EN BANC

[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, oppositor-appellants.
Claro M. Recto and Serafin C. Dizon, for appellants.
Delgado & Flores, for appellee.
SYLLABUS
1. WILLS; REVOCATION BY SUBSEQUENT WILL; EFFECT OF VOID
REVOCATORY CLAUSE. 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 annuling the previous will, inasmuch as
said revocatory clause is void (Samson vs. Naval, 41 Phil., 838).
2. ID.; PROBATE; DEPENDENT RELATIVE REVOCATION. 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 where it is founded on the mistaken belief that the
later will has been validly executed and would be given due effect. The earlier will
can still be admitted to probate under the principle of "dependent relative revocation".
The theory on which this principle is predicated is that the testator did not intend to
die intestate. And this intention is clearly manifest where he executed two wills on
two different occasions and instituted his wife as his universal heir.

DECISION

BAUTISTA ANGELO, J :
p

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 MarianoMolo 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 latter will contains a clause which expressly revokes
the 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 as already stated in the early part of this decision. From this order the
oppositors appealed assigning six errors, to wit:
"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 1918.
"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 which in their opinion indicate that petitioner
connived with witness Canuto Perez in an effort to defeat and frustrate the probate of
the 1939 will because of her knowledge that said will was intrinsically defective in
that "the one and only testamentary disposition thereof was a 'disposicin 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 deceased.
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 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 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 rehearing has also been explained, and it appears that petitioner has failed because
his whereabouts could not be found. Whether this is true or not is not 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
take 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 the 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
strength 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
"disposicin captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need for her to go through the ordeal 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 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 to 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 of estoppel which would prevent her from
seeking the probate of the 1918 will simply because her effort to obtain the allowance
of the 1939 will has failed considering that in both the 1918 and 1939 wills she was
instituted 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 for being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained
in the 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 will of 1918.
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 in that case
is here controlling.
There is merit in this contention. We have carefully read the facts involved in
the Samson case and 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 why 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 there are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be controlling in 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 on the subject of revocation of wills. But the impression we gathered
from a review and 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 prior 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 nontestamentary 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.
"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 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 (1935) 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 abandoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure)
provides that a will may be revoked "by some will, codicil, or other writing executed
as provided 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 contend 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 revocatory clause
contained in said will, himself deliberately destroyed the original of the 1918 will, and
that for this 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.
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 left to mere
inference or conjecture.
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 some reason. The doctrine is not 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 the 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 the
new testamentary disposition, upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive condition, and hence prevents
the revocation of the original will. But a mere intent to make at some time a will
in 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. 233.)

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

occasions and instituted his wife as his universal heir. There can therefore be no
mistake as to his intention of dying testate.
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.
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo, JJ., concur.
Reyes, J., concurs in the result.

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(Vda. de Molo v. Molo, G.R. No. L-2538, [September 21, 1951])