Echavez vs Dozen Construction

Facts: Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City. Vicente donated two lots to petitioner Manuel Echavez (Manuel) through a Deed of Donation Mortis Causa. Manuel accepted the donation. Vicente executed a Contract to Sell over the same lots in favor of Dozen Construction and Development Corporation (Dozen Corporation). They then executed two Deeds of Absolute Sale over the same properties covered by the previous Contract to Sell. Vicente died. Emiliano Cabanig, Vicente’s nephew, filed a petition for the settlement of Vicente’s intestate estate. On the other hand, Manuel filed a petition to approve Vicente’s donation mortis causa in his favor and an action to annul the contracts of sale Vicente executed in favor of Dozen Corporation. The Court dismissed Manuel’s petition and held that since the donation in favor of Manuel was a donation mortis causa, compliance with the formalities for the validity of wills should have been observed. The CA found that the deed of donation did not contain an attestation clause and was therefore void.

Issue: WON the donation mortis causa is valid.

Ruling: A donation mortis causa must comply with the formalities prescribed by law for the validity of wills, "otherwise, the donation is void and would produce no effect." Articles 805 and 806 of the Civil Code should have been applied. An attestation clause and an acknowledgment cannot be merged in one statement. That the requirements of attestation and acknowledgment are embodied in two separate provisions of the Civil Code (Articles 805 and 806, respectively) indicates that the law contemplates two distinct acts that serve different purposes. An acknowledgment is made by one executing a deed, declaring before a competent officer or court that the deed or act is his own. On the other hand, the attestation of a will refers to the act of the instrumental witnesses themselves who certify to the execution of the instrument before them and to the manner of its execution. Although the witnesses in the present case acknowledged the execution of the Deed of Donation Mortis Causa before the notary public, this is not the avowal the law requires from the instrumental witnesses to the execution of a decedent’s will. An attestation must state all the details the third paragraph of Article 805 requires. In the absence of the required avowal by the witnesses themselves, no attestation clause can be deemed embodied in the Acknowledgement of the Deed of Donation Mortis Causa.

Garcia vs Gatchalian

FACTS: Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of Pasig, Province of Rizal, leaving no forced heirs. Appellant filed a petition with the court for the probate of said alleged will wherein he was instituted as sole heir. Appellees herein, opposed the petition on the ground, among others, that the will was procured by fraud; that the deceased did not intend the instrument signed by him to be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the alleged execution of said will. After due trial, the court rendered the appealed decision finding the document to be the authentic last will of the deceased but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil Code that the will must be acknowledged before a notary public by the testator and the witnesses. An examination of the document shows that the same was acknowledged before a notary public by the testator but not by the instrumental witnesses.

ISSUE: Whether or not the failure to acknowledge the will before a notary public renders the will void.

RULING: Article 806 of the New Civil Code reads as follows:

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.We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity. As the document under consideration does not comply with this requirement, it is obvious that the same may not be probated.

Cruz vs Villasor

Facts: Valente Z. Cruz executed a will before the three instrumental witnesses, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Agapita N. Cruz, the surviving spouse of the said deceased, opposed the allowance of the will, alleging that the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was executed without the testator having been fully informed of the contents thereof, particularly as to what properties he was disposing; and that the supposed last will and testament was not executed in accordance with law.

Issue: WON the supposed last will and testament of Valente Z. Cruz was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.

Ruling: The last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow; to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. Here the notary public acted not only as attesting witness but also as acknowledging witness, a situation not envisaged by Article 806 of the Civil Code which reads: "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."

To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805 requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for that purpose. In the circumstances, the law would not be duly observed.

Garcia vs Vasquez

Facts: Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose

Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M. Tividad. Gliceria Avelino del Rosario died unmarried, leaving no descendents, ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate consisting mostly of real properties. Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned for probate of the alleged last will and testament of Gliceria A. del Rosario, and for her appointment as special administratrix of the latter’s estate. The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, — the latter five groups of persons all claiming to be relatives of Doña Gliceria within the fifth civil degree. Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special administratrix) to witness the execution of the last will of Doña Gliceria A. del Rosario; that they arrived at the house of the old lady, one after the other, in the afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and sound mind, although she was being aided by Precilla when she walked; that the will, which was already prepared, was first read "silently" by the testatrix herself before she signed it; that the three witnesses thereafter signed the will in the presence of the testatrix and the notary public and of one another. The oppositors-appellants in the present case, however, challenging the correctness of the probate court’s ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.

Issue: WON the will executed by Gliceria A. del Rosario on 29 December 1960 is valid.

Ruling: Gliceria is qualified as blind within the meaning of the law. According to the testimony of the ophthalmologist, when she said that Gliceria had apparently good vision, it does not necessarily mean that she can read but that she is able to go around, take care of herself and see. Thus, since Gliceria was incapable of reading, she could not have read the provisions of the will supposedly signed by her. It is worth noting the instrumental witnesses stated that she read the instrument “silently” which is a conclusion and not a fact. Furthermore, the contents of the instruments were crammed in a single sheet of paper and it contains allot of spelling errors. As such, Gliceria could have notice said glaring errors if she had actually retained the ability to read the purported will and had done so. For all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged." The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testator’s) other senses. In connection with the will here in question, there is nothing in the records to show that the above requisites have been complied

with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due execution.

Alvarado vs Gaviola

Facts: 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited his illegitimate son, Cesar Alvarado and expressly revoked a previously executed holographic will. As testified to by the three instrumental witnesses, the notary public and by private respondent Bayani Ma. Rino who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them. Meanwhile, Brigido's holographic will was subsequently admitted to probate. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.

Issue: WON Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were executed. If so, was the double-reading requirement of said article complied with?

Ruling: Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions. That Art. 808 was not followed strictly. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.

However, substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. To make known

to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served.

Ajero vs CA

Facts: Annie Sand executed a holographic will. In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. When Annie died, petitioners instituted a special proceding for allowance of decedent's holographic will. Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code.

Issue: WON the holographic will is valid.

Ruling: A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code. In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil Code, thus:

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

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

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows:

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

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

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

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

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a holographic will.

Kalaw vs Relova

Facts: GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the court for the probate of her holographic Will. The will contained 2 alterations: a) Rosa's name, designated as the sole heir was crossed out and instead "Rosario" was written above it. Such was not initialed, b) Rosa's name was crossed out as sole executrix and Gregorio's name was written above it. This alteration was initialed by the testator. Petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code. ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder.

Issue: WON the will is valid.

Ruling: Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature.Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature.

Rodelas vs Aranza

Facts: On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will; (3) The alleged hollographic will itself,and not

an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

Issue: WON a holographic will which was lost or cannot be found can be proved by means of a photostatic copy.

Ruling: Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that “the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity.” But, in Footnote 8 of said decision, it says that “Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court,” Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

Roxas vs de Jesus

Facts: After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus. Petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-will addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my will which I want to be respected although it is not written by a lawyer. ... The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus. Both recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their mother. Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana R. de Jesus because (a) it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution.

Issue: Whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code.

Ruling: ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

Uy Kiao Eng vs Nixon Lee

Facts: Respondent Nixon Lee filed a petition for mandamus with damages against his mother Uy Kiao Eng, herein petitioner, before the RTC of Manila to compel petitioner to produce the holographic will of his father so that probate proceedings for the allowance thereof could be instituted. Respondent had already requested his mother to settle and liquidate the patriarch’s estate and to deliver to the legal heirs their respective inheritance, but petitioner refused to do so without any justifiable reason. Petitioner denied that she was in custody of the original holographic will and that she knew of its whereabouts. The RTC heard the case. After the presentation and formal offer of respondent’s evidence, petitioner demurred, contending that her son failed to prove that she had in her custody the original holographic will. The RTC, at first, denied the demurrer to evidence. However, it granted the same on petitioner’s motion for reconsideration. Respondent’s motion for reconsideration of this latter order was denied. Hence, the petition was dismissed. Aggrieved, respondent sought review from the appellate court. The CA initially denied the appeal for lack of merit. Respondent moved for reconsideration. The appellate court granted the motion, set aside its earlier ruling, issued the writ, and ordered the production of the will and the payment of attorney’s fees. It ruled this time that respondent was able to show by testimonial evidence that his mother had in her possession the holographic will. Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate court denied this motion. Left with no other recourse, petitioner brought the matter before the Supreme Court, contending that the petition for mandamus is not the proper remedy and that the testimonial evidence used by the appellate court as basis for its ruling is inadmissible.

Issue: WON a holographic will which was lost or cannot be found can compel Uy Kiao Eng to produce it.

Ruling: In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved here the production of the original holographic will is in the nature of a public or a private duty, rules that the remedy of mandamus cannot be availed of by respondent Lee because there lies another plain, speedy and adequate remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of the will and that he seeks the production of the original for purposes of probate. The Rules of Court, however, does not prevent him from instituting probate proceedings for the allowance of the will whether the same is in his possession or not. Rule 76, Section 1 relevantly provides: Section 1. Who may petition for the allowance of will. Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time, after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of the original holographic will. Thus

SEC. 2. Custodian of will to deliver. The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will. SEC. 3. Executor to present will and accept or refuse trust. A person named as executor in a will shall within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it. SEC. 4. Custodian and executor subject to fine for neglect. A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos. SEC. 5. Person retaining will may be committed. A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will. There being a plain, speedy and adequate remedy in the ordinary course of law for the production of the subject will, the remedy of mandamus cannot be availed of. Suffice it to state that respondent Lee lacks a cause of action in his petition.

Codoy vs Calugay

Facts: Matilde Seo Vda. de Ramonal executed a will. The holographic will which was written in Visayan, is translated in English as follows:

Instruction

August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelrys shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay

(Sgd)Matilde Vda de Ramonal

August 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal

"August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal

"August 30,1978

Gene and Manuel:

"Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased, filed with the Court a petition for probate. Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. Petitioners argued that the repeated dates incorporated or appearing on the will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.

Issue: WON the date, text, and signature on the holographic will were written entirely in the hand of the testatrix.

Ruling: In the case of Ajero vs. Court of Appeals, 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 primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased. There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978, and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980, and a letter dated June 16, 1978, the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. Therefore, it cannot be certain that the holographic will was in the handwriting by the deceased.

Dela Cerna vs Rebaca-Potot

Facts: Spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned". Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela. Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed. The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament.

Issue: WON a joint will is valid.

Ruling: It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance.

Gonzales vs CA

Facts: Isabel Gabriel died on June 7, 1961 without issue. Lutgarda Santiago (respondent), niece of Isabel, filed a petition for probate of Isabel’s will designating her as the principal beneficiary and executrix. The will was typewritten in Tagalog and was executed 2 months prior to death of Isabel.The petition was opposed by Rizalina Gonzales (petitioner), also a niece of Isabel, on the following grounds: 1. the will is not genuine, 2. will was not executed and attested as required by law, 3. the decedent at the time of the making of the will did not have testamentary capacity due to her age and sickness, and 4. the will was procured through undue influence.The trial court disallowed the probate of the will but the Court of Appeals Reversed the said decision of the trial court. The petitioner filed a petition for review with SC claiming that the CA erred in holding that the will of the decedent was executed and attested as required by law when there was absolutely no proof that the 3 instrumental witnesses are credible.

Issue: WON a witness be considered competent under Art 820-821 and still not be considered credible as required by Art. 805. WON Is it required that there must be evidence on record that the witness to a will has good standing in his/her community or that he/she is honest or upright?

Ruling: The term credible in Article 805 requires something more than just being competent and, therefore, a witness in addition to being competent under Articles 820-821 must also be credible under Art. 805. The competency of a person to be an instrumental witness to a will is determined by the statute (Art. 820 and 821), whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. In the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: “Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony.”

There is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthiness and for being reliable, his honesty and uprightness (such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party) in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code.

Unson vs Abella

Facts: On July 19, 1918, Dona Josefa Zalamea y Abella, single, 60 years old, who was residing in the municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an attached inventory of her properties in the presence of three witnesses, who signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921, and, the executor appointed in the will, Pedro Unson, filed in the Court of First Instance of Laguna on the 19th of January of the same year an application for the probate of the will and the issuance of the proper letters of administration in his favor. To said application an opposition was presented by Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not executed in conformity with the provisions of the law, inasmuch as it was not paged correlatively in

letters; nor was there any attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other.

Issue: WON the will was executed with all the solemnities required by the law.

Ruling: As to the paging of the will, the SC cited the case of Aldaba v. Roque. Thus: It was held that this way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one of these methods indicates the correlation of the pages and serves to prevent the abstraction of any of them. In the course of the decision, we said: "It might be said that the object of the law in requiring that the paging be made in letters is to make falsification more difficult, but it should be noted that since all the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to forge the signatures.

The inventory is referred to in the will as an “integral part” of it so the inventory need not have an additional attestation clause at the end.

The actuation of the proponents in NOT bringing to court Pedro de Jesus does not render the will invalid. As announced in Cabang vs. Delfinado, the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must be produced.Exceptions: a. when a witness is dead, orb. cannot be served with process of the court, orc. his reputation for truth has been questioned ord. He appears hostile to the cause of the proponent.

In the aforementioned cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will has been duly executed.

Testate Estate of Maloto vs CA

Facts: Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs commenced an intestate proceeding for the settlement of their aunt's estate. However, while the case was still in progress the parties - Aldina, Constancio, Panfilo, and Felino - executed an agreement of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval which the court did approved. Three years later Atty. Sulpicio Palma, a former associate of Adriana's counsel discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies to other parties. Subsequently, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed a motion for reconsideration and annulment of the proceedings in the intestate proceedings of Adriana and for the allowance of the will. Trial court denied their motion, The petitioner came to SC by way of a petition for certiorari and mandamus assailing the orders of the trial court. SC

dismissed that petition and advised to file a separate proceeding for the probate of the alleged will. By that petitioner file a separate proceeding for probate of the will. Significantly, during the investigation the appellate court found out that the will was allegedly burned by the house help of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, and found that the will had been revoked. The CA stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven.

Issue: Whether or not the will was revoked by Adriana

Ruling: The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned.

De Molo vs Molo

Facts: Josefa Luengo Vda. de Agcaoili and her husband, Romarico Agcaoili, now deceased, executed the promissory note whereby they acknowledged that they owed Francisco Agcaoili, plaintiff and Romarico’s brother, P6,050. Melquiades Ibañez signed the instrument to guarantee that the debtors should pay. The date of the instrument was November 30, 1943 but there were allegations in the complaint that the amount was the total of smaller sums, all of which had been obtained from the plaintiff before the outbreak of the war. Romarico Agcaoili having died, Cesar L. Agcaoili and Oscar L. Agcaoili as well as Josefa Luengo Vda. de Agcaoili and Melquiades Ibañez were made defendants in

this action, filed to collect the above-mentioned sum of money. Romarico Agcaoili’s sons filed a joint answer and Josefa Luengo Vda. de Agcaoili and Melquiades Ibañez each a separate one.

Cesar L. Agcaoili and Oscar L. Agcaoili protested that they were not liable for their father’s debt, as they had not inherited, nor did they have in their possession, any property of the deceased. As an alternative defense, they alleged that the obligation was not yet due "for the reason that World War II has not yet been officially terminated and thus peace and order have not yet been fully restored."

Issue: WON debts of the deceased can be succeeded by heirs.

Ruling: With reference to the deceased’s children’s plea we gather from the appellant’s brief that he does not question the judgment absolving these two defendants. Thus his counsel says: "As to whether the action against the heirs of Romarico Agcaoili is premature or not, we will not argue with the trial court, for as the heirs alleged that they did not inherit anything, it is useless to proceed against them, and it would be just a waste of money and added expense on the part of the plaintiff to proceed against the estate or heirs of an insolvent."