Maloto v.

Court of Appeals

G.R. No. 76464 February 29, 1988

Sarmiento, J. (Ponente)

Facts:
1. Petitioners and respondents are the neices/nephews or Adriana Maloto who died in 1963. The four
heirs believed that the deceased did not leave a will, hesnce they filed an intestate proceeding. However,
the parties executed an extrajudicial settlement of the estate dividing it into four equal parts.

2. In 1967, Atty. Sulpicio Palma, ex-associate of the deceased's counsel allegedly discovered her last will
which was purportedly dated 1940, inside a cabinet. Hence the annulment of the proceedings and a
probate petition was filed by the devisees and legatees. The said will was allegedly burned by the
househelp under the instruction of the deceased.

3. The lower court denied the probate on the ground that the animus revocandi in the burning of the will
was sufficiently proven.

Issue: Whether or not there was valid revocation of the will

RULING: No, there was no revocation. For a valid revocation to occur,the 'corpus' and 'animus' must
concur, one without the other will not produce a valid revocation. The physical act of destruction of a will
must come with an intention to revoke (animus revocandi). In this case, there's paucity of evidence to
comply with the said requirement. The paper burned was not established to be the will and the burning
though done under her express direction was not done in her presence.

Under Art. 830, the physical act of destruction, in this case the burning of the will, does not constitute an
effective revocation, unless it is coupled with animus revocandi on the part of the testator. Since animus is
a state of mind, it has to be accompanied by an overt physical act of burning, tearing, obliterating or
cancelling done by the testator himself or by another under his express direction and presence.

Diaz v. De Leon
G.R. No. 17714 May 31, 1922

Facts:
1. Jesus de Leon executed 2 wills, the second will was not deemed in conformance to the requirements
under the law. After executing his first will, he asked it to be immediately returned to him. As it was
returned, he instructed his servant to tear it. This was done in the testator's presence and his nurse. After
sometime, he was asked by his physician about the incident wherein he replied that the will has already
been destroyed.

Issue: Whether or not there was a valid revocation of the will

RULING: Yes. His intention to revoke is manifest from the facts that he was anxious to withdraw or
change the provisions he made in the first will. This fact was shown from his own statements to the
witnesses and the mother superior of the hospital where he was subsequently confined. The original will

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which was presented for probate is deemed destroyed hence, it cannot be probated as the last will and
testament of testator.

G.R. No. L-2538 September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO,
petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and
testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-
appellants brought the case on appeal to this Court for the reason that the value of the properties involved
exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending or ascending line. He was survived, however, by
his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-
appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido
Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on
August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in
1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition,
which was docketed as special proceeding No. 8022 seeking the probate of the will executed by the
deceased on June 20, 1939. There being no opposition, the will was probated. However, upon petition
filed by the herein oppositors, the order of the court admitting the will to probate was set aside
and the case was reopened. After hearing, at which both parties presented their evidence, the court
rendered decision denying the probate of said will on the ground that the petitioner failed to prove that the
same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed
another petition for the probate of the will executed by the deceased on August 17, 1918, which was
docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition
to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the
will of 1918; (2) that said will has not been executed in the manner required by law and (3 ) that the will
has been subsequently revoked. But before the second petition could be heard, the battle for liberation
came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed,
but the same was found to be impossible because neither petitioner nor oppositors could produce the
copies required for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946,
similar to the one destroyed, to which the oppositors filed an opposition based on the same grounds as
those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the
court issued an order admitting the will to probate already stated in the early part of this decision. From
this order the oppositors appealed assigning six errors, to wit.

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I. The probate court erred in not holding that the present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable
her to obtain the probate of another alleged will of Molo dated 191.

II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate
of Molo's alleged will of 1918.

III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands"
and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by
Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding
that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in
order to enable her to obtain the probate of the will executed by the deceased on August 17, 1918,
pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the
witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of her
knowledge that said will intrinsically defective in that "the one and only testamentory disposition thereof
was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a
series of steps deliberately taken by petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed would better safeguard her right to inherit from
the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings No.
8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise
them in these proceedings which are entirely new and distinct and completely independent from the other
is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this
case. They are merely based on the presumptions and conjectures not supported by any proof. For this
reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub
silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is
indeed no evidence which may justify the insinuation that petitioner had deliberately intended to frustrate
the probate of the 1939 will of the deceased to enable her to seek the probate of another will other than a
mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the
room to answer an urgent call of nature when Artemio Reyes was signing the will and the failure of
petitioner later to impeach the character of said witness in spite of the opportunity given her by the court
to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been
explained by petitioner when she informed the court that she was unable to impeach the character of her
witness Canuto Perez because of her inability to find witnesses who may impeach him, and this
explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to

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determine. It is an incident that comes within the province of the former case. The failure of petitioner to
present the testimony of Artemio Reyes at the hearing has also been explained, and it appears that
petitioner has filed because his whereabouts could not be found. Whether this is true or not is also for this
Court to determine. It is likewise within the province and function of the court in the former case. And the
unfairness of this imputation becomes more glaring when we stock of the developments that had taken
place in these proceedings which show in bold relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed
on February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently,
however, upon petition of the herein oppositors, the order of the court admitting said will to probate was
set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The
reopening was ordered because of the strong opposition of the oppositors who contended that he will had
not been executed as required by law. After the evidence of both parties had been presented, the
oppositors filed an extensive memorandum wherein they reiterated their view that the will should be
denied probate. And on the strenght of this opposition, the court disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the
testamentary disposition in her favor invalid and ineffective, because it is a "disposicion captatoria",
which knowledge she may easily acquire through consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will. She could accomplish her desire by
merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of the
will executed in 1918. But for her conscience was clear and bade her to take the only proper step possible
under the circumstances, which is to institute the necessary proceedings for the probate of the 1939 will.
This she did and the will was admitted to probate. But then the unexpected happened. Over her vigorous
opposition, the herein appellants filed a petition for reopening, and over her vigorous objection, the same
was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault
that the case was reopened? Is it her fault that the order admitting the will to probate was set
aside? That was a contingency which petitioner never expected. Had appellants not filed their opposition
to the probate of the will and had they limited their objection to the intrinsic validity of said will, their plan to
defeat the will and secure the intestacy of the deceased would have perhaps been accomplished. But
they failed in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to
impute bad faith petitioner simply because she exerted every effort to protect her own interest and
prevent the intestacy of the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and
third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty
or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her
effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills
she was in by her husband as his universal heir. Nor can she be charged with bad faith far having done
so because of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous in
protecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased
which was denied probate. They contend that, notwithstanding the disallowance of said will, the
revocatory clause is valid and still has the effect of nullifying the prior of 1918.

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Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs.
Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of
this case. Hence, the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we are
indeed impressed by their striking similarity with the facts of this case. We do not need to recite here what
those facts are; it is enough to point out that they contain many points and circumstances in common. No
reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not
apply and control the present case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason
that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as
to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the
soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it
is archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They
maintain that said ruling is no longer controlling but merely represents the point of view of the minority and
should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of American origin and as such should follow the
prevailing trend of the majority view in the United States. A long line of authorities is cited in support of
this contention. And these authorities hold the view, that "an express revocation is immediately
effective upon the execution of the subsequent will, and does not require that it first undergo the
formality of a probate proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that view
appears to be in controlling the states where the decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the
search we have made of American authorities on the subject, we found ourselves in a pool of conflicting
opinions perhaps because of the peculiar provisions contained in the statutes adopted by each State in
the subject of revocation of wills. But the impression we gathered from a review and the study of the
pertinent authorities is that the doctrine laid down in the Samson case is still a good law . On page 328 of
the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following
passages which in our opinion truly reflect the present trend of American jurisprudence on this
matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit
the revocation of a will by another writing provide that to be effective as a revocation, the writing must be
executed with the same formalities which are required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke a prior will. It has been held that a
writing fails as a revoking instrument where it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to
modify a will by a written instrument subsequently prepared but not executed in the manner required for a
will.

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SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid
because of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking
will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a
defectively executed will or codicil, even though the latter contains a clause expressly revoking the former
will, in a jurisdiction where it is provided by a controlling statute that no writing other than a testamentary
instrument is sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly where
the statute provides that a will may be revoked by a subsequent will or other writing executed with the
same formalities as are required in the execution of wills, a defectively executed will does not revoke a
prior will, since it cannot be said that there is a writing which complies with the statute. Moreover, a will or
codicil which, on account of the manner in which it is executed, is sufficient to pass only personally does
not affect dispositions of real estate made by a former will, even though it may expressly purport to do so.
The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur.,
328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the "application of rules where second will is invalid",
among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator who has not sufficient mental capacity
to make a will or the will is procured through undue influence, or the such, in other words, where the
second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker
University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no
justification for abondoning it as now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will,
codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should
be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in
the case of wills", simply because it was denied probate. And even if it be regarded as any other writing
within the meaning of said clause, there is authority for holding that unless said writing is admitted to
probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot
still be given effect because of the presumption that it was deliberately revoked by the testator himself.
The oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the
recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for
that reason the will submitted by petitioner for probate in these proceedings is only a duplicate of said
original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original of the
1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939.
The only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared
it, gave the original and copies to the testator himself and apparently they remained in his possession
until he executed his second will in 1939. And when the 1939 will was denied probate on November 29,
1943, and petitioner was asked by her attorney to look for another will, she found the duplicate copy
(Exhibit A) among the papers or files of the testator. She did not find the original.

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If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it
may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained
in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since
the first will was executed, the original of the will had been misplaced or lost, and forgetting that there was
a copy, the testator deemed it wise to execute another will containing exactly the same testamentary
dispositions. Whatever may be the conclusion we may draw from this chain of circumstances, the
stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of the first will by the
testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he
had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the
earlier will was but the necessary consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it
is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative
revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where the testator
cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to
make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is n limited to the existence of some other document,
however, and has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68
C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of another will so as
fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of
a new disposition intended to be substituted, the revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon
whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions, and
hence prevents the revocation of the original will. But a mere intent to make at some time a will in the
place of that destroyed will not render the destruction conditional. It must appear that the revocation is
dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator could
be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the
effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that
the will of 1939 has been validly executed and would be given due effect. The theory on which this
principle is predicated is that the testator did not intend to die intestate. And this intention is clearly
manifest when he executed two wills on two different occasion and instituted his wife as his universal heir.
There can therefore be no mistake as to his intention of dying testate.

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The remaining question to be determined refers to the sufficiency of the evidence to prove the due
execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner
presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary
public who prepared and notarized the will upon the express desire and instruction of the testator, The
testimony of these witnesses shows that the will had been executed in the manner required by law. We
have read their testimony and we were impressed by their readiness and sincerity. We are convinced that
they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1âwphïl.nêt

Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.

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