G.R. No. L-14003 August 5, 1960 Fortunata Vda.

Fortunata Vda. de Yance, he answered positively in the witness may have been present at the execution of a holographic will,
affirmative and when he was asked again whether the none being required by law (Art. 810, new Civil Code), it becomes
penmanship referred to in the previous answer as obvious that the existence of witness possessing the requisite
FEDERICO AZAOLA, petitioner-appellant,
appearing in the holographic will (Exh. C) was hers qualifications is a matter beyond the control of the proponent. For it
vs.
(testatrix'), he answered, "I would definitely say it is hers"; is not merely a question of finding and producing any three
CESARIO SINGSON, oppositor-appellee.
that it was also established in the proceedings that the witnesses; they must be witnesses "who know the handwriting and
assessed value of the property of the deceased in Luskot, signature of the testator" and who can declare (truthfully, of course,
F. Lavides and L.B. Alcuaz for appellant. Quezon City, is in the amount of P7,000.00. even if the law does not so express) "that the will and the signature
Vicente J. Cuna and P.S. Singson for appellee. are in the handwriting of the testator". There may be no available
witness of the testator's hand; or even if so familiarized, the witnesses
The opposition to the probate was on the ground that (1) the
may be unwilling to give a positive opinion. Compliance with the rule
REYES, J.B.L., J.: execution of the will was procured by undue and improper pressure
of paragraph 1 of Article 811 may thus become an impossibility. That
and influence on the part of the petitioner and his wife, and (2) that
is evidently the reason why the second paragraph of Article 811
the testatrix did not seriously intend the instrument to be her last will,
This appeal, taken on points of law from a decision rendered on 15 prescribes that —
and that the same was actually written either on the 5th or 6th day of
January 1958 by the Court of First Instance of Quezon City in its August 1957 and not on November 20, 1956 as appears on the will.
Special Proceedings No. Q-2640, involves the determination of the
in the absence of any competent witness referred to in the
quantity of evidence required for the probate of a holographic will. preceding paragraph, and if the court deems it necessary,
The probate was denied on the ground that under Article 811 of the
expert testimony may be resorted to.
Civil Code, the proponent must present three witnesses who could
The established facts are thus summarized in the decision appealed
declare that the will and the signature are in the writing of the testatrix,
from (Rec. App. pp. 22-24): the probate being contested; and because the lone witness As can be seen, the law foresees the possibility that no qualified
presented by the proponent "did not prove sufficiently that the body witness may be found (or what amounts to the same thing, that no
"Briefly speaking, the following facts were established by of the will was written in the handwriting of the testatrix." competent witness may be willing to testify to the authenticity of the
the petitioner; that on September 9, 1957, Fortunata S. will), and provides for resort to expert evidence to supply the
Vda. de Yance died at 13 Luskot, Quezon City, known to deficiency.
The proponent appealed, urging: first, that he was not bound to
be the last residence of said testatrix; that Francisco
produce more than one witness because the will's authenticity was
Azaola, petitioner herein for probate of the holographic will, not questioned; and second, that Article 811 does not mandatorily It may be true that the rule of this article (requiring that three
submitted the said holographic will (Exh. C) whereby Maria require the production of three witnesses to identify the handwriting witnesses be presented if the will is contested and only one if no
Milagros Azaola was made the sole heir as against the
and signature of a holographic will, even if its authenticity should be contest is had) was derived from the rule established for ordinary
nephew of deceased Cesario Singson; that witness denied by the adverse party. testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco Azaola testified that he saw the holographic will Francisco, 57 Phil., 742). But it can not be ignored that the
(Exh. C) one month, more or less, before the death of the requirement can be considered mandatory only in the case of
testatrix, as the same was handed to him and his wife; that Article 811 of the Civil Code of the Philippines is to the following
ordinary testaments, precisely because the presence of at least three
the witness testified also that he recognized all the effect:
witnesses at the execution of ordinary wills is made by law essential
signatures appearing in the holographic will (Exh. C) as the to their validity (Art. 805). Where the will is holographic, no witness
handwriting of the testatrix and to reinforce said statement, need be present (Art. 10), and the rule requiring production of three
ART. 811. In the probate of a holographic will, it shall be
witness presented the mortgage (Exh. E), the special
necessary that at least one witness who knows the witnesses must be deemed merely permissive if absurd results are
power of the attorney (Exh. F), and the general power of to be avoided.
handwriting and signature of the testator explicitly declare
attorney (Exh. F-1), besides the deeds of sale (Exhs. G
that the will and the signature are in the handwriting of the
and G-1) including an affidavit (Exh. G-2), and that there
testator. If the will is contested, at least three of such
were further exhibited in court two residence certificates Again, under Article 811, the resort to expert evidence is conditioned
witnesses shall be required.
(Exhs. H and H-1) to show the signatures of the testatrix, by the words "if the Court deem it necessary", which reveal that what
for comparison purposes; that said witness, Azaola, the law deems essential is that the Court should be convinced of the
testified that the penmanship appearing in the aforesaid In the absence of any competent witnesses referred to in will's authenticity. Where the prescribed number of witnesses is
documentary evidence is in the handwriting of the testatrix the preceding paragraph, and if the court deems it produced and the court is convinced by their testimony that the ill is
as well as the signatures appearing in the aforesaid necessary, expert testimony may be resorted to. (691a). genuine, it may consider it unnecessary to call for expert evidence.
documentary evidence is in the handwriting of the testatrix On the other hand, if no competent witness is available, or none of
as well as the signatures appearing therein are the those produced is convincing, the Court may still, and in fact it should,
We agree with the appellant that since the authenticity of the will was resort to handwriting experts. The duty of the Court, in fine, is to
signatures of the testatrix; that said witness, in answer to a
not contested, he was not required to produce more than one
question of his counsel admitted that the holographic will exhaust all available lines of inquiry, for the state is as much
witness; but even if the genuineness of the holographic will were interested as the proponent that the true intention of the testator be
was handed to him by the testatrix. "apparently it must
contested, we are of the opinion that Article 811 of our present Civil carried into effect.
have been written by her" (t.s.n., p. 11). However, on page
Code can not be interpreted as to require the compulsory
16 on the same transcript of the stenographic notes, when
presentation of three witnesses to identify the handwriting of the
the same witness was asked by counsel if he was familiar
testator, under penalty of having the probate denied. Since no
with the penmanship and handwriting of the deceased
Commenting on analogous provisions of Article 691 of the Spanish EUGENIA RAMONAL CODOY, and MANUEL holographic will was a forgery and that the same is even illegible.
Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. RAMONAL, petitioners, This gives an impression that a "third hand" of an interested party
12, 2nd Ed., p.421), sagely remarks: vs. other than the "true hand" of Matilde Seño Vda. de Ramonal
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and executed the holographic will.
UEFEMIA PATIGAS, respondents.
La manera como esta concebida la redaccion del ultimo
apartado de dicho precepto induce la conclusion de que Petitioners argued that the repeated dates incorporated or appearing
siempre o por lo menos, en la mayor parte de los casos, el PARDO, J.: on will after every disposition is out of the ordinary. If the deceased
Juez debe acudir al criterio pericial para que le ilustre was the one who executed the will, and was not forced, the dates and
acerca de la autenticidad del testamento olografo, aunque the signature should appear at the bottom after the dispositions, as
Before us is a petition for review on certiorari of the decision of the
ya esten insertas en los autos del expediente las regularly done and not after every disposition. And assuming that the
Court of Appeals1 and its resolution denying reconsideration, ruling:
declaraciones testificales. La prudencia con que el Juez holographic will is in the handwriting of the deceased, it was procured
debe de proceder en resoluciones de transcendencia asi by undue and improper pressure and influence on the part of the
lo exige, y la indole delicada y peligrosa del testamento Upon the unrebutted testimony of appellant Evangeline beneficiaries, or through fraud and trickery.1âwphi1.nêt
olografo lo hace necesario para mayor garantia de todos Calugay and witness Matilde Ramonal Binanay, the
los interes comprometidos en aquel. authenticity of testators holographic will has been
Respondents presented six (6) witnesses and various documentary
established and the handwriting and signature therein
evidence. Petitioners instead of presenting their evidence, filed a
(exhibit S) are hers, enough to probate said will. Reversal
En efecto, el cotejo pericial de letras puede ser una demurrer6 to evidence, claiming that respondents failed to establish
of the judgment appealed from and the probate of the
confirmacion facultativa del dicho profano de los testigos y sufficient factual and legal basis for the probate of the holographic
holographic will in question be called for. The rule is that
un modo de desvanecer las ultimas dudas que pudieran will of the deceased Matilde Seño Vda. de Ramonal.
after plaintiff has completed presentation of his evidence
ocurrir al Juez acerca de la autenticidad que trata de
and the defendant files a motion for judgment on demurrer
averigaur y declarar. Para eso se ha escrito la frase del
to evidence on the ground that upon the facts and the law On November 26, 1990, the lower Court issued an order, the
citado ultimo apartado, (siempre que el Juez lo estime
plaintiff has shown no right to relief, if the motion is granted dispositive portion of which reads:
conveniente), haya habido o no testigos y dudaran o no
and the order to dismissal is reversed on appeal, the
estos respecto de los extremos por que son preguntados.
movant loses his right to present evidence in his behalf
WHEREFORE, in view of the foregoing consideration, the
(Sec, 1 Rule 35 Revised Rules of Court). Judgment may,
Demurrer to Evidence having being well taken, same is
El arbitrio judicial en este caso debe formarse con therefore, be rendered for appellant in the instant case.
granted, and the petition for probate of the document
independencia de los sucesos y de su significacion, para
(Exhibit "S") on the purported Holographic Will of the late
responder debidamente de las resoluciones que haya de
Wherefore, the order appealed from is REVERSED and Matilde Seño Vda. de Ramonal, is denied for insufficiency
dictar.
judgment rendered allowing the probate of the holographic of evidence and lack of merits.7
will of the testator Matilde Seño Vda. de Ramonal.2
And because the law leaves it to the trial court if experts are still
On December 12, 1990, respondents filed a notice of appeal,8 and in
needed, no unfavourable inference can be drawn from a party's
The facts are as follows: support of their appeal, the respondents once again reiterated the
failure to offer expert evidence, until and unless the court expresses
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
dissatisfaction with the testimony of the lay witnesses.
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad;
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
Eufemia Patigas, devisees and legatees of the holographic will of the
Our conclusion is that the rule of the first paragraph of Article 811 of
deceased Matilde Seño Vda. de Ramonal, filed with the Regional
the Civil Code is merely directory and is not mandatory.
Trial Court, Misamis Oriental, Branch 18, a petition3 for probate of the To have a clear understanding of the testimonies of the witnesses,
holographic will of the deceased, who died on January 16, 1990. we recite an account of their testimonies.
Considering, however, that this is the first occasion in which this
Court has been called upon to construe the import of said article, the
In the petition, respondents claimed that the deceased Matilde Seño Augusto Neri, Clerk of Court, Court of First Instance of Misamis
interest of justice would be better served, in our opinion, by giving the
Vda. de Ramonal, was of sound and disposing mind when she Oriental, where the special proceedings for the probate of the
parties ample opportunity to adduce additional evidence, including
executed the will on August 30, 1978, that there was no fraud, undue holographic will of the deceased was filed. He produced and
expert witnesses, should the Court deem them necessary.
influence, and duress employed in the person of the testator, and will identified the records of the case. The documents presented bear the
was written voluntarily. signature of the deceased, Matilde Seño Vda. de Ramonal, for the
In view of the foregoing, the decision appealed from is set aside, and purpose of laying the basis for comparison of the handwriting of the
the records ordered remanded to the Court of origin, with instructions testatrix, with the writing treated or admitted as genuine by the party
The assessed value of the decedent's property, including all real and
to hold a new trial in conformity with this opinion. But evidence against whom the evidence is offered.
personal property was about P400,000.00, at the time of her death.4
already on record shall not be retaken. No costs.
Generosa Senon, election registrar of Cagayan de Oro, was
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal
G.R. No. 123486 August 12, 1999 presented to produced and identify the voter's affidavit of the
filed an opposition5 to the petition for probate, alleging that the
decedent. However, the voters' affidavit was not produced for the 1. My share at Cogon, Raminal Street, for Evangeline August 30, 1978
same was already destroyed and no longer available. Calugay.
Gene and Manuel:
Matilde Ramonal Binanay, testified that the deceased Matilde Seño (Sgd) Matilde Vda de Ramonal
Vda. de Ramonal was her aunt, and that after the death of Matilde's
Follow my instruction in order that I will rest peacefully.
husband, the latter lived with her in her parent's house for eleven (11)
August 30, 1978
years from 1958 to 1969. During those eleven (11) years of close
association the deceased, she acquired familiarity with her signature Mama
and handwriting as she used to accompany her (deceased Matilde 2. Josefina Salcedo must be given 1,500 square meters at
Seño Vda. de Ramonal) in collecting rentals from her various tenants Pinikan Street.
of commercial buildings, and deceased always issued receipts. In Matilde Vda de Ramonal
addition to this, she (witness Matilde Binanay) assisted the deceased
(Sgd) Matilde Vda de Ramonal
in posting the records of the accounts, and carried personal letters of On October 9, 1995, the Court of Appeals, rendered decision9 ruling
the deceased to her creditors. that the appeal was meritorious. Citing the decision in the case
August 30, 1978 of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L.
Reyes, a recognized authority in civil law, the Court of Appeals held:
Matilde Ramonal Binanay further testified that at the time of the death
of Matilde Vda. de Ramonal, she left a holographic will dated August 3. My jewelry's shall be divided among:
30, 1978, which was personally and entirely written, dated and . . . even if the genuineness of the holographic will were
signed, by the deceased and that all the dispositions therein, the contested, we are of the opinion that Article 811 of our
dates, and the signatures in said will, were that of the deceased. 1. Eufemia Patigas
present civil code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the
2. Josefina Salcedo handwriting of the testator, under penalty of having the
Fiscal Rodolfo Waga testified that before he was appointed City
Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled probate denied. Since no witness may have been present
all the pleadings and documents signed by the deceased in at the execution of the holographic will, none being
3. Evangeline Calugay required by law (art. 810, new civil code), it becomes
connection with the proceedings of her late husband, as a result of
which he is familiar with the handwriting of the latter. He testified that obvious that the existence of witnesses possessing the
the signature appearing in the holographic will was similar to that of (Sgd) Matilde Vda de Ramonal requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and
the deceased, Matilde Seño Vda. de Ramonal, but he can not be
sure. producing any three witnesses; they must be witnesses
August 30, 1978 "who know the handwriting and signature of the testator"
and who can declare (truthfully, of course, even if the law
The fifth witness presented was Mrs. Teresita Vedad, an employee 4. I bequeath my one (1) hectare land at Mandumol, does not express) "that the will and the signature are in the
of the Department of Environment and Natural Resources, Region Indahag to Evangeline R. Calugay handwriting of the testator." There may be no available
10. She testified that she processed the application of the deceased witness acquainted with the testator's hand; or even if so
for pasture permit and was familiar with the signature of the familiarized, the witness maybe unwilling to give a positive
deceased, since the signed documents in her presence, when the (Sgd) Matilde Vda de Ramonal opinion. Compliance with the rule of paragraph 1 of article
latter was applying for pasture permit. 811 may thus become an impossibility. That is evidently
August 30, 1978 the reason why the second paragraph of article 811
prescribes that —
Finally, Evangeline Calugay, one of the respondents, testified that
she had lived with the deceased since birth, and was in fact adopted 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal
by the latter. That after a long period of time she became familiar with Village in favor of Evangeline R. Calugay, Helen must in the absence of any competent witness referred to in the
the signature of the deceased. She testified that the signature continue with the Sta. Cruz, once I am no longer around. preceding paragraph, and if the court deems it necessary,
appearing in the holographic will is the true and genuine signature of expert testimony may be resorted to.
Matilde Seño Vda. de Ramonal.
(Sgd) Matilde Vda de Ramonal
As can be see, the law foresees, the possibility that no
The holographic will which was written in Visayan, is translated in qualified witness ma be found (or what amounts to the
English as follows: August 30, 1978 same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for resort
6. Bury me where my husband Justo is ever buried. to expert evidence to supply the deficiency.
Instruction

(Sgd) Matilde Vda de Ramonal It may be true that the rule of this article (requiring that
August 30, 1978
three witnesses be presented if the will is contested and
 only one if no contest is had) was derived from the rule sustained the authenticity of the holographic will and the handwriting presented to declare explicitly that the signature appearing in the
established for ordinary testaments (CF Cabang vs. and signature therein, and allowed the will to probate. holographic was that of the deceased.
Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be
Hence, this petition. Generosa E. Senon, the election registrar of Cagayan de Oro City,
considered mandatory only in case of ordinary testaments,
was presented to identify the signature of the deceased in the voter's
precisely because the presence of at least three witnesses
affidavit, which was not even produced as it was no longer available.
at the execution of ordinary wills is made by law essential The petitioners raise the following issues:
to their validity (Art. 805). Where the will is holographic, no
witness need be present (art. 10), and the rule requiring Matilde Ramonal Binanay, on the other hand, testified that:
(1) Whether or not the ruling of the case of Azaola
production of three witnesses must be deemed merely
permissive if absurd results are to be avoided. vs. Singson, 109 Phil. 102, relied upon by the respondent
Court of Appeals, was applicable to the case. Q. And you said for eleven (11) years Matilde Vda de
Ramonal resided with your parents at Pinikitan, Cagayan
Again, under Art. 811, the resort to expert evidence is de Oro City. Would you tell the court what was your
conditioned by the words "if the court deem it necessary", (2) Whether or not the Court of Appeals erred in holding
occupation or how did Matilde Vda de Ramonal keep
which reveal that what the law deems essential is that the that private respondents had been able to present credible
herself busy that time?
evidence to that the date, text, and signature on the
court should be convinced of the will's authenticity. Where
the prescribed number of witnesses is produced and the holographic will written entirely in the hand of the testatrix.
court is convinced by their testimony that the will is A. Collecting rentals.
genuine, it may consider it unnecessary to call for expert (3) Whether or not the Court of Appeals erred in not
evidence. On the other hand, if no competent witness is analyzing the signatures in the holographic will of Matilde Q. From where?
available, or none of those produced is convincing, the Seño Vda. de Ramonal.
court may still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to exhaust all A. From the land rentals and commercial buildings at
available lines of inquiry, for the state is as much interested In this petition, the petitioners ask whether the provisions of Article Pabayo-Gomez streets.12
as the proponent that the true intention of the testator be 811 of the Civil Code are permissive or mandatory. The article
carried into effect. provides, as a requirement for the probate of a contested holographic
xxx xxx xxx
will, that at least three witnesses explicitly declare that the signature
in the will is the genuine signature of the testator.1âwphi1.nêt
Paraphrasing Azaola vs. Singson, even if the genuineness Q. Who sometime accompany her?
of the holographic will were contested, Article 811 of the
civil code cannot be interpreted as to require the We are convinced, based on the language used, that Article 811 of
compulsory presentation of three witnesses to identify the the Civil Code is mandatory. The word "shall" connotes a mandatory A. I sometimes accompany her.
handwriting of the testator, under penalty of the having the order. We have ruled that "shall" in a statute commonly denotes an
probate denied. No witness need be present in the imperative obligation and is inconsistent with the idea of discretion
Q. In collecting rentals does she issue receipts?
execution of the holographic will. And the rule requiring the and that the presumption is that the word "shall," when used in a
production of three witnesses is merely permissive. What statute is mandatory.11
the law deems essential is that the court is convinced of A. Yes, sir.13
the authenticity of the will. Its duty is to exhaust all available Laws are enacted to achieve a goal intended and to guide against an
lines of inquiry, for the state is as much interested in the evil or mischief that aims to prevent. In the case at bar, the goal to xxx xxx xxx
proponent that the true intention of the testator be carried achieve is to give effect to the wishes of the deceased and the evil to
into effect. And because the law leaves it to the trial court be prevented is the possibility that unscrupulous individuals who for
to decide if experts are still needed, no unfavorable their benefit will employ means to defeat the wishes of the testator. Q. Showing to you the receipt dated 23 October 1979, is
inference can be drawn from a party's failure to offer expert this the one you are referring to as one of the receipts
evidence, until and unless the court expresses which she issued to them?
dissatisfaction with the testimony of the lay witnesses. 10 So, we believe that the paramount consideration in the present
petition is to determine the true intent of the deceased. An exhaustive
and objective consideration of the evidence is imperative to establish A. Yes, sir.
According to the Court of Appeals, Evangeline Calugay, Matilde the true intent of the testator.
Ramonal Binanay and other witnesses definitely and in no uncertain Q. Now there is that signature of Matilde vda. De
terms testified that the handwriting and signature in the holographic Ramonal, whose signature is that Mrs. Binanay?
will were those of the testator herself. It will be noted that not all the witnesses presented by the
respondents testified explicitly that they were familiar with the
handwriting of testator. In the case of Augusto Neri, clerk of court, A. Matilde vda. De Ramonal.
Thus, upon the unrebutted testimony of appellant Evangeline Court of First Instance, Misamis Oriental, he merely identified the
Calugay and witness Matilde Ramonal Binanay, the Court of Appeals record of Special Proceedings No. 427 before said court. He was not
Q. Why do you say that is the signature of Matilde Vda. Q. You testified that at time of her death she left a will. I A. 1985.17
De Ramonal? am showing to you a document with its title "tugon" is this
the document you are referring to?
xxx xxx xxx
A. I am familiar with her signature.
A. Yes, sir.
Q. Now, Mrs. Binanay was there any particular reason
Q. Now, you tell the court Mrs. Binanay, whether you why your mother left that will to you and therefore you have
know Matilde vda de Ramonal kept records of the accounts Q. Showing to you this exhibit "S", there is that that in your possession?
of her tenants? handwritten "tugon", whose handwriting is this?
A. It was not given to me by my mother, I took that in the
A. Yes, sir. A. My Aunt. aparador when she died.

Q. Why do you say so? Q. Why do you say this is the handwriting of your aunt? Q. After taking that document you kept it with you?

A. Because we sometimes post a record of accounts in A. Because I am familiar with her signature.16 A. I presented it to the fiscal.
behalf of Matilde Vda. De Ramonal.
What Ms. Binanay saw were pre-prepared receipts and letters of the Q. For what purpose?
Q. How is this record of accounts made? How is this deceased, which she either mailed or gave to her tenants. She did
reflected? not declare that she saw the deceased sign a document or write a
A. Just to seek advice.
note.
A. In handwritten.14
Q. Advice of what?
Further, during the cross-examination, the counsel for petitioners
elicited the fact that the will was not found in the personal belongings
xxx xxx xxx
of the deceased but was in the possession of Ms. Binanay. She A. About the will.18
testified that:
Q. In addition to collection of rentals, posting records of
In her testimony it was also evident that Ms. Binanay kept the fact
accounts of tenants and deed of sale which you said what
Q. Mrs. Binanay, when you were asked by counsel for the about the will from petitioners, the legally adopted children of the
else did you do to acquire familiarity of the signature of
petitioners if the late Matilde Seno vda de Ramonal left a deceased. Such actions put in issue her motive of keeping the will a
Matilde Vda De Ramonal?
will you said, yes? secret to petitioners and revealing it only after the death of Matilde
Seño Vda. de Ramonal.
A. Posting records.
A. Yes, sir.
In the testimony of Ms. Binanay, the following were established:
Q. Aside from that?
Q. Who was in possession of that will?
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not
A. Carrying letters. yet a sickly person is that correct?
A. I.

Q. Letters of whom? A. Yes, sir.

Q. Since when did you have the possession of the will?

A. Matilde. Q. She was up and about and was still uprightly and she
A. It was in my mother's possession.
could walk agilely and she could go to her building to
collect rentals, is that correct?
Q. To whom?
Q. So, it was not in your possession?
A. Yes, sir.19
A. To her creditors.15
A. Sorry, yes.
xxx xxx xxx
xxx xxx xxx
Q. And when did you come into possession since as you
said this was originally in the possession of your mother?
Q. Now, let us go to the third signature of Matilde movement. . . . And in fact, the name Eufemia R. Patigas below item No. 1, will you tell this court whose signature is
Ramonal. Do you know that there are retracings in the here refers to one of the petitioners? this?
word Vda.?
A. Yes, sir. A. Yes, sir, that is her signature.
A. Yes, a little. The letter L is continuous.
Q. You will also notice Mrs. Binanay that it is not only with Q. Why do you say that is her signature?
Q. And also in Matilde the letter L is continued to letter D? the questioned signature appearing in the alleged
holographic will marked as Exhibit X but in the handwriting
A. I am familiar with her signature.23
themselves, here you will notice the hesitancy and tremors,
A. Yes, sir.
do you notice that?
So, the only reason that Evangeline can give as to why she was
Q. Again the third signature of Matilde Vda de Ramonal familiar with the handwriting of the deceased was because she lived
A. Yes, sir.21
the letter L in Matilde is continued towards letter D. with her since birth. She never declared that she saw the deceased
write a note or sign a document.
Evangeline Calugay declared that the holographic will was written,
A. Yes, sir.
dated and signed in the handwriting of the testator. She testified that:
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. And there is a retracing in the word Vda.?
Q. You testified that you stayed with the house of the
Q. Do you know Matilde Vda de Ramonal?
spouses Matilde and Justo Ramonal for the period of 22
20
A. Yes, sir. years. Could you tell the court the services if any which you
rendered to Matilde Ramonal? A. Yes, sir I know her because she is my godmother the
husband is my godfather. Actually I am related to the
xxx xxx xxx
husband by consanguinity.
A. During my stay I used to go with her to the church, to
market and then to her transactions.
Q. Now, that was 1979, remember one year after the
Q. Can you tell the name of the husband?
alleged holographic will. Now, you identified a document
marked as Exhibit R. This is dated January 8, 1978 which Q. What else? What services that you rendered?
is only about eight months from August 30, 1978. Do you A. The late husband is Justo Ramonal.24
notice that the signature Matilde Vda de Ramonal is
A. After my college days I assisted her in going to the
beautifully written and legible?
bank, paying taxes and to her lawyer. xxx xxx xxx

A. Yes, sir the handwriting shows that she was very

Q. What was your purpose of going to her lawyer? Q. Can you tell this court whether the spouses Justo
exhausted.
Ramonal and Matilde Ramonal have legitimate children?
A. I used to be her personal driver.
Q. You just say that she was very exhausted while that in
A. As far as I know they have no legitimate children.25
1978 she was healthy was not sickly and she was agile.
Now, you said she was exhausted? Q. In the course of your stay for 22 years did you acquire
familiarity of the handwriting of Matilde Vda de Ramonal? xxx xxx xxx
A. In writing.
A. Yes, sir. Q. You said after becoming a lawyer you practice your
profession? Where?
Q. How did you know that she was exhausted when you
were not present and you just tried to explain yourself out Q. How come that you acquired familiarity?
because of the apparent inconsistencies? A. Here in Cagayan de Oro City.
A. Because I lived with her since birth.22
A. That was I think. (sic). Q. Do you have services rendered with the deceased
Matilde vda de Ramonal?
xxx xxx xxx
Q. Now, you already observed this signature dated 1978,
the same year as the alleged holographic will. In exhibit I, A. I assisted her in terminating the partition, of properties.
Q. Now, I am showing to you Exhibit S which is captioned
you will notice that there is no retracing; there is no
"tugon" dated Agosto 30, 1978 there is a signature here
hesitancy and the signature was written on a fluid
Q. When you said assisted, you acted as her counsel? Q. Now, in item No. 2 there is that signature here of testaments and to guaranty their truth and authenticity. Therefore,
Any sort of counsel as in what case is that, Fiscal? Matilde Vda de Ramonal, can you tell the court whose the laws on this subject should be interpreted in such a way as to
signature is this? attain these primordial ends. But on the other hand, also one must
not lose sight of the fact that it is not the object of the law to restrain
A. It is about the project partition to terminate the property,
and curtail the exercise of the right to make a will.
which was under the court before.26 A. Well, that is similar to that signature appearing in the
project of partition.
However, we cannot eliminate the possibility of a false document
xxx xxx xxx
being adjudged as the will of the testator, which is why if the
Q. Also in item no. 3 there is that signature Matilde Vda
holographic will is contested, that law requires three witnesses to
de Ramonal, can you tell the court whose signature is that?
Q. Appearing in special proceeding no. 427 is the declare that the will was in the handwriting of the deceased.
amended inventory which is marked as exhibit N of the
estate of Justo Ramonal and there appears a signature A. As I said, this signature also seems to be the signature
The will was found not in the personal belongings of the deceased
over the type written word Matilde vda de Ramonal, whose of Matilde vda de Ramonal.
but with one of the respondents, who kept it even before the death of
signature is this?
the deceased. In the testimony of Ms. Binanay, she revealed that the
Q. Why do you say that? will was in her possession as early as 1985, or five years before the
A. That is the signature of Matilde Vda de Ramonal. death of the deceased.
A. Because there is a similarity in the way it is being
Q. Also in exhibit n-3, whose signature is this? written. There was no opportunity for an expert to compare the signature and
the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison
A. This one here that is the signature of Mrs. Matilde vda Q. How about this signature in item no. 4, can you tell the was during the cross-examination of Ms. Binanay when the lawyer of
de Ramonal.27 court whose signature is this?
petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic
xxx xxx xxx A. The same is true with the signature in item no. 4. It will and she is not a handwriting expert. Even the former lawyer of
seems that they are similar.29 the deceased expressed doubts as to the authenticity of the signature
in the holographic will.
Q. Aside from attending as counsel in that Special
Proceeding Case No. 427 what were the other assistance xxx xxx xxx
wherein you were rendering professional service to the A visual examination of the holographic will convince us that the
deceased Matilde Vda de Ramonal? strokes are different when compared with other documents written by
Q. Mr. Prosecutor, I heard you when you said that the the testator. The signature of the testator in some of the disposition
signature of Matilde Vda de Ramonal Appearing in exhibit is not readable. There were uneven strokes, retracing and erasures
A. I can not remember if I have assisted her in other S seems to be the signature of Matilde vda de Ramonal? on the will.
matters but if there are documents to show that I have
assisted then I can recall.28
A. Yes, it is similar to the project of partition. Comparing the signature in the holographic will dated August 30,
1978,33 and the signatures in several documents such as the
xxx xxx xxx application letter for pasture permit dated December 30, 1980,34 and
Q. So you are not definite that this is the signature of
Matilde vda de Ramonal. You are merely supposing that it a letter dated June 16, 1978,35the strokes are different. In the letters,
Q. Now, I am showing to you exhibit S which is titled seems to be her signature because it is similar to the there are continuous flows of the strokes, evidencing that there is no
"tugon", kindly go over this document, Fiscal Waga and tell signature of the project of partition which you have made? hesitation in writing unlike that of the holographic will. We, therefore,
the court whether you are familiar with the handwriting cannot be certain that ruling holographic will was in the handwriting
contained in that document marked as exhibit "S"? by the deceased.
A. That is true.30

A. I am not familiar with the handwriting. IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
From the testimonies of these witnesses, the Court of Appeals records are ordered remanded to the court of origin with instructions
allowed the will to probate and disregard the requirement of three to allow petitioners to adduce evidence in support of their opposition
Q. This one, Matilde Vda de Ramonal, whose signature witnesses in case of contested holographic will, citing the decision to the probate of the holographic will of the deceased Matilde Seño
is this? in Azaola vs. Singson,31ruling that the requirement is merely directory vda. de Ramonal.1âwphi1.nêt
and not mandatory.
A. I think this signature here it seems to be the signature No costs.
of Mrs. Matilde vda de Ramonal. In the case of Ajero vs. Court of Appeals,32 we said that "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 G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP Opposing the petition, her surviving husband Ildefonso Yap asserted August 1950. However, her ailment recurred, she suffered several
deceased. FAUSTO E. GAN, petitioner-appellant, that the deceased had not left any will, nor executed any testament attacks, the most serious of which happened in the early morning of
vs. during her lifetime. the first Monday of November 1951 (Nov. 5). The whole household
ILDEFONSO YAP, oppositor-appellee. was surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower floors and of by the Yap spouses.
After hearing the parties and considering their evidence, the Hon.
Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for Ramon R. San Jose, Judge,1 refused to probate the alleged will. A
about 8:00 a.m., found the patient hardly breathing, lying in bed, her
appellant. seventy-page motion for reconsideration failed. Hence this appeal.
head held high by her husband. Injections and oxygen were
Arturo M. Tolentino for appellee.
administered. Following the doctor's advice the patient stayed in bed,
The will itself was not presented. Petitioner tried to establish its and did nothing the whole day, her husband and her personal
BENGZON, J.: contents and due execution by the statements in open court of Felina attendant, Mrs. Bantique, constantly at her side. These two persons
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan swore that Mrs. Felicidad Esguerra Yap made no will, and could have
Jimenez, whose testimonies may be summarized as follows: made no will on that day.
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. Sometime in 1950 after her last trip abroad, Felicidad Esguerra The trial judge refused to credit the petitioner's evidence for several
mentioned to her first cousin, Vicente Esguerra, her desire to make reasons, the most important of which were these: (a) if according to
a will. She confided however that it would be useless if her husband his evidence, the decedent wanted to keep her will a secret, so that
On March 17, 1952, Fausto E. Gan initiated them proceedings in the her husband would not know it, it is strange she executed it in the
discovered or knew about it. Vicente consulted with Fausto E. Gan,
Manila court of first instance with a petition for the probate of a
nephew of Felicidad, who was then preparing for the bar presence of Felina Esguerra, knowing as she did that witnesses were
holographic will allegedly executed by the deceased, substantially in unnecessary; (b) in the absence of a showing that Felina was a
examinations. The latter replied it could be done without any witness,
these words: confidant of the decedent it is hard to believe that the latter would
provided the document was entirely in her handwriting, signed and
dated by her. Vicente Esguerra lost no time in transmitting the have allowed the former to see and read the will several times; (c) it
information, and on the strength of it, in the morning of November 5, is improbable that the decedent would have permitted Primitivo
Nobyembre 5, 1951. 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will,
signed and dated a holographic will substantially of the tenor above when she precisely wanted its contents to remain a secret during her
transcribed, in the presence of her niece, Felina Esguerra (daughter lifetime; (d) it is also improbable that her purpose being to conceal
of Vicente), who was invited to read it. In the afternoon of that day, the will from her husband she would carry it around, even to the
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na
Felicidad was visited by a distant relative, Primitivo Reyes, and she hospital, in her purse which could for one reason or another be
pag-iisip, ay nagsasalaysay na ang aking kayamanan sa
allowed him to read the will in the presence of Felina Esguerra, who opened by her husband; (e) if it is true that the husband demanded
bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking
again read it. the purse from Felina in the U.S.T. Hospital and that the will was
mga kamag-anakang sumusunod:
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
Nine days later, he had other visitors: Socorro Olarte a cousin, and
Vicente Esguerra, Sr. ............................................. Rosario Gan 5 Bahagi executed behind his back for fear he will destroy it.
Jimenez, a niece. To these she showed the will, again
Fausto E. Gan .........................................................in the presence of Felina Esguerra, who read it for the third time.
2 Bahagi
In the face of these improbabilities, the trial judge had to accept the
Rosario E. Gan ......................................................... 2 Bahagi oppositor's evidence that Felicidad did not and could not have
When on November 19, 1951, Felicidad was confined at the U.S.T. executed such holographic will.
Filomena Alto .......................................................... Hospital 1for Bahagi
her last illness, she entrusted the said will, which was
Beatriz Alto ..............................................................contained in a purse, to Felina Esguerra. But a few hours later,
1 Bahagi
Ildefonso Yap, her husband, asked Felina for the purse: and being In this appeal, the major portion of appellant's brief discussed the
afraid of him by reason of his well-known violent temper, she testimony of the oppositor and of his witnesses in a vigorous effort to
At ang aking lahat ng ibang kayamanan sa Maynila at iba delivered it to him. Thereafter, in the same day, Ildefonso Yap discredit them. It appears that the same arguments, or most of them,
panglugar ay aking ipinamamana sa aking asawang si returned the purse to Felina, only to demand it the next day shortly were presented in the motion to reconsider; but they failed to induce
Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng before the death of Felicidad. Again, Felina handed it to him but not the court a quo to change its mind. The oppositor's brief, on the other
isang Health Center na nagkakahalaga ng di kukulangin before she had taken the purse to the toilet, opened it and read the hand, aptly answers the criticisms. We deem it unnecessary to go
sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na will for the last time.2 over the same matters, because in our opinion the case should be
nakaukit ang aking pangalang Felicidad Esguerra-Alto. At decided not on the weakness of the opposition but on the strength of
kung ito ay may kakulangan man ay bahala na ang aking the evidence of the petitioner, who has the burden of proof.
asawa ang magpuno upang matupad ang aking From the oppositor's proof it appears that Felicidad Esguerra had
kagustuhan. been suffering from heart disease for several years before her death;
that she had been treated by prominent physicians, Dr. Agerico The Spanish Civil Code permitted the execution of holographic wills
Sison, Dr. Agustin Liboro and others; that in May 1950 husband and along with other forms. The Code of Civil Procedure (Act 190)
wife journeyed to the United States wherein for several weeks she approved August 7, 1901, adopted only one form, thereby repealing
(Lagda) Felicidad E. Alto-Yap.
was treated for the disease; that thereafter she felt well and after the other forms, including holographic wills.
visiting interesting places, the couple returned to this country in
The New Civil Code effective in 1950 revived holographic wills in its handwriting, or they may deliberately lie in affirming it is in the Spanish commentators agree that one of the greatest objections to
arts. 810-814. "A person may execute a holographic will which must testator's hand. However, the oppositor may present other witnesses the holographic will is that it may be lost or stolen4 — an implied
be entirely written, dated, and signed by the hand of the testator who also know the testator's handwriting, or some expert witnesses, admission that such loss or theft renders it useless..
himself. It is subject to no other form and may be made in or out of who after comparing the will with other writings or letters of the
the Philippines, and need not be witnessed." deceased, have come to the conclusion that such will has not been
This must be so, because the Civil Code requires it to be protocoled
written by the hand of the deceased. (Sec. 50, Rule 123). And the
and presented to the judge, (Art. 689) who shall subscribe it and
court, in view of such contradictory testimony may use its own visual
This is indeed a radical departure from the form and solemnities require its identity to be established by the three witnesses who
sense, and decide in the face of the document, whether the will
provided for wills under Act 190, which for fifty years (from 1901 to depose that they have no reasonable doubt that the will was written
submitted to it has indeed been written by the testator.
1950) required wills to be subscribed by the testator and three by the testator (Art. 691). And if the judge considers that the identity
credible witnesses in each and every page; such witnesses to attest of the will has been proven he shall order that it be filed (Art. 693). All
to the number of sheets used and to the fact that the testator signed Obviously, when the will itself is not submitted, these means of these, imply presentation of the will itself. Art. 692 bears the same
in their presence and that they signed in the presence of the testator opposition, and of assessing the evidence are not available. And implication, to a greater degree. It requires that the surviving spouse
and of each other. then the only guaranty of authenticity3 — the testator's handwriting and the legitimate ascendants and descendants be summoned so
— has disappeared. 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 object of such requirements it has been said, is to close the door
the holographic will is usually done by the testator and by himself
against bad faith and fraud, to prevent substitution of wills, to Therefore, the question presents itself, may a holographic will be
alone, to prevent others from knowing either its execution or its
guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., probated upon the testimony of witnesses who have allegedly seen
contents, the above article 692 could not have the idea of simply
476) and to avoid those who have no right to succeed the testator it and who declare that it was in the handwriting of the testator? How
permitting such relatives to state whether they know of the will, but
would succeed him and be benefited with the probate of same. can the oppositor prove that such document was not in the testator's
whether in the face of the document itself they think the testator wrote
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal handwriting? His witnesses who know testator's handwriting have not
it. Obviously, this they can't do unless the will itself is presented to
imperfections may be brushed aside when authenticity of the examined it. His experts can not testify, because there is no way to
the Court and to them.
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. compare the alleged testament with other documents admittedly, or
No. 3 p. 194.) 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 Undoubtedly, the intention of the law is to give the near relatives the
will or the form thereof, and the nether millstone of his inability to choice of either complying with the will if they think it authentic, or to
Authenticity and due execution is the dominant requirements to be
prove its falsity. Again the proponent's witnesses may be honest and oppose it, if they think it spurious.5 Such purpose is frustrated when
fulfilled when such will is submitted to the courts for allowance. For
truthful; but they may have been shown a faked document, and the document is not presented for their examination. If it be argued
that purpose the testimony of one of the subscribing witnesses would
having no interest to check the authenticity thereof have taken no that such choice is not essential, because anyway the relatives may
be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the
pains to examine and compare. Or they may be perjurers boldly oppose, the answer is that their opposition will be at a distinct
three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
testifying, in the knowledge that none could convict them of perjury, disadvantage, and they have the right and privilege to comply with
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
because no one could prove that they have not "been shown" a the will, if genuine, a right which they should not be denied by
witnesses (and of other additional witnesses) the court may form its
document which they believed was in the handwriting of the withholding inspection thereof from them.
opinion as to the genuineness and authenticity of the testament, and
deceased. Of course, the competency of such perjured witnesses to
the circumstances its due execution.
testify as to the handwriting could be tested by exhibiting to them
We find confirmation of these ideas--about exhibition of the document
other writings sufficiently similar to those written by the deceased; but
itself--in the decision of the Supreme Court of Spain of June 5, 1925,
Now, in the matter of holographic wills, no such guaranties of truth what witness or lawyer would not foresee such a move and prepare
which denied protocolization or probate to a document containing
and veracity are demanded, since as stated, they need no witnesses; for it? His knowledge of the handwriting established, the witness (or
testamentary dispositions in the handwriting of the deceased, but
provided however, that they are "entirely written, dated, and signed witnesses) could simply stick to his statement: he has seen and read
apparently mutilated, the signature and some words having been torn
by the hand of the testator himself." The law, it is reasonable to a document which he believed was in the deceased's handwriting.
from it. Even in the face of allegations and testimonial evidence
suppose, regards the document itself as material proof of And the court and the oppositor would practically be at the mercy of
(which was controverted), ascribing the mutilation to the opponents
authenticity, and as its own safeguard, since it could at any time, be such witness (or witnesses) not only as to the execution, but also as
of the will. The aforesaid tribunal declared that, in accordance with
demonstrated to be — or not to be — in the hands of the testator to the contents of the will. Does the law permit such a situation?
the provision of the Civil Code (Spanish) the will itself, whole and
himself. "In the probate of a holographic will" says the New Civil
unmutilated, must be presented; otherwise, it shall produce no effect.
Code, "it shall be necessary that at least one witness who knows the
The Rules of Court, (Rule 77) approved in 1940 allow proof (and
handwriting and signature of the testator explicitly declare that the
probate) of a lost or destroyed will by secondary — evidence the
will and the signature are in the handwriting of the testator. If the will Considerando que sentado lo anterior, y estableciendose
testimony of witnesses, in lieu of the original document. Yet such
is contested, at least three such witnesses shall be required. In the en el parrafo segundo del articulo 688 del Codigo civil, que
Rules could not have contemplated holographic wills which could not
absence of any such witnesses, (familiar with decedent's para que sea valido el testamento olografo debera estar
then be validly made here. (See also Sec. 46, Rule 123; Art. 830-
handwriting) and if the court deem it necessary, expert testimony may escrito todo el y firmado por testador, con expression del
New Civil Code.)
be resorted to." año, mes y dia en que se otorque, resulta evidente que
para la validez y eficacia de esos testamentos, no basta la
Could Rule 77 be extended, by analogy, to holographic wills? demostracion mas o menos cumplida de que cuando
The witnesses so presented do not need to have seen the execution
se otorgaron se Ilenaron todos esos requisitos, sino que
of the holographic will. They may be mistaken in their opinion of the
de la expresada redaccion el precepto legal, y por el
 tiempo en que el verbo se emplea, se desprende la the insufficiency, of the evidence presented by petitioner Fausto E. circumstances described in the appealed decision, we find it hard to
necesidad de que el documento se encuentre en dichas Gan. believe that the deceased should show her will precisely to relatives
condiciones en el momento de ser presentado a la who had received nothing from it: Socorro Olarte and Primitivo
Autoridad competente, para au adveracion y Reyes. These could pester her into amending her will to give them a
At this point, before proceeding further, it might be convenient to
protocolizacion; y como consecuencia ineludible de ello, share, or threaten to reveal its execution to her husband Ildefonso
explain why, unlike holographic wills, ordinary wills may be proved by
forzoso es affirmar que el de autos carece de validez y Yap. And this leads to another point: if she wanted so much to
testimonial evidence when lost or destroyed. The difference lies in
aficacia, por no estarfirmado por el testador, cualquiera conceal the will from her husband, why did she not entrust it to her
the nature of the wills. In the first, the only guarantee of authenticity
que sea la causa de la falta de firma, y sin perjuicio de las beneficiaries? Opportunity to do so was not lacking: for instance, her
is the handwriting itself; in the second, the testimony of the
acciones que puedan ejercitar los perjudicados, bien para husband's trip to Davao, a few days after the alleged execution of the
subscribing or instrumental witnesses (and of the notary, now). The
pedir indemnizacion por el perjuicio a la persona culpable, will.
loss of the holographic will entails the loss of the only medium of
si la hubiere, o su castigo en via criminal si procediere,
proof; if the ordinary will is lost, the subscribing witnesses are
por constituir dicha omision un defecto insubsanable . . . .
available to authenticate. In fine, even if oral testimony were admissible to establish and
probate a lost holographic will, we think the evidence submitted by
This holding aligns with the ideas on holographic wills in the Fuero herein petitioner is so tainted with improbabilities and inconsistencies
In the case of ordinary wills, it is quite hard to convince three
Juzgo, admittedly the basis of the Spanish Civil Code provisions on that it fails to measure up to that "clear and distinct" proof required by
witnesses (four with the notary) deliberately to lie. And then their lies
the matter.6 Rule 77, sec. 6.11
could be checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the testator,
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, their intimacy with the testator, etc. And if they were intimates or Wherefore, the rejection of the alleged will must be sustained.
titulo V, ley 15--E depues que los herederos e sus fijos trusted friends of the testator they are not likely to end themselves to
ovieren esta manda, fasta ... annos muestrenla al obispo any fraudulent scheme to distort his wishes. Last but not least, they
Judgment affirmed, with costs against petitioner.
de la tierra, o al juez fasta VI meses y el obispo o el juez can not receive anything on account of the will.
tomen otros tales tres escritos, que fuesen fechos por su
mano daquel que fizo la manda; e por aquellos escriptos, G.R. No. L-58509 December 7, 1982
Whereas in the case of holographic wills, if oral testimony were
si semjara la letra de la manda, sea confirmada la manda.
admissible9 only one man could engineer the fraud this way: after
E depues que todo esto fuere connoscido, el obispo o el
making a clever or passable imitation of the handwriting and IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
juez, o otras testimonios confirmen el escripto de la manda
signature of the deceased, he may contrive to let three honest and RICARDO B. BONILLA deceased, MARCELA
otra vez, y en esta manera vala la manda. (Art. 689,
credible witnesses see and read the forgery; and the latter, having no RODELAS, petitioner-appellant,
Scaevola--Codigo Civil.)
interest, could easily fall for it, and in court they would in all good faith vs.
affirm its genuineness and authenticity. The will having been lost — AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
(According to the Fuero above, the will itself must be compared with the forger may have purposely destroyed it in an "accident" — the LORENZO SUMULONG, intervenor.
specimens of the testators handwriting.) 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 Luciano A. Joson for petitioner-appellant.
All of which can only mean: the courts will not distribute the property
them need be signed, the substitution of the unsigned pages, which
of the deceased in accordance with his holographic will, unless they
may be the most important ones, may go undetected. Cesar Paralejo for oppositor-appellee.
are shown his handwriting and signature.7

If testimonial evidence of holographic wills be permitted, one more

Parenthetically, it may be added that even the French Civil Law
objectionable feature — feasibility of forgery — would be added to
considers the loss of the holographic will to be fatal. (Planiol y Ripert,
the several objections to this kind of wills listed by Castan, Sanchez
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, RELOVA, J.:
Roman and Valverde and other well-known Spanish Commentators
page 555).
and teachers of Civil Law.10
This case was certified to this Tribunal by the Court of Appeals for
Taking all the above circumstances together, we reach the final determination pursuant to Section 3, Rule 50 of the Rules of
One more fundamental difference: in the case of a lost will, the three
conclusion that the execution and the contents of a lost or destroyed Court.
subscribing witnesses would be testifying to a fact which they saw,
holographic will may not be proved by the bare testimony of
namely the act of the testator of subscribing the will; whereas in the
witnesses who have seen and/or read such will. 8
case of a lost holographic will, the witnesses would testify as to their As found by the Court of Appeals:
opinion of the handwriting which they allegedly saw, an opinion which
Under the provisions of Art. 838 of the New Civil Code, we are can not be tested in court, nor directly contradicted by the oppositors,
empowered to adopt this opinion as a Rule of Court for the allowance because the handwriting itself is not at hand. ... On January 11, 1977, appellant filed a petition
of such holographic wills. We hesitate, however, to make this Rule with the Court of First Instance of Rizal for the
decisive of this controversy, simultaneously with its promulgation. probate of the holographic will of Ricardo B.
Turning now to the evidence presented by the petitioner, we find Bonilla and the issuance of letters testamentary
Anyway, decision of the appeal may rest on the sufficiency, rather
ourselves sharing the trial judge's disbelief. In addition to the dubious in her favor. The petition, docketed as Sp. Proc.
No. 8432, was opposed by the appellees contrary to law and settled pronouncements and Pursuant to Article 811 of the Civil Code, probate of holographic wills
Amparo Aranza Bonilla, Wilferine Bonilla Treyes rulings of the Supreme Court, to which the is the allowance of the will by the court after its due execution has
Expedita Bonilla Frias and Ephraim Bonilla on appellant in turn filed an opposition. On July 23, been proved. The probate may be uncontested or not. If uncontested,
the following grounds: 1979, the court set aside its order of February at least one Identifying witness is required and, if no witness is
23, 1979 and dismissed the petition for the available, experts may be resorted to. If contested, at least three
probate of the will of Ricardo B. Bonilla. The Identifying witnesses are required. However, if the holographic will
(1) Appellant was estopped from claiming that
court said: has been lost or destroyed and no other copy is available, the will can
the deceased left a will by failing to produce the
not be probated because the best and only evidence is the
will within twenty days of the death of the testator
handwriting of the testator in said will. It is necessary that there be a
as required by Rule 75, section 2 of the Rules of ... It is our considered opinion that once the
comparison between sample handwritten statements of the testator
Court; original copy of the holographic will is lost, a
and the handwritten will. But, a photostatic copy or xerox copy of the
copy thereof cannot stand in lieu of the original.
holographic will may be allowed because comparison can be made
(2) The alleged copy of the alleged holographic with the standard writings of the testator. In the case of Gam vs. Yap,
will did not contain a disposition of property after In the case of Gam vs. Yap, 104 Phil. 509, 522, 104 PHIL. 509, the Court ruled that "the execution and the contents
death and was not intended to take effect after the Supreme Court held that 'in the matter of of a lost or destroyed holographic will may not be proved by the bare
death, and therefore it was not a will holographic wills the law, it is reasonable to testimony of witnesses who have seen and/or read such will. The will
suppose, regards the document itself as the itself must be presented; otherwise, it shall produce no effect. The
material proof of authenticity of said wills. law regards the document itself as material proof of authenticity." But,
(3) The alleged hollographic will itself,and not an
in Footnote 8 of said decision, it says that "Perhaps it may be proved
alleged copy thereof, must be produced, by a photographic or photostatic copy. Even a mimeographed or
otherwise it would produce no effect, as held in MOREOVER, this Court notes that the alleged carbon copy; or by other similar means, if any, whereby the
Gam v. Yap, 104 Phil. 509; and holographic will was executed on January 25,
authenticity of the handwriting of the deceased may be exhibited and
1962 while Ricardo B. Bonilla died on May 13, tested before the probate court," Evidently, the photostatic or xerox
1976. In view of the lapse of more than 14 years copy of the lost or destroyed holographic will may be admitted
(4 ) The deceased did not leave any will,
from the time of the execution of the will to the
holographic or otherwise, executed and attested because then the authenticity of the handwriting of the deceased can
death of the decedent, the fact that the original be determined by the probate court.
as required by law.
of the will could not be located shows to our mind
that the decedent had discarded before his
The appellees likewise moved for the death his allegedly missing Holographic Will. WHEREFORE, the order of the lower court dated October 3, 1979,
consolidation of the case with another case Sp. denying appellant's motion for reconsideration dated August 9, 1979,
Proc. No, 8275). Their motion was granted by of the Order dated July 23, 1979, dismissing her petition to approve
Appellant's motion for reconsideration was denied. Hence, an appeal the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
the court in an order dated April 4, 1977.
to the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.
On November 13, 1978, following the SO ORDERED.
consolidation of the cases, the appellees moved
On July 7, 1980, appellees moved to forward the case to this Court
again to dismiss the petition for the probate of G.R. No. L-40207 September 28, 1984
on the ground that the appeal does not involve question of fact and
the will. They argued that:
alleged that the trial court committed the following assigned errors:
ROSA K. KALAW, petitioner,
(1) The alleged holographic was not a last will vs.
I. THE LOWER COURT ERRED IN HOLDING
but merely an instruction as to the management HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI
THAT A LOST HOLOGRAPHIC WILL MAY
and improvement of the schools and colleges of Batangas, Branch VI, Lipa City, and GREGORIO K.
NOT BE PROVED BY A COPY THEREOF;
founded by decedent Ricardo B. Bonilla; and KALAW, respondents.
II. THE LOWER COURT ERRED IN HOLDING
(2) Lost or destroyed holographic wills cannot be Leandro H. Fernandez for petitioner.
THAT THE DECEDENT HAS DISCARDED
proved by secondary evidence unlike ordinary
BEFORE HIS DEATH THE MISSING
wills.
HOLOGRAPHIC WILL;
Antonio Quintos and Jose M. Yacat for respondents.
Upon opposition of the appellant, the motion to
III. THE LOWER COURT ERRED IN
dismiss was denied by the court in its order of
DISMISSING APPELLANT'S WILL.
February 23, 1979.
MELENCIO-HERRERA, J.:
The only question here is whether a holographic will which was lost
The appellees then filed a motion for
or cannot be found can be proved by means of a photostatic copy.
reconsideration on the ground that the order was
On September 1, 1971, private respondent GREGORIO K. KALAW, Kalaw. The only question is whether the win, segun la regla de jurisprudencia establecida en la sentencia de 4 de
claiming to be the sole heir of his deceased sister, Natividad K. Exhibit 'C', should be admitted to probate Abril de 1895." 2
Kalaw, filed a petition before the Court of First Instance of Batangas, although the alterations and/or insertions or
Branch VI, Lipa City, for the probate of her holographic Will executed additions above-mentioned were not
However, when as in this case, the holographic Will in dispute had
on December 24, 1968. authenticated by the full signature of the testatrix
only one substantial provision, which was altered by substituting the
pursuant to Art. 814 of the Civil Code. The
original heir with another, but which alteration did not carry the
petitioner contends that the oppositors are
The holographic Will reads in full as follows: requisite of full authentication by the full signature of the testator, the
estopped to assert the provision of Art. 814 on
effect must be that the entire Will is voided or revoked for the simple
the ground that they themselves agreed thru
reason that nothing remains in the Will after that which could remain
My Last will and Testament their counsel to submit the Document to the NBI
valid. To state that the Will as first written should be given efficacy is
FOR EXAMINATIONS. This is untenable. The
to disregard the seeming change of mind of the testatrix. But that
parties did not agree, nor was it impliedly
In the name of God, Amen. change of mind can neither be given effect because she failed to
understood, that the oppositors would be in
authenticate it in the manner required by law by affixing her full
estoppel.
signature,
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of
Lipa City, being of sound and disposing mind and memory, do hereby
The Court finds, therefore, that the provision of
declare thus to be my last will and testament. The ruling in Velasco, supra, must be held confined to such
Article 814 of the Civil Code is applicable to
insertions, cancellations, erasures or alterations in a holographic Will,
Exhibit "C". Finding the insertions, alterations
which affect only the efficacy of the altered words themselves but not
1. It is my will that I'll be burried in the cemetery of the catholic church and/or additions in Exhibit "C" not to be
the essence and validity of the Will itself. As it is, with the erasures,
of Lipa City. In accordance with the rights of said Church, and that authenticated by the full signature of the testatrix
cancellations and alterations made by the testatrix herein, her real
my executrix hereinafter named provide and erect at the expose of Natividad K. Kalaw, the Court will deny the
intention cannot be determined with certitude. As Manresa had stated
my state a suitable monument to perpetuate my memory. admission to probate of Exhibit "C".
in his commentary on Article 688 of the Spanish Civil Code, whence
Article 814 of the new Civil Code was derived:
xxx xxx xxx WHEREFORE, the petition to probate Exhibit
"C" as the holographic will of Natividad K. Kalaw
... No infringe lo dispuesto en este articulo del
is hereby denied.
The holographic Will, as first written, named ROSA K. Kalaw, a sister Codigo (el 688) la sentencia que no declara la
of the testatrix as her sole heir. Hence, on November 10, 1971, nulidad de un testamento olografo que contenga
petitioner ROSA K. Kalaw opposed probate alleging, in substance, SO ORDERED. palabras tachadas, enmendadas o entre
that the holographic Will contained alterations, corrections, and renglones no salvadas por el testador bajo su
insertions without the proper authentication by the full signature of firnia segun previene el parrafo tercero del
From that Order, GREGORIO moved for reconsideration arguing that
the testatrix as required by Article 814 of the Civil Code reading: mismo, porque, en realidad, tal omision solo
since the alterations and/or insertions were the testatrix, the denial to
puede afectar a la validez o eficacia de tales
probate of her holographic Will would be contrary to her right of
palabras, y nunca al testamento mismo, ya por
Art. 814. In case of any insertion, cancellation, testamentary disposition. Reconsideration was denied in an Order,
estar esa disposicion en parrafo aparte de aquel
erasure or alteration in a holographic will the dated November 2, 1973, on the ground that "Article 814 of the Civil
que determine las condiciones necesarias para
testator must authenticate the same by his full Code being , clear and explicit, (it) requires no necessity for
la validez del testamento olografo, ya porque, de
signature. interpretation."
admitir lo contrario, se Ilegaria al absurdo de que
pequefias enmiendas no salvadas, que en nada
ROSA's position was that the holographic Will, as first written, should From that Order, dated September 3, 1973, denying probate, and the afectasen a la parte esencial y respectiva del
be given effect and probated so that she could be the sole heir Order dated November 2, 1973 denying reconsideration, ROSA filed testamento, vinieran a anular este, y ya porque
thereunder. this Petition for Review on certiorari on the sole legal question of el precepto contenido en dicho parrafo ha de
whether or not the original unaltered text after subsequent alterations entenderse en perfecta armonia y congruencia
and insertions were voided by the Trial Court for lack of con el art. 26 de la ley del Notariado que declara
After trial, respondent Judge denied probate in an Order, dated authentication by the full signature of the testatrix, should be nulas las adiciones apostillas
September 3, 197 3, reading in part: probated or not, with her as sole heir. entrerrenglonados, raspaduras y tachados en
las escrituras matrices, siempre que no se
The document Exhibit "C" was submitted to the salven en la forma prevenida, paro no el
Ordinarily, when a number of erasures, corrections, and
National Bureau of Investigation for documento que las contenga, y con mayor
interlineations made by the testator in a holographic Will litem not motivo cuando las palabras enmendadas,
examination. The NBI reported that the been noted under his signature, ... the Will is not thereby invalidated
handwriting, the signature, the insertions and/or tachadas, o entrerrenglonadas no tengan
as a whole, but at most only as respects the particular words erased,
additions and the initial were made by one and importancia ni susciten duda alguna acerca del
corrected or interlined.1 Manresa gave an Identical commentary
the same person. Consequently, Exhibit "C" was pensamiento del testador, o constituyan meros
when he said "la omision de la salvedad no anula el testamento,
the handwriting of the decedent, Natividad K.
 accidentes de ortografia o de purez escrituraria, probated in view of article 669 of the Civil Code, issued an order The provision of article 669 of the Civil Code prohibiting the
sin trascendencia alguna(l). dismissing the petition for probate on the ground that said will is null execution of a will by two or more persons conjointly or in
and void ab initio as having been executed in violation of article 669 the same instrument either for their reciprocal benefit or for
of the Civil Code. From that order the proponent of the will has the benefit of a third person, is not unwise and is not
Mas para que sea aplicable la doctrina de
appealed. against public policy. The reason for this provision,
excepcion contenida en este ultimo fallo, es
especially as regards husband and wife, is that when a will
preciso que las tachaduras, enmiendas o
is made jointly or in the same instrument, the spouse who
entrerrenglonados sin salvar saan de pala bras Article 669 of the Civil Code reads as follows:
is more aggressive, stronger in will or character and
que no afecter4 alteren ni uarien de modo
dominant is liable to dictate the terms of the will for his or
substancial la express voluntad del testador
ART. 669. Two or more persons cannot make a will her own benefit or for that of third persons whom he or she
manifiesta en el documento. Asi lo advierte la
conjointly or in the same instrument, either for their desires to favor. And, where the will is not only joint but
sentencia de 29 de Noviembre de 1916, que
reciprocal benefit or for the benefit of a third person. reciprocal, either one of the spouses who may happen to
declara nulo un testamento olografo por no estar
be unscrupulous, wicked, faithless or desperate, knowing
salvada por el testador la enmienda del
as he or she does the terms of the will whereby the whole
guarismo ultimo del año en que fue We agree with appellant's view, supported by eminent property of the spouses both conjugal and paraphernal
extendido3(Emphasis ours). commentators, that the prohibition of article 669 of the Civil Code is
goes to the survivor, may be tempted to kill or dispose of
directed against the execution of a joint will, or the expression by two the other.
or more testators of their wills in a single document and by one act,
WHEREFORE, this Petition is hereby dismissed and the Decision of
rather than against mutual or reciprocal wills, which may be
respondent Judge, dated September 3, 1973, is hereby affirmed in
separately executed. Upon this premise, however, appellant argues Considering the wisdom of the provisions of this article 669
toto. No costs.
that article 669 of the Civil Code has been repealed by Act. No. 190, and the fact that it has not been repealed, at least not
which he claims provides for and regulates the extrinsic formalities of expressly, as well as the consideration that its provisions
SO ORDERED. wills, contending that whether two wills should be executed conjointly are not incompatible with those of the Code of Civil
or separately is but a matter of extrinsic formality. Procedure on the subject of wills, we believe and rule that
said article 669 of the Civil Code is still in force. And we are
G.R. No. L-2071 September 19, 1950
not alone in this opinion. Mr. Justice Willard as shown by
The question now raised by appellant has recently been decided by his Notes on the Civil Code, on page 48 believes that this
this court adversely to him in In re Will of Victor Bilbao, supra, p. 144. article 669 is still in force. Sinco and Capistrano in their
Testate estate of Isabel V. Florendo, deceased. TIRSO
It appears in that case that on October 6, 1931, the spouses Victor work on the Civil Code, Vol. II, page 33, favorably cite
DACANAY, petitioner-appellant,
Bilbao and Ramona M. Navarro executed a will conjointly, whereby Justice Willard's opinion that this article is still in force.
vs.
they directed that "all of our respective private properties both real Judge Camus in his book on the Civil Code does not
PEDRO V. FLORENDO, ET AL., oppositor-appellees.
and personal, and all of our conjugal properties, and any other include this article among those he considers repealed.
property belonging to either or both of us, be given and transmitted Lastly, we find that this article 669 has been reproduced
Sotto and Sotto for appellant. to anyone or either of us, who may survive the other, or who may
word for word in article 818 of the New Civil Code (Republic
Alafriz and Alafriz for appellees. remain the surviving spouse of the other." That will was denied Act No. 386). The implication is that the Philippine
probate by the Court of First Instance of Negros Oriental on the Legislature that passed this Act and approved the New
ground that it was prohibited by article 669 of the Civil Code. The
OZAETA, J.: Civil Code, including the members of the Code
surviving spouse as proponent of the joint will also contended that Commission who prepared it, are of the opinion that the
said article of the Civil Code has been repealed by sections 614 and provisions of article 669 of the old Civil Code are not
This is a special proceeding commenced in the Court of First 618 of the Code of Civil Procedure, Act No. 190. In deciding that
incompatible with those of the Code of Civil Procedure.
Instance of La Union to probate a joint and reciprocal will executed question this court, speaking through Mr. Justice Montemayor, said:
by the spouses Isabel V. Florendo and Tirso Dacanay on October 20,
1940. Isabel V. Florendo having died, her surviving spouse Tirso In view of the foregoing, the order appealed from is affirmed, with
We cannot agree to the contention of the appellant that the
Dacanay is seeking to probate said joint and reciprocal will, which costs against the appellant.
provisions of the Code of Civil Procedure on wills have
provides in substance that whoever of the spouses, joint testators,
completely superseded Chapter I, Title III of the Civil Code
shall survive the other, shall inherit all the properties of the latter, with on the same subject matter, resulting in the complete
an agreement as to how the surviving spouse shall dispose of the repeal of said Civil Code provisions. In the study we have
properties in case of his or her demise.
made of this subject, we have found a number of cases
decided by this court wherein several articles of the Civil
The relatives of the deceased Isabel V. Florendo opposed the Code regarding wills have not only been referred to but
probate of said will on various statutory grounds. have also been applied side by side with the provisions of
the Code of Civil Procedure.
Before hearing the evidence the trial court, after requiring and
receiving from counsel for both parties written arguments on the xxx xxx xxx
question of whether or not the said joint and reciprocal will may be