-46- Written Forms of Wills

G.R. No. 1439 March 19, 1904

ANTONIO CASTAÑEDA, plaintiff-appellee,

vs.
JOSE E. ALEMANY, defendant-appellant.

Ledesma, Sumulong and Quintos for appellant.

The court erred in holding that all legal formalities had been complied with in the execution of
the will of Doña Juana Moreno, as the proof shows that the said will was not written in the
presence of under the express direction of the testratrix as required by section 618 of the Code of
Civil Procedure.

Antonio V. Herrero for appellee.

The grounds upon which a will may be disallowed are limited to those mentioned in section 634
of the Code of Civil Procedure.

WILLARD, J.:

(2) The evidence in this case shows to our satisfaction that the will of Doña Juana Moreno
was duly signed by herself in the presence of three witnesses, who signed it as witnesses
in the presence of the testratrix and of each other. It was therefore executed in conformity
with law.

There is nothing in the language of section 618 of the Code of Civil Procedure which supports
the claim of the appellants that the will must be written by the testator himself or by someone
else in his presence and under his express direction. That section requires (1) that the will be in
writing and (2) either that the testator sign it himself or, if he does sign it, that it be signed by
some one in his presence and by his express direction. Who does the mechanical work of writing
the will is a matter of indifference. The fact, therefore, that in this case the will was typewritten
in the office of the lawyer for the testratrix is of no consequence. The English text of section 618
is very plain. The mistakes in translation found in the first Spanish edition of the code have been
corrected in the second.

(2) To establish conclusively as against everyone, and once for all, the facts that a will was
executed with the formalities required by law and that the testator was in a condition to make a
will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec.
625.) The judgment in such proceedings determines and can determine nothing more. In them the
court has no power to pass upon the validity of any provisions made in the will. It can not decide,
for example, that a certain legacy is void and another one valid. It could not in this case make
any decision upon the question whether the testratrix had the power to appoint by will a guardian
for the property of her children by her first husband, or whether the person so appointed was or
was not a suitable person to discharge such trust.
All such questions must be decided in some other proceeding. The grounds on which a will may
be disallowed are stated the section 634. Unless one of those grounds appears the will must be
allowed. They all have to do with the personal condition of the testator at the time of its
execution and the formalities connected therewith. It follows that neither this court nor the court
below has any jurisdiction in his proceedings to pass upon the questions raised by the appellants
by the assignment of error relating to the appointment of a guardian for the children of the
deceased.

It is claimed by the appellants that there was no testimony in the court below to show that the
will executed by the deceased was the same will presented to the court and concerning which this
hearing was had. It is true that the evidence does not show that the document in court was
presented to the witnesses and identified by them, as should have been done. But we think that
we are justified in saying that it was assumed by all the parties during the trial in the court below
that the will about which the witnesses were testifying was the document then in court. No
suggestion of any kind was then made by the counsel for the appellants that it was not the same
instrument. In the last question put to the witness Gonzales the phrase “this will” is used by the
counsel for the appellants. In their argument in that court, found on page 15 of the record, they
treat the testimony of the witnesses as referring to the will probate they were then opposing.

The judgment of the court below is affirmed, eliminating therefrom, however, the clause “el cual
debera ejecutarse fiel y exactamente en todas sus partes.” The costs of this instance will be
charged against the appellants.

Arellano, C. J., Torres, Cooper, Mapa, McDonough and Johnson, JJ., concur.
 -73- Attestation Clause

G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan,
Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the signatures
of the three witnesses to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is
‘a memorandum of the facts attending the execution of the will’ required by law to be made by
the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation
clause cannot be considered as an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the attestation
clause. This is untenable, because said signatures are in compliance with the legal mandate that
the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by
the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and any or all of the
witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So
ordered with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions
BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of the
law and, therefore, should be admitted to probate . It appears that the will was signed by the
testator and was attested by three instrumental witnesses, not only at the bottom, but also on the
left-hand margin. The witnesses testified not only that the will was signed by the testator in their
presence and in the presence of each other but also that when they did so, the attestation clause
was already written thereon. Their testimony has not been contradicted. The only objection set
up by the oppositors to the validity of the will is the fact that the signatures of the instrumental
witnesses do not appear immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil.,
476), this court said that when the testamentary 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 such a case, the court said,
the requirement of the signatures on the left hand margin was not necessary because the purpose
of the law — which is to avoid the substitution of any of the sheets of the will, thereby changing
the testator’s dispositions — has already been accomplished. We may say the same thing in
connection with the will under consideration because while the three instrumental witnesses did
not sign immediately by the majority that it may have been only added on a subsequent occasion
and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause
was already written in the will when the same was signed.

The following observation made by this court in the Abangan case is very fitting:

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 I 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 already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary useless
and frustrative of the testator’s last will, must be disregarded. (supra)

We should not also overlook the liberal trend of the New Civil Code in the matter of
interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation that
would have the effect of preventing intestacy (article 788 and 791, New Civil Code)

I am therefore of the opinion that the will in question should be admitted to probate.

Feria, J., concurs.

TUASON, J., dissenting:

I 5oncur in Mr. Justice Bautista’s dissenting opinion and may add that the majority decision
erroneously sets down as a fact that the attestation clause was no signed when the witnesses
signatures appear on the left margin and the real and only question is whether such signatures are
legally sufficient.

The only answers, in our humble opinion, is yes. The law on wills does not provide that the
attesting witness should sign the clause at the bottom. In the absence of such provision, there is
no reason why signatures on the margin are not good. A letter is not any the less the writter’s
simply because it was signed, not at the conventional place but on the side or on top.

Feria, J., concurs.

 -57 – Testator’s Presence

G.R. No. L-4132 March 23, 1908

In the matter of the will of MARIA SIASON Y MADRID DE LEDESMA, Probate

proceedings.

Antonio Jayme for petitioner.

TRACEY, J.:

In this special proceedings for the legalization of a will, the Court of First Instance refused
probate on the ground that the instrument was not subscribed by the witnesses in the presence of
the testatrix and of each other as required by section 618 of the Code of Civil Procedure.

The testatrix was ill and confined to her house, the execution of the will taking place in the sala
where she lay upon a sofa. The witnesses differ as to whether the testatrix from where she lay
could read what was written at the table; and the first witness, after signing, went away from the
table. These two circumstances do not impair the validity of the execution of the will. The
witnesses being in the same apartment were all present and the statute does not exact that either
they are the testator shall read what has been written. Had one of the witnesses left the room or
placed himself so remotely therein as to be cut off from actual participation in the proceedings,
then the subscription might not have taken place in his presence within the meaning of the law.

A second objection is suggested on this appeal, that the signature to the instrument is defective. It
ends in this form:

At the request of Señora Maria Siason.

CATALINO GEVA.

T. SILVERIO. FRUCTUOSO G. MORIN.

RAFAEL ESPINOS.

Section 618 of the Code of Civil Procedure reads as follows:

Requisites of will. — No will, except as provided in the preceding section, shall be valid
to pass any estate, real of personal, nor charge or effect the same, unless it be in writing
and signed by the testator, 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 each of the other. The attestation
shall estate the fact that the testator signed the will, or caused it to be signed by some
other person, at his express direction, in the presence of three witnesses, and that they
 attested and subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is proven that the
will was in fact signed and attested as in this section provided.

The misunderstanding of this section arising from the incorrect rendering of into Spanish in the
official translation was corrected by what was said in the decision of this court in Ex parte
Arcenas (4 Phil. Rep., 700). Confusion has also come out of the different wording of the two
clauses of this section, the one specifying the requisites of execution and the other those of the
attestation clause. The concluding sentence of the section, however, makes clear that the former
and not the latter is to control. Consequently the will must be signed by the testator, or by the
testator’s name written by some other person in his presence, and by his express direction,” and
the question presented in this case is, Are the words “Señora Maria Siason” her name written by
some other person? They undoubtedly are her name, but occurring as they do after the words “at
request of,” it is contended that they form a part of the recital and not a signature, the only
signature being the names of the witnesses themselves. In Guison vs. Concepcion (5 Phil. Rep.,
551) it was held that there was no signature, although the attestation clause which followed the
will contained the name of the testatrix and was thereafter signed by the witnesses. The
distinction between that case and the present one is one of the extreme nicety, and in the
judgment of the writer of this opinion should not be attempted. The majority of the court,
however, are of the opinion that the distinction is a tenable one inasmuch as in the Concepcion
will the name of the testatrix occurred only in the body of the attestation clause, after the first
signatures of the witnesses, whereas in this will it immediately follows the testament itself and
precedes the names of the witnesses.

In sustaining this form of signature, this court does not intend to qualify the decisions in Ex parte
Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero.1 In the
Arcenas case the court pointed out the correct formula for a signature which ought to be
followed, but did not mean to exclude any other form substantially equivalent.

The decision of the court below is reversed, without costs, and that court is directed to admit the
instrument before it to probate as the last will of the testatrix. So ordered.

Arellano, C.J., Torres and Mapa, JJ., concur.

Willard, J., concurs in the result.

Separate Opinions

CARSON, J., dissenting:

I dissent. This court has frequently held that a will should not be probated unless there has been
strict compliance in its execution with all the “requisites of a will” as prescribed in section 618 of
the Code of Civil Procedure.
This section provides that the will must be signed by the testator or that it must be signed by the
testator’s name written by some other person. I think it is quite clear that the will in question was
signed by the name of the witness written at the request of the testatrix, but that it was not signed
by the name of the testatrix written by the witness.

We have heretofore called attention to mistakes in the translation into Spanish of section 618 of
the Code of Civil Procedure in the first official translation. I think, however, that the translation
in the majority opinion, taken from the last official translation is also imperfect. It fails to convey
accurately the idea expressly set out in the English version, which requires that where the testator
does not sign his own name, the will must be signed by the name of the testator attached by some
other person. The Spanish version seems to prescribe merely that in such cases the will shall bear
(lleve) the name of the testator written by some other person. The English version clearly
prescribes that the name of the testator shall be affixed to the will as a signature and we have
already decided that it is not sufficient that the name of the testator appear in the attestation
clause, because in such cases the name is not affixed to the will as a signature. The name of the
testatrix was not affixed to the instrument under consideration as a signature, and appears there
merely in the recital of the fact that she requested some one to sign for her.

The name of the testatrix appeared in the attestation clause at the end of the will in the case of
Guison vs. Concepcion (5 Phil. Rep., 551), and it was placed there for precisely the same
purpose as it appears in the will under consideration; that is, in a recital of fact that the testatrix
had requested some one to attach her signature to the will. We declared in that case, that the will
could not be probated because the name of the testatrix was not subscribed to the will in
accordance with the provisions of section 618 of the Code of Civil Procedure. I am unable to
perceive the distinction between that case and the case under consideration.

I recognize that in the case under consideration a holding that the name of the testatrix is not
signed to the will in the manner prescribed by law would appear to defeat the intent of the
testatrix, and to invalidate the instrument for a failure to comply with a mere technical formality.
But the same reasons of public policy which dictated the provisions of law prescribing certain
requisites without which no will is valid, no matter how conclusive the proof as to the fact that
the rejected instrument contains the last will of the deceased, and was prepared as such in
absolute good faith, imposes upon the courts the duty of scrutinizing every will submitted for
probate to ascertain whether there has been a strict compliance in its execution with the
requisites prescribed by law.

Johnson, J., concurs.

Footnotes

TRACEY, J.:
1
Page 357, supra.
 -89 – Special Formalities of Holographic Will

G.R. No. L-12190 August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.

Arturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the deceased,
substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang

aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamag-anakang sumusunod:

Vicente Esguerra, Sr. 5 Bahagi

.............................................
Fausto E. Gan 2 Bahagi
.........................................................
Rosario E. Gan 2 Bahagi
.........................................................
Filomena Alto 1 Bahagi
..........................................................
Beatriz Alto 1 Bahagi
..............................................................

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking

ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa
ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa
bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At
 kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang
matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1
refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this
appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by
the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario
Gan Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her
husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting, signed and dated by
her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the
morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above transcribed, in the presence
of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon
of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to
read the will in the presence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece.
To these she showed the will, again in the presence of Felina Esguerra, who read it for the third
time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness,
she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours
later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason
of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet,
opened it and read the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians, Dr.
Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to
the United States wherein for several weeks she was treated for the disease; that thereafter she
felt well and after visiting interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most serious of which happened
in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors
and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's advice the patient
stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap
made no will, and could have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important
of which were these: (a) if according to his evidence, the decedent wanted to keep her will a
secret, so that her husband would not know it, it is strange she executed it in the presence of
Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it is improbable that the
decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it
is also improbable that her purpose being to conceal the will from her husband she would carry it
around, even to the hospital, in her purse which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital
and that the will was there, it is hard to believe that he returned it without destroying the will, the
theory of the petitioner being precisely that the will was executed behind his back for fear he will
destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and
of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or
most of them, were presented in the motion to reconsider; but they failed to induce the court a
quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We
deem it unnecessary to go over the same matters, because in our opinion the case should be
decided not on the weakness of the opposition but on the strength of the evidence of the
petitioner, who has the burden of proof.

The Spanish Civil Code permitted the execution of holographic wills along with other forms.
The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form,
thereby repealing the other forms, including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "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."
This is indeed a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and
three credible witnesses in each and every page; such witnesses to attest to the number of sheets
used and to the fact that the testator signed in their presence and that they signed in the presence
of the testator and of each other.

The object of such requirements it has been said, is to close the door against bad faith and fraud,
to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40
Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and
be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However,
formal imperfections may be brushed aside when authenticity of the instrument is duly proved.
(Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)

Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
742). From the testimony of such witnesses (and of other additional witnesses) the court may
form its opinion as to the genuineness and authenticity of the testament, and the circumstances its
due execution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded,
since as stated, they need no witnesses; provided however, that they are "entirely written, dated,
and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard, since it could at any
time, be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate
of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's
handwriting) and if the court deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will. They
may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it
is in the testator's hand. However, the oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who after comparing the will with other
writings or letters of the deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the document,
whether the will submitted to it has indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity3 — the testator's
handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the
testator? How can the oppositor prove that such document was not in the testator's handwriting?
His witnesses who know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they
may have been shown a faked document, and having no interest to check the authenticity thereof
have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have
not "been shown" a document which they believed was in the handwriting of the deceased. Of
course, the competency of such perjured witnesses to testify as to the handwriting could be tested
by exhibiting to them other writings sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has
seen and read a document which he believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to
the execution, but also as to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed
will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet
such Rules could not have contemplated holographic wills which could not then be validly made
here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is that it
may be lost or stolen4 — an implied admission that such loss or theft renders it useless..

This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
(Art. 689) who shall subscribe it and require its identity to be established by the three witnesses
who depose that they have no reasonable doubt that the will was written by the testator (Art.
691). And if the judge considers that the identity of the will has been proven he shall order that it
be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse and the legitimate
ascendants and descendants be summoned so that they may make "any statement they may desire
to submit with respect to the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself alone, to prevent others from
knowing either its execution or its contents, the above article 692 could not have the idea of
simply permitting such relatives to state whether they know of the will, but whether in the face of
the document itself they think the testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying
with the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is
frustrated when the document is not presented for their examination. If it be argued that such
choice is not essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and privilege to comply
with the will, if genuine, a right which they should not be denied by withholding inspection
thereof from them.

We find confirmation of these ideas--about exhibition of the document itself--in the decision of
the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of
the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it
shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del

articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del año, mes y dia en que se
otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que
el verbo se emplea, se desprende la necesidad de que el documento se encuentre en
dichas condiciones en el momento de ser presentado a la Autoridad competente, para au
adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar
que el de autos carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan
ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona
culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha
omision un defecto insubsanable . . . .

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que
los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la
tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara
la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido,
el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion 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.8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion
as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make
this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision
of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.

At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed.
The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the
handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and
of the notary, now). The loss of the holographic will entails the loss of the only medium of proof;
if the ordinary will is lost, the subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts
on the particular day, the likelihood that they would be called by the testator, their intimacy with
the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not
receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and read
the forgery; and the latter, having no interest, could easily fall for it, and in court they would in
all good faith affirm its genuineness and authenticity. The will having been lost — the forger
may have purposely destroyed it in an "accident" — the oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature —

feasibility of forgery — would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion
of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we
find it hard to believe that the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to her husband
Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from
her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not
lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the
will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will,
we think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77,
sec. 6.11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L.,
Endencia and Felix, JJ., concur.

Footnotes
1
Now a member of the Court of Appeals.
2
The contents of the alleged will are for the purposes of this decision, immaterial.
3
"Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la
letra del testador." (Scaevola, Codigo Civil, Tomo 12, p. 348.)
4
V. Sanchez Roam, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho
Civil Español (1944) Tomo 4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.
5
V. Sanchez Roman Op. Cit. Vol. 6, p. 357.
6
Manresa, Codigo Civil, 1932, Vol. 5, p. 481.
7
We have no doubt that this concept and these doctrines concerning the Spanish Civil
Code apply to our New Civil Code, since the Commission in its Report (p. 52) merely
"revived" holographic wills, i.e., those known to the Spanish Civil Law, before Act 190.
8
Perhaps it may be proved by a photographic or photostatic copy. Evena 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.
9
We are aware of some American cases that admitted lost holographic wills, upon verbal
testimony. (Sec. 41, American Law Reports, 2d. pp. 413, 414.) But the point here raised
was not discussed. Anyway it is safer to follow, in this matter, the theories of the Spanish
law.
10
Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:

"Holographic wills are peculiarly dangerous kin case of persons who have written very
title. The validity of these wills depends, exclusively on the authenticity of handwriting,
and if writing standards are not procurable, or not contemporaneous, the courts are left to
the mercy of the mendacity of witnesses. It is questionable whether the recreation of the
holographic testament will prove wise." (Lawyer's Journal, Nov. 30, 1950, pp. 556-557.)
11
Intestate of Suntay, 50 Off. Gaz., 5321.
 (29) and 105 – concept of probate will

29. LOURDES L. DOROTHEO VS CA

[G.R. No. 108581. December 8, 1999]

FACTS:
Private respondents were the legitimate children of Alejandro Dorotheo and
Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died
thereafter. Sometime in 1977, after Alejandro’s death, petitioner (not married to
Alejandro) , who claims to have taken care of Alejandro before he died, filed a special
proceeding for the probate of the latter’s last will and testament. In 1981, the court
issued an order admitting Alejandro’s will to probate. Private respondents did not
appeal from said order. In 1983, they filed a “Motion To Declare The Will Intrinsically
Void.” The trial court granted the motion and issued an order declaring Lourdes
Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and
testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors
Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the
late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be
liquidated and distributed according to the laws on intestacy upon payment of estate
and other taxes due to the government.”

Petitioner moved for reconsideration arguing that she is entitled to some

compensation since she took care of Alejandro prior to his death although she admitted
that they were not married to each other. Upon denial of her motion for reconsideration,
petitioner appealed to the Court of Appeals, but the same was dismissed for failure to
file appellant’s brief within the extended period granted. This dismissal became final
and executory on February 3, 1989 and a corresponding entry of judgment was
forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was
issued by the lower court to implement the final and executory Order.

ISSUE:

Whether or not a will admitted to probate (extrinsically valid) but intrinsically void
in an order that has become final and executory may still given effect.

HELD:

No. A will admitted to be intrinsically void though extrinsically valid may not be
given effect.
In a probate proceeding, it deals generally with the extrinsic validity of the will
sought to be probated, particularly on following aspects:
1. whether the will submitted is indeed, the decedent’s last will and
testament;
 2. compliance with the prescribed formalities for the execution of wills;
3. the testamentary capacity of the testator;
4. and the due execution of the last will and testament.

Under the Civil Code, due execution includes a determination of whether

the testator was of sound and disposing mind at the time of its execution, that he
had freely executed the will and was not acting under duress, fraud, menace or
undue influence and that the will is genuine and not a forgery, that he was of the
proper testamentary age and that he is a person not expressly prohibited by law
from making a will.

The intrinsic validity is another matter and questions regarding the same may still
be raised even after the will has been authenticated. Thus, it does not necessarily follow
that an extrinsically valid last will and testament is always intrinsically valid. Even if the
will was validly executed, if the testator provides for dispositions that deprives or impairs
the lawful heirs of their legitime or rightful inheritance according to the laws on
succession, the unlawful provisions/dispositions thereof cannot be given effect. This is
specially so when the courts had already determined in a final and executory decision
that the will is intrinsically void. Such determination having attained that character of
finality is binding on this Court which will no longer be disturbed. Not that this Court
finds the will to be intrinsically valid, but that a final and executory decision of which the
party had the opportunity to challenge before the higher tribunals must stand and should
no longer be reevaluated.

It can be clearly inferred from Article 960 of the Civil Code, on the law of successional
rights that testacy is preferred to intestacy. But before there could be testate distribution,
the will must pass the scrutinizing test and safeguards provided by law considering that
the deceased testator is no longer available to prove the voluntariness of his actions,
aside from the fact that the transfer of the estate is usually onerous in nature and that
no one is presumed to give - Nemo praesumitur donare. No intestate distribution of the
estate can be done until and unless the will had failed to pass both its extrinsic and
intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of
the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its
intrinsic validity – that is whether the provisions of the will are valid according to the laws
of succession. In this case, the court had ruled that the will of Alejandro was
extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of
intestacy apply as correctly held by the trial court.