Assigned Case Digests Succession

BEATRIZ NERA, ET AL., vs.
NARCISA RIMANDO
G.R. No. L-5971 February 27, 1911
FACTS:
The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing
witnesses was present in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their signatures; or whether at that
time he was outside, some eight or ten feet away, in a large room connecting with the
smaller room by a doorway, across which was hung a curtain which made it impossible
for one in the outside room to see the testator and the other subscribing witnesses in the
act of attaching their signatures to the instrument.
ISSUE:
Whether the attaching of signatures should be done in an actual and physical
presence of the subscribing witness.
HELD:
No, not necessarily. The question whether the testator and the subscribing
witnesses to an alleged will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast upon the paper at
the moment of its subscription by each of them, but that at that moment existing
conditions and their position with relation to each other were such that by merely casting
the eyes in the proper direction they could have seen each other sign. To extend the
doctrine further would open the door to the possibility of all manner of fraud,
substitution, and the like, and would defeat .the purpose for which
this particular condition is prescribed in the code as one of the requisites in the
execution of a will.
Reiterating the case of Jaboneta vs. Gustilo, the court ruled that “ "The true test of
presence of the testator and the witnesses in the execution of a Will is not whether they
actually saw each other sign, but whether they might have seen each other sign, had they
chosen to do so, considering their mental and physical condition and position with
relation to each other at the moment of inscription of each signature."
But it is especially to be noted that the position of the parties with relation
to each other at the moment of the subscription of each signature, must be such that they
may see each other sign if they choose to do so. This, of course, does not mean that the
testator and the subscribing witnesses may be held to have executed the instrument in
the presence of each other if it appears that they would not have been able to see each
other sign at that moment, without changing their relative positions or existing
conditions.
FAUSTO E. GAN v. ILDEFONSO YAP
G.R. No. L-12190, August 30, 1958
FACTS:
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.
REZEILE S. MORANDARTE | Page 1 of 2

On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court
of first instance with a petition for the probate of a holographic will allegedly executed by
the deceased.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the lower court judge
refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence the petition.
The will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of four witnesses.
ISSUE:
Whether a holographic will be probated upon the testimony of witnesses who have
allegedly seen it and who declare that it was in the handwriting of the testator.
HELD:
NO. The execution and the contents of a lost or destroyed holographic will may not
be proved by the bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity.
"In the probate of a holographic will" says the New Civil Code (Art. 811), "it shall
be necessary that at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's handwriting) and if the court
deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or they may
deliberately lie in affirming it is in the testator's hand. However, the oppositor may
present other witnesses who also know the testator's handwriting, or some expert
witnesses, who after comparing the will with other writings or letters of the deceased,
have come to the conclusion that such will has not been written by the hand of the
deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may
use its own visual sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity3 —
the testator's handwriting — has disappeared.
REZEILE S. MORANDARTE | Page 2 of 2

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REZEILE S. MORANDARTE | Page 2 of 2

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