testator; proof of publication of the petition, once a week for 3 consecutive weeks, in a newspaper of general circulation, and thre testimonies of Jose G. Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the 3 instrumental witnesses to the will, whi, in sustancer, testified that sometime in April, 1956, they were asked to witness the execution of the will of the late Jose. J. Javellana; that on the said occasion, Jose J. Javellana signed the 4 pages of the will 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 acts wetre acknowledge before notary public Fernando Grey, Jr. on the same occasion.

For their part, the oppositor limited their evidence to the presentation of two letters in the Visayan dialect allegedly written by the deceased, the signatures appearing thereon being identified by Jose Javellana, Jr. (Pepito) and Manuel Azaola, as those of the deceased, for the sole purpose of comparing said signatures woth those appearing in the will.

On December 10, 1957, the court a quo issued an order allowing the probate of the will 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 lower court of committing error in allowing oprobate of the will, Exhibit C, on 2 grounds: (1) that the 3 sttesting witnesses failed to clearly and convincingly estabish the due execution of the will; and (2) that petitioners failed to prove that the will was written in a language known to the testator.

The first basis of oppositor's appeal has no merit. It is true that witnesses, particularly Miss Eloisa Villanueva, apparently found difficulty recalling who arrived first at the appointed place, or the order of the witnesses' signing the will, or failed to mention by name the persons present at the time of the witnesses was signing the document. These details, however, are minor and significant

and do not enervate their positive testimony that at the execution of the will the testator, the 3 witnesses, the notary public and Atty. Vicente Hilado were all together in the private office of the latter; that Jose Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the instrumental witnesses, were unanimous in declaring that they actually saw the testator sign the will as well 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 will, 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 wirtneese. It is sufficient that they have seen or at least were so situated at the moment that they could have seen each other sign, had they wnated to do so.1 In fact, in the instant case, at least two witnesses, Yulo and Guevarra, both testified hat the testator and the 3 witnesses 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 wills has not been satisfactorily complied with in this case. Admittedly, there is want of expression in the body of the will itself or in its attestation clause that the testator knew Spanish, the language in which it is written. 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 whatsoever is made in the appealed order.

In some cases, it is true, this lack of evidence was considered cured by presumptioin of knowledge of the language or dialect used in the will, as where the will is executed in a certain province or locality, in the dialect currently used in such provimnce or locality in which 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 where the will is in Spanish, the fact that the testratrix was a "mestiza española", was married to a Spaniard, made several trips to Spain, and some of her letters in her own handwriting submitted as evidence by the oppositor, are in Spanish, give rise to the presumption that she knew the language in which the will was written, 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 will was executed in the City of Manila. Undoubtedly, it cannot be said, and there is no evidence, that Spaniards is the language currently used either in San Juan, Rizal, or Manila. It follows, 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 will executed in the Philippines must be presumed to have been executed in conformity with the laws of the Philippines".5 and "that things have happened in accordance with the ordinary course of nature and the ordinary habits of life", concluding that it woiuld certainly be contrary to the ordinary habits of life for a person to execute his will in a language unknown to him. This, we believe, is, to use a colloquial term, being the question. If the argument of counsel is correct, then every unopposed will may be probated upon its mere presentation in court, without need of producing evidence regarding its execution. Counsel's statement is its own refutation.

We find, in the record stone indicia, although insufficient to give rise to the presumption, that the testator might, in fact, have known the Spanish language. In oppositor's own Exhibit 3 (a letter admittedly written by the testator) appear the salutation "Querido Primo" and the complimentary ending "Su primo" which are Spanish terms. Having found that al the formal requisites for the validity of the will have been satisfactorily establishment, except the language requirement, we deem it in the interest of justice to

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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, without costs. It is so ordered.

Paras, Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and Gutierrez 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, which on its face is voidbecause it is written in English, a language not known to the illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of Appeals which reveal the following tangled strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named Agapito who used the surname Suroza and who considered them as his parents as shown 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 showing that Agapito was 5 years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why on her death she had accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was 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 woman named Arsenia de la Cruz wanted 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 Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who 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). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned 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, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.

As there was 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 March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina 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's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was 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 was already apprised that persons, other than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn was 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 with counter-petition for administration and preliminary injunction". Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by means of undue influence employed by Marina and Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).

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To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore that the alleged will was falsified (p. 109, Record).

Not content with her motion to set aside the 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 will and a counter-petition for letters of administration. In that opposition, Nenita assailed the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April 23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-125, Record).

Marina in her answer 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 that Agapito was not Marcelina's son but merely an anak-anakan who was 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 will is void because Marcelina did not appear before the notary and because it is written in English which is not known 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).

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), was 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 Marilyn, 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 with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know English, the language in which the win was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from various banks the deposits 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 was useless for Nenita to oppose the probate since Judge Honrado would 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 with 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 within which to vacate the house of the testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention Evangeline in her letter dated September 11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to the record of the testamentary proceeding. Evangeline was 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 was needed in order that Nenita could get a favorable decision. Evangeline also denied that she has any knowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court Administrator's memorandum of September 25, 1980. The case was referred to Justice 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 wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix and the three attesting witnesses did not appear before him and that he notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was 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, May 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 which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void win should have inherited the decedent's estate.

A judge may be criminally liable or knowingly 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 wrongful intent, not

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a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which 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 will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina 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. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).

SO ORDERED.

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