succession aug. 10

7/31/2019 Succession Aug. 10

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1. DE JESUS VS DE JESUS

Facts:

After the death of spouses Andres de Jesus and Bibiana Roxas deJesus, Special Proceeding case was filed by petitioner SimeonRoxas, the brother of the deceased Bibiana.

Simeon was appointed administrator. Then, he delivered to LC adocument purporting to be the holographic Will of Bibiana.

Respondent Judge set the hearing of the probate of theholographic will.

Petitioner Simeon testified that after his appointment asadministrator, he found a notebook belonging to Bibiana and thaton pages 21, 22, 23 and 24, a letter-will addressed to herchildren and entirely written and signed in the handwriting ofBibiana was found.

The will is dated "FEB./61 " and states: "This is my will which Iwant to be respected although it is not written by a lawyer. ...

Testimony of Simeon was corroborated by the testimonies ofPedro Roxas de Jesus and Manuel Roxas de Jesus who likewisetestified that the letter dated "FEB./61 " is the holographic Will oftheir deceased mother, Bibiana.

- Both recognized the handwriting of their mother andpositively Identified her signature.

- further testified that their mother understood English, thelanguage in which the holographic Will is written, and that thedate "FEB./61 " was the date when said Will was executed bytheir mother.

Respondent Luz Henson, another compulsory heir filed an"opposition to probate" assailing the purported holographic Will of

Bibiana bec.- it was not executed in accordance with law,- it was executed through force, intimidation and/or under

duress, undue influence and improper pressure,- the alleged testatrix acted by mistake and/or did not intend,

nor could have intended the said Will to be her last Will andtestament at the time of its execution

Respondent Judge issued an order allowing the probate holographic Will which he found to have been duly execuaccordance with law.

Respondent Luz filed MR alleging that the alleged hologWill of Bibiana was not dated as required by Article 810 Civil Code.

- contends that the law requires that the Will should cothe day, month and year of its execution and that this s

be strictly complied with.

Respondent Judge reconsidered his earlier order and disathe probate of the holographic Will on the ground that the"dated" has generally been held to include the month, dayyear.

Issue:

WON the date "FEB./61 " appearing on the holographic Will of Bibia valid compliance with the Article 810 of the CC.

Held:

ART. 810 - A person may execute a holographic will whichbe entirely written, dated, and signed by the hand of the tehimself. It is subject to no other form, and may be madeout of the Philippines, and need not be witnessed.

Petitioners contends:

- while Article 685 of the Spanish Civil Code and Article 6the Old Civil Code require the testator to state holographic Will the "year, month, and day of its executhe present Civil Code omitted the phrase Ao mes y dsimply requires that the holographic Will should be dated

- that the liberal construction of the holographic Will sprevail.

Respondent submits:


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- that the purported holographic Will is void for non-compliancewith Article 810 of the New Civil Code in that the date mustcontain the year, month, and day of its execution.

- that Article 810 of the Civil Code was patterned after Section1277 of the California Code and Section 1588 of the LouisianaCode whose Supreme Courts had consistently ruled that therequired date includes the year, month, and day, and that ifany of these is wanting, the holographic Will is invalid.

-that the petitioner cannot plead liberal construction of Article810 of the Civil Code because statutes prescribing theformalities to be observed in the execution of holographicWills are strictly construed.

SC agree with the petitioner.- This will not be the first time that this Court departs from a

strict and literal application of the statutory requirementsregarding the due execution of Wills.

- We should not overlook the liberal trend of the Civil Code inthe manner of execution of Wills, the purpose of which, incase of doubt is to prevent intestacy

The underlying and fundamental objectives permeating

the provisions of the law on wigs in this Project consists in

the liberalization of the manner of their execution with theend in view of giving the testator more freedom in

expressing his last wishes, but with sufficient safeguards

and restrictions to prevent the commission of fraud andthe exercise of undue and improper pressure andinfluence upon the testator. This objective is in accord

with the modem tendency with respect to the formalities

in the execution of wills.

Justice Capistrano's concurring opinion in Heirs of RaymundoCastro v. Bustos that:... The law has a tender regard for the will of the testatorexpressed in his last will and testament on the ground that any

disposition made by the testator is better than that which the law

can make. For this reason, intestate succession is nothing morethan a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of thelegal requirements in order to guard against fraud and bad faith

but without undue or unnecessary curtailment of testameprivilege Icasiano v. Icasiano, 11 SCRA 422). If a Will hasexecuted in substantial compliance with the formalities olaw, and the possibility of bad faith and fraud in the exthereof is obviated, said Win should be admitted to proThus,

... More than anything else, the facts and circumstanrecord are to be considered in the application of any given rthe surrounding circumstances point to a regular execution wilt and the instrument appears to have been exe

substantially in accordance with the requirements of the lawinclination should, in the absence of any suggestion of badforgery or fraud, lean towards its admission to probate, altthe document may suffer from some imperfection of languaother non-essential defect. ...

If the testator, in executing his Will, attempts to comply wthe requisites, although compliance is not literal, it is sufficthe objective or purpose sought to be accomplished byrequisite is actually attained by the form followed by the tes

The purpose of the solemnities surrounding the execution ohas been expounded by this Court in Abangan v. Abanga 4476, where we ruled that:

The object of the solemnities surrounding the executwills is to close the door against bad faith and fraud, to substitution of wills and testaments and to guaranty theirand authenticity. ...

complete date is required to provide against such contingas that of two competing Wills executed on the same day, otestator becoming insane on the day on which a Wilexecuted.

- There is no such contingency in this case. SC found no evidence of bad faith and fraud in the execut

the will nor was there any substitution of Wills and Testame

- no question that the holographic Will of Bibiana was enwritten, dated, and signed by the testatrix herself andlanguage known to her.

- no question as to its genuineness and due execution.


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- All the children of the testatrix agree on the genuineness ofthe holographic Will of their mother and that she had thetestamentary capacity at the time of the execution of saidWill.

- objection interposed by the oppositor that the holographicWill is fatally defective because the date "FEB./61 " appearingon the holographic Will is not sufficient compliance withArticle 810 of the Civil Code. This objection is too technical tobe entertained.

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 noappearance of fraud, bad faith, undue influence andpressure and the authenticity of the Will is established andthe only issue is whether or not the date "FEB./61"appearing on the holographic Will is a valid compliancewith Article 810 of the Civil Code, probate of theholographic Will should be allowed under theprinciple of substantial compliance.

__________________________________________________________

2. AJERO VS CA

Facts:

RTC of Quezon City submitted for probate the holographic will ofthe late Annie Sand.

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

children.

- Petitioners instituted Sp. Proc. case for allowance ofdecedent's holographic will.

- They alleged that at the time of its execution, she was ofsound and disposing mind, not acting under duress, fraudor undue influence, and was in every respect capacitated

to dispose of her estate by will.

- PR opposed the petition on the grounds that: neither the testament's body nor the sign

therein was in decedent's handwriting; it contained alterations and corrections which

not duly signed by decedent; and, the wiprocured by petitioners through improper preand undue influence.

- petition was likewise opposed by Dr. Jose Ajero. that the house and lot disposed in the will

not be conveyed by decedent in its entirety, awas not its sole owner.

TC - admitted the decedent's holographic will to probate.- identity of the will presented for probate must be acc

a. Considering then that the probate proceeherein must decide only the question of iden

the will, its due execution and the testamecapacity of the testatrix, this probate court finreason at all for the disallowance of the will failure to comply with the formalities prescriblaw nor for lack of testamentary capacity testatrix. Lib rary

b. no evidence was presented to show that the question is different from the will actually exeby the testatrix. The only objections raised boppositors . . . are that the will was not writthe handwriting of the testatrix which prrefers to the question of its due execution, anto the question of identity of will.

c. No other will was alleged to have been executthe testatrix other than the will herein prese

- requirement of the law that the holographic wentirely written, dated and signed in the handwritthe testatrix has been complied with.


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a. Petitioners have satisfactorily shown in Court thatthe holographic will in question was indeed writtenentirely, dated and signed in the handwriting of thetestatrix.

b. 3 witnesses who have convincingly shownknowledge of the handwriting of the testatrix havebeen presented and have explicitly andcategorically identified the handwriting with whichthe holographic will in question was written to bethe genuine handwriting and signature of thetestatrix.

- Testatrix had full mental capacitya. PR himself testified that the testatrix was

completely in her sound mind when he visited herduring her birthday in 1981, at or around whichtime the holographic will in question was executed.To be of sound mind, it is sufficient that thetestatrix, at the time of making the will, knew thevalue of the estate to be disposed of, the properobject of her bounty, and the character of thetestamentary act . . . The will itself shows that the

testatrix even had detailed knowledge of thenature of her estate. She even identified the lotnumber and square meters of the lots she hadconveyed by will. The objects of her bounty werelikewise identified explicitly. And considering thatshe had even written a nursing book whichcontained the law and jurisprudence on will andsuccession, there is more than sufficient showingthat she knows the character of the testamentaryact.

Held:

SC- the identity of the will, its due execution and the

testamentary capacity of the testatrix has to be resolvedin favor of the allowance of probate of the will.

- no evidence was presented to show sufficient reasthe disallowance of herein holographic will.

- Evidence adduced have not shown any instance improper pressure or influence was exerted otestatrix. PR has testified that the testatrix was stilat the time of the execution of the will. It wasestablished that she is a very intelligent person andmind of her own. Her independence of character asome extent, her sense of superiority, which hastestified to in Court, all show the unlikelihood of her

unduly influenced or improperly pressured to makaforesaid will.

- undue influence or improper pressure refer to the mof a will and not as to the specific testamentary provtherein which is the proper subject of another proce

- it is a well-established doctrine in the law on succethat in case of doubt, testate succession shoupreferred over intestate succession, and the fact thconvincing grounds were presented and proven fodisallowance of the holographic will of the late Sand, the aforesaid will submitted herein muadmitted to probate.

CA- reversed TC and the petition for probate of the widismissed.

- found that, "the holographic will fails to meerequirements for its validity bec. it did not complyArticles 813 and 814 of the New Civil Code.

Art. 813: When a number of dispositions appearin

holographic will are signed without being dated, anlast disposition has a signature and date, such

validates the dispositions preceding it, whatever btime of prior dispositions.

Art. 814: In case of insertion, cancellation, erasualteration in a holographic will, the testator authenticate the same by his full signature.

- It alluded to certain dispositions in the will which either unsigned and undated, or signed but not dated


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- that the erasures, alterations and cancellations madethereon had not been authenticated by decedent.

Issue:

WON the will may be probated.

Held:

SC - appeal was impressed with merit. Section 9, Rule 76 of the Rules of Court provides that will shall be

disallowed in any of the following cases:

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

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

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

(d) If it was procured by undue and improper pressure andinfluence, on the part of the beneficiary, or of some other personfor his benefit; chanrobles virtual law library

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

In the same vein, Article 839 of the New Civil Code reads:Art. 839: The will shall be disallowed in any of the following cases;

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

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

(3) If it was executed through force or under duress, oinfluence of fear, or threats; chanrobles virtual law library

(4) If it was procured by undue and improper pressureinfluence, on the part of the beneficiary or of some other pechanrobles virtual law library

(5) If the signature of the testator was procured by chanrobles virtual law library

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

These lists are exclusive; no other grounds can serve to disawill.

- Thus, in a petition to admit a holographic will to prothe only issues to be resolved are:

(1) whether the instrument submitted is, indeeddecedent's last will and testament;

(2) whether said will was executed in accordance wiformalities prescribed by law;

(3) whether the decedent had the necessary testamecapacity at the time the will was executed; and,

(4) whether the execution of the will and its signingthe voluntary acts of the decedent.

SC reiterateAbangan vs. Abangan, 40 Phil. 476, 479 (1919),thThe object of the solemnities surrounding the execut

wills is to close the door against bad faith and fraud, to

substitution of wills and testaments and to guaranty their trutauthenticity. Therefore, the laws on this subject shou

interpreted in such a way as to attain these primordial ends. B

the other hand, also one must not lose sight of the fact that it the object of the law to restrain and curtail the exercise of theto make a will. So when an interpretation already given assures

ends, any other interpretation whatsoever, that adds nothin


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demands more requisites entirely unnecessary, useless andfrustrative of the testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formalsolemnities include the subscription, attestation, andacknowledgment requirements under Articles 805 and 806 of theNew Civil Code.

What assures authenticity of holographic wills - is the requirementthat they be totally autographic or handwritten by the testatorhimself, as provided under Article 810 of the New Civil Code, thus:

- A person may execute a holographic will which must beentirely written, dated, and signed by the hand of thetestator himself. It is subject to no other form, and maybe made in or out of the Philippines, and need not bewitnessed.

Failure to strictly observe other formalities will not result in thedisallowance of a holographic will that is unquestionably handwrittenby the testator.

Article 813 NCC - its requirement affects the validity of thedispositions contained in the holographic will, but not its probate. Ifthe testator fails to sign and date some of the dispositions, the resultis that these dispositions cannot be effectuated. Such failure,however, does not render the whole testament void.

holographic will can still be admitted to probate, notwithstandingnon-compliance with the provisions of Article 814.

- Kalaw vs. Relova - Ordinarily, when a number of erasures,corrections, and interlineations made by the testator in aholographic Will have not been noted under his signature,. . . the Will is not thereby invalidated as a whole, but atmost only as respects the particular words erased,corrected or interlined.

- Thus, unless the unauthenticated alterations, cancellationsor insertions were made on the date of the holographicwill or on testator's signature, their presence does notinvalidate the will itself. The lack of authentication willonly result in disallowance of such changes.

- the requirements of authentication of changes and signingand dating of dispositions appear in provisions (Articles813 and 814) separate from that which provides for the

necessary conditions for the validity of the holograph(Article 810). The distinction can be traced to Articleand 688 of the Spanish Civil Code, from which the pprovisions covering holographic wills are taken. Theyas follows:

Art. 678: A will is called holographic when the testator wrhimself in the form and with the requisites required in A688.chanroblesvirtualawlibrary chanrobles virtual law library

Art. 688: Holographic wills may be executed only by persofull age.

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

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

Foreigners may execute holographic wills in their own language only the requirements of Article 810 of the New Civil Code - an

those found in Articles 813 and 814 of the same Code - are essto the probate of a holographic will.

CA is affirmed in saying that decedent could not validly dispothe house and lot.

- GR - probate proceedings are limited to pass onlythe extrinsic validity of the will sought to be probHowever, in exceptional instances, courts arepowerless to do what the situation constrains them and pass upon certain provisions of the will.

- In the case at bench, decedent herself indubitably in her holographic will that the Cabadbaran propertythe name of her late father.

________________________________________________

3. KALAW VS RELOVA

Facts:


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PR GREGORIO KALAW, claiming to be the sole heir of his

deceased sister, Natividad Kalaw, filed a petition for the probateof her holographic Will.

The holographic Will reads in full as follows:My Last will and Testament. In the name of God, Amen.I Natividad K. Kalaw Filipino 63years of age, single, and a

resident of Lipa City, being of sound and disposing mind andmemory, do hereby declare thus to be my last will and

testament.

1. It is my will that I'll be burried in the cemetery of the catholicchurch of Lipa City. In accordance with the rights of said Church,and that my executrix hereinafter named provide and erect at theexpose of my state a suitable monument to perpetuate mymemory.

The holographic Will, as first written, named ROSA K. Kalaw, asister of the testatrix as her sole heir.

petitioner ROSA K. Kalaw opposed probate alleging that theholographic Will contained alterations, corrections, and insertions

without the proper authentication by the full signature of thetestatrix as required by Article 814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure oralteration in a holographic will the testator must authenticate thesame by his full signature.

- ROSA's position was that the holographic Will, as firstwritten, should be given effect and probated so that shecould be the sole heir thereunder.

TC - denied probate- Bec. the insertions, alterations and/or additions in Exhibit

"C" is not authenticated by the full signature of thetestatrix Natividad

GREGORIO moved for reconsideration - arguing that since thealterations and/or insertions were the testatrix, the denial toprobate of her holographic Will would be contrary to her right oftestamentary disposition. (DENIED on ground that "Article 814

of the Civil Code being, clear and explicit, (it) requirnecessity for interpretation.)

ROSA - filed this Petition for Review on certiorari on the solequestion of whether or not the original unaltered textsubsequent alterations and insertions were voided by theCourt for lack of authentication by the full signature otestatrix, should be probated or not, with her as sole heir.

Issue:

WON holographic will may be probated though erasure there

was not authenticated by testatrix by affixing her signature.

Held:

Ordinarily, when a number of erasures, corrections,interlineations made by the testator in a holographic Will not been noted under his signature, ... the Will is not thinvalidated as a whole, but at most only as respectparticular words erased, corrected or interlined.

However, when as in this case, the holographic Will in dhad only one substantial provision, which was altere

substituting the original heir with another, but which altedid not carry the requisite of full authentication by thsignature of the testator, the effect must be that the entire voided or revoked for the simple reason that nothing remathe Will after that which could remain valid. To state that thas first written should be given efficacy is to disregarseeming change of mind of the testatrix. But that change ofcan neither be given effect because she failed to authenticin the manner required by law by affixing her full signature,

Ruling in Velasco, supra, must be held confined to insertions, cancellations, erasures or alterations in a hologWill, which affect only the efficacy of the altered themselves but not the essence and validity of the Will itseit is, with the erasures, cancellations and alterations made btestatrix herein, her real intention cannot be determinedcertitude.

Petition dismissed and TC Decision affirmed in toto._____________________________________________________


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4. MICIANO VS BRIMO

Facts:

The partition of the estate left by the deceased Joseph G. Brimois in question in this case.

The judicial administrator of this estate filed a scheme ofpartition.

Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:(1) The approval of said scheme of partition;

(2) denial of his participation in the inheritance;

(3) the denial of the motion for reconsideration of the orderapproving the partition;

(4) the approval of the purchase made by the Pietro Lana of thedeceased's business and the deed of transfer of said business;and

(5) the declaration that the Turkish laws are impertinent to thiscause, and the failure not to postpone the approval of thescheme of partition and the delivery of the deceased's businessto Pietro Lanza until the receipt of the depositions requested inreference to the Turkish laws.

The appellant's opposition is based on the facts:- that the partition in question puts into effect the

provisions of Joseph G. Brimo's will which are not inaccordance with the laws of his Turkish nationality, forwhich reason they are void as being in violation or article10 of the Civil Code which, among other things, providesthe following:

Nevertheless, legal and testamentary succes

in respect to the order of succession as well as tamount of the successional rights and the intrinsic v

of their provisions, shall be regulated by the nation

of the person whose succession is in question, whamay be the nature of the property or the country in

it may be situated.

- But the fact is that the oppositor did not prove thatestamentary dispositions are not in accordance wiTurkish laws, inasmuch as he did not present

evidence showing what the Turkish laws are omatter, and in the absence of evidence on such lawsare presumed to be the same as those of the Philipp

- It has not been proved in these proceedings whaTurkish laws are. He, himself, acknowledges it whdesires to be given an opportunity to present evidenthis point; so much so that he assigns as an error court in not having deferred the approval of the schepartition until the receipt of certain testimony requregarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to such laws does not constitute an error. It is discretionary witrial court, and, taking into consideration that the oppositogranted ample opportunity to introduce competent evidencfind no abuse of discretion on the part of the court inparticular.

- There is, therefore, no evidence in the record thanational law of the testator Joseph G. Brimo was viin the testamentary dispositions in question whicbeing contrary to our laws in force, must be complieand executed.

Therefore, the approval of the scheme of partition in this rewas not erroneous.

In regard to the first assignment of error which deals wiexclusion of the herein appellant as a legatee,

- inasmuch as he is one of the persons designated asin will, it must be taken into consideration that


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exclusion is based on the last part of the second clause ofthe will, which says:

Second. I like desire to state that although by law, I am aTurkish citizen, this citizenship having been conferredupon me by conquest and not by free choice, nor bynationality and, on the other hand, having resided for aconsiderable length of time in the Philippine Islands whereI succeeded in acquiring all of the property that I nowpossess, it is my wish that the distribution of my propertyand everything in connection with this, my will, be made

and disposed of in accordance with the laws in force in thePhilippine islands, requesting all of my relatives to respectthis wish, otherwise, I annul and cancel beforehandwhatever disposition found in this will favorable to theperson or persons who fail to comply with this request.

- The institution of legatees in this will is conditional, andthe condition is that the instituted legatees must respectthe testator's will to distribute his property, not inaccordance with the laws of his nationality, but inaccordance with the laws of the Philippines.

- If this condition as it is expressed were legal and valid,any legatee who fails to comply with it, as the herein

oppositor who, by his attitude in these proceedings hasnot respected the will of the testator, as expressed, isprevented from receiving his legacy.

- The fact is, however, that the said condition is void, beingcontrary to law, for article 792 of the civil Code providesthe following:

Impossible conditions and those contrary to law or good

morals shall be considered as not imposed and shall not

prejudice the heir or legatee in any manner whatsoever,even should the testator otherwise provide.

- And said condition is contrary to law because it expresslyignores the testator's national law when, according toarticle 10 of the civil Code above quoted, such nationallaw of the testator is the one to govern his testamentarydispositions.

- Said condition then, in the light of the legal provisionsabove cited, is considered unwritten, and the institution of

legatees in said will is unconditional and conseqvalid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regthe law which shall govern it, and to the condition imposedthe legatees, is null and void, being contrary to law.

- All of the remaining clauses of said will with alldispositions and requests are perfectly valid and effit not appearing that said clauses are contrary ttestator's national law.

distribution of the estate be made in such a manner as to inthe herein appellant Andre Brimo as one of the legatees, anscheme of partition submitted by the judicial administraapproved in all other respects.

_____________________________________________________

5. BONILLA VS. ARANZA

Facts:

Appellant filed a petition for the probate of the holographic Ricardo Bonilla and the issuance of letters testamentary favor.

Opposed by the appellees Amparo Aranza Bonilla, WiBonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla ofollowing grounds:

(1) The alleged holographic was not a last will but mereinstruction as to the management and improvement oschools and colleges founded by decedent Ricardo B. Bonilla

(2) Lost or destroyed holographic wills cannot be provsecondary evidence unlike ordinary wills.

TC denied MTD Appellees MR TC - dismissed the petition for the probate of the will of R

B. Bonilla. The court said:

- that once the original copy of the holographic will is copy thereof cannot stand in lieu of the original.


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- In Gam vs. Yap, SC held that 'in the matter of holographic

wills the law, it is reasonable to suppose, regards thedocument itself as the material proof of authenticity ofsaid wills.

- that the alleged holographic will was executed on January25, 1962 while Ricardo B. Bonilla died on May 13, 1976.

- In view of the lapse of more than 14 years from the timeof the execution of the will to the death of the decedent,

the fact that the original of the will could not be locatedshows to our mind that the decedent had discarded beforehis death his allegedly missing Holographic Will.

Appellant's MR - denied. Hence, an appeal to CA.

Issue:

WON a holographic will which was lost or cannot be found can be provedby means of a photostatic copy.

Held:

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 arerequired.

- However, if the holographic will has been lost or destroyedand no other copy is available, the will can not beprobated because the best and only evidence is thehandwriting of the testator in said will.

- It is necessary that there be a comparison besample handwritten statements of the testator anhandwritten will.

- But, a photostatic copy or xerox copy of the hologwill may be allowed because comparison can be with the standard writings of the testator.

- In the case of Gam vs. Yap, SC ruled that - execution and the contents of a lost or destholographic will may not be proved by the bare test

of witnesses who have seen and/or read such will. Titself must be presented; otherwise, it shall produeffect. The law regards the document itself as maproof of authenticity." But, in Footnote 8 of said decit says that "Perhaps it may be proved by a photogor photostatic copy. Even a mimeographed or ccopy; or by other similar means, if any, wherebauthenticity of the handwriting of the deceased mexhibited and tested before the probate cEvidently, the photostatic or xerox copy of theor destroyed holographic will may be adm

because then the authenticity of the handwritithe deceased can be determined by the pr

court.

Holographic will may be probated._____________________________________________________

6. DE LA CERNA, ET AL. VS POTOT, ET AL.

Facts:

SPS. Bernabe de la Serna and Gervasia Rebaca executed last will and testament

- in the local dialect- whereby they willed that "our two parcels of land acq

during our marriage together with all improvethereon shall be given to Manuela Rebaca, our whom we have nurtured since childhood, because Gonot give us any child in our union, Manuela Rebacamarried to Nicolas Potot", and that "while each o


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testators is yet living, he or she will continue to enjoy thefruits of the two lands aforementioned"

Bernabe dela Serna died will was submitted to probate by said Gervasia and Manuela

which, after due publication as required by law and there beingno opposition, heard the evidence, and orderer probate

Upon death of Gervasia Rebaca another petition for the probateof the same will insofar as Gervasia was concerned was filed

- but for failure of the petitioner, Manuela R. Potot and herattorney, Manuel Potot to appear, for the hearing of saidpetition, the case was dismissed

LC - declared the testament null and void, for being executedcontrary to the prohibition of joint wills in the Civil Code (Art.

669, Civil Code of 1889 and Art. 818, Civil Code of thePhilippines);

CA- reversed LC, on the ground that the decree of probate in1939 was issued by a court of probate jurisdiction and conclusiveon the due execution of the testament.

- that:It is true the law (Art. 669, old Civil Code; Art. 818,

new Civil Code). prohibits the making of a will jointly by twoor more persons either for their reciprocal benefit or for thebenefit of a third person.

However, this form of will has long been sanctioned byuse, and the same has continued to be used;

and when, as in the present case, one such joint lastwill and testament has been admitted to probate by finalorder of a Court of competent jurisdiction, there seems to be

no alternative except to give effect to the provisions thereofthat are not contrary to law, as was done in the case ofMacrohon vs. Saavedra, wherein SC gave effect to theprovisions of the joint will therein mentioned, saying,"assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the dechusband, Bernabe de la Cerna.

Issue:WON will of Gervasia Rebaca may be probated.

Held:

Appealed decision correctly held that the final decree of proentered in 1939 by LC (when the testator, Bernabe de la Cdied), has conclusive effect as to his last will and testa

despite the fact that even then the Civil Code already decreinvalidity of joint wills, whether in favor of the joint testreciprocally, or in favor of a third party (Art. 669, old Civil C

The error thus committed by the probate court was an erlaw, that should have been corrected by appeal, but whicnot affect the jurisdiction of the probate court, nor the conceffect of its final decision, however erroneous.

A final judgment rendered on a petition for the probate of abinding upon the whole world and public policy and practice demand that at the risk of occasional errors judgmcourts should become final at some definite date fixed by la

Petitioners, as heirs and successors of the late Bernabe Cerna, are concluded by the 1939 decree admitting his wprobate.

The contention that being void the will cannot be validoverlooks that the ultimate decision on Whether an act is vavoid rests with the courts, and here they have spokenfinality when the will was probated in 1939.

On this court, the dismissal of their action for partitioncorrect.

But the Court of Appeals should have taken into account alavoid future misunderstanding, that the probate decree incould only affect the share of the deceased husband, Bernala Cerna.


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- It could not include the disposition of the share of thewife, Gervasia Rebaca, who was then still alive, and overwhose interest in the conjugal properties the probatecourt acquired no jurisdiction, precisely because herestate could not then be in issue.

- Be it remembered that prior to the new Civil Code, a willcould not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estateof the wife was concerned, must be, on her death, reexaminedand adjudicated de novo, since a joint will is considered aseparate will of each testator.

Thus regarded, the holding of LC that the joint will is oneprohibited by law was correct as to the participation of thedeceased Gervasia Rebaca in the properties in question.

Therefore, the undivided interest of Gervasia Rebaca should passupon her death to her heirs intestate, and not exclusively to thetestamentary heir, unless some other valid will in her favor isshown to exist, or unless she be the only heir intestate of said

Gervasia.

It is unnecessary to emphasize that the fact that joint willsshould be in common usage could not make them valid when ourCivil Codes consistently invalidated them, because laws are onlyrepealed by other subsequent laws, and no usage to the contrarymay prevail against their observance

Judgment of CA affirmed

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succession aug. 10

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