LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

D E C I S I O NMay a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents:Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro’s death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter’s last will and testament. In 1981, the court issued an order admitting Alejandro’s will to probate. Private respondents did not appeal from said order. In 1983, they filed a “Motion To Declare The Will Intrinsically Void.” The trial court granted the motion and issued an order, the dispositive portion of which reads:“WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government.” [1]Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant’s brief within the extended period granted. [2] This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT’s, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion.An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely “interlocutory”, hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991.Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro’s will that was earlier admitted to probate.Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain the status quo or lease of the premises thereon to third parties. [3] Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro.The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. [4]It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. [5] Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution. [6]It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, [7] particularly on three aspects: ð whether the will submitted is indeed, the decedent’s last will and testament;ð compliance with the prescribed formalities for the execution of wills;

ð the testamentary capacity of the testator; [8]ð and the due execution of the last will and testament. [9]Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, [10] that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. [11]The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. [12] Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, [13] the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law [14] become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium - the very object of which the courts were constituted was to put an end to controversies. [15] To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. [16] The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, [17] which circumstances do not concur herein.Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court. [18] It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession.Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that “an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed.” [19] The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will. It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. [20] But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give - Nemo praesumitur donare. [21] No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity – that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court.Furthermore, Alejandro’s disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his “only beloved wife”, is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse’s estate.

Petitioner’s motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir.WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,vs.

JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face is void because it is written in English, a language not known to the illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of Appeals which reveal the following tangled strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named Agapito who used the surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why on her death she had accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case).

Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the ejectment order.

In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with counter-petition for administration and preliminary injunction". Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by means of undue influence employed by Marina and Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).

To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore that the alleged will was falsified (p. 109, Record).

Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April 23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's son but merely an anak-anakan who was not legally adopted (p. 143, Record).

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of administration because of the non-appearance of her counsel at the hearing. She moved for the reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her contention that the alleged will is void because Marcelina did not appear before the notary and because it is written in English which is not known to her (pp. 208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284, Record).Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record).

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know English, the language in which the win was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from various banks the deposits Marcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and, should she persist, she might lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention Evangeline in her letter dated September 11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to the record of the testamentary proceeding. Evangeline was not the custodian of the record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the sum of ten thousand pesos was needed in order that Nenita could get a favorable decision. Evangeline also denied that she has any knowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of the Court of Appeals for investigation, report and recommendation. He submitted a report dated October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix and the three attesting witnesses did not appear before him and that he notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the administrative case for having allegedly become moot and academic.

We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void win should have inherited the decedent's estate.

A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code).

Administrative action may be taken against a judge of the court of first instance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).

In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary for one month is imposed on respondent judge (his compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot and academic because she is no longer employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).

SO ORDERED.

G.R. No. L-4067 November 29, 1951In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,

vs.JULIANA LACUESTA, ET AL., respondents.

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES (Sgd.) BIBIANA ILLEGIBLE The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

G.R. No. L-5971 February 27, 1911BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.NARCISA RIMANDO, defendant-appellant.

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.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held 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 been 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. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that 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.

The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.CELSO ICASIANO, petitioner-appellee,

vs.NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator. 1äwphï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix

herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,vs.

HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641;

Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

EN BANC

June 30, 1955G.R. No. L-7179

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,vs.

DOÑA MATEA LEDESMA, oppositor-appellant.

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was made directly to this Court because the value of the properties involved exceeded two hundred thousand pesos. Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution. The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers. Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in order to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws

in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been separated from the deceased's quarters, and standing at a much lower level, so that conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in a room where the servants used to eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly induced by two highly leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18 years of service to the deceased. Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and the identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil and testament (like legado, partes iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and that the deceased was a woman of wide business interests. The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870). At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed. The decision admitting the will to probate is affirmed, with costs against appellant.

G.R. No. 106720 September 15, 1994SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix.

xxx xxx xxx

While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.

xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing

book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will herein.

Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate. 3 (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), 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 testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.

EN BANC

[G.R. No. L-26615. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First

Instance of Manila, Branch and CONSUELO GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First

Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA NARCISO,

VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA

NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.

SYLLABUS1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE; TESTATRIX’S DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER WILL.— The declarations in court of the opthalmologist as to the condition of the testatrix’s eyesight fully establish the fact that her vision remained mainly for viewing distant objects and not for reading print; that she was, at the time of the execution of the second will on December 29, 1960, incapable of reading and could not have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR.— Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Dña. Gliceria, the typographical errors remained uncorrected thereby indicating that the execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of one’s worldly possessions should be embodied in an informal and untidy written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE — READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.— The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the 1960 will there is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines that "if the testator is blind, the will shall be read to him twice," have not been complied with, the said 1960 will suffer from infirmity that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR.— Considering that the alleged deed of sale was executed when Gliceria del Rosario was already practically blind and that the consideration given seems unconscionably small for the properties, there was likelihood that a case for annulment might be filed against the estate or heirs of Alfonso Precilla. And the administratrix being the widow and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to the estate. This, plus her conduct in securing new copies of the owner’s duplicate of titles without the court’s knowledge and authority and having the contract bind the land through issuance of new titles in her husband’s name, cannot but expose her to the charge of unfitness or unsuitability to discharge the trust, justifying her removal from the administration of the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE RIGHT OF POSSESSION OF REAL PROPERTY." — On the matter of lis pendens, the provisions of the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of the register of deeds of the province in which the property is situated, if the action affects "the title or the right of possession of (such) real property."cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is simply the fitness or unfitness of said special administratrix to continue holding the trust, it does not involve or affect at all the title to, or possession of, the properties covered by TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties.

D E C I S I O NREYES, J.B.L., J.:

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will an, testament of the late Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by certain alleged heirs of said decedent seeking (1) to compel the probate court to remove Consuelo S. Gonzales-Precilla as special administratrix of the estate, for conflict of interest, to appoint a new one in her stead; and (2) to order the Register of Deeds of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be properly belonging to the estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:chanrob1es virtual 1aw library

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendents, ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the Court of First Instance of Manila for probate of the alleged last will and testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her appointment as special administratrix of the latter’s estate, said to be valued at about P100,000.00, pending the appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, — the latter five groups of persons all claiming to be relatives of Doña Gliceria within the fifth civil degree. The oppositions invariably charged that the instrument executed in 1960 was not intended by the deceased to be her true will; that the signatures of the deceased appearing in the will was procured through undue and improper pressure and influence the part of the beneficiaries and/or other persons; that the testatrix did not know the object of her bounty; that the instrument itself reveals irregularities in its execution, and that the formalities required by law for such execution have not been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground that the latter possesses interest adverse to the estate. After the parties were duly heard, the probate court, in its order of 2 October 1965, granted petitioner’s prayer and appointed her special administratrix of the estate upon a bond for P30,000.00. The order was premised on the fact the petitioner was managing the properties belonging to the estate even during the lifetime of the deceased, and to appoint another person as administrator or co administrator at that stage of the proceeding would only result in further confusion and difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent motion to require the Hongkong & Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965. The court denied this motion on 22 October 1965 for being premature, it being unaware that such deposit in the name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the special administratrix. It was their claim that the special administratrix and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a simulated and fraudulent deed of absolute sale dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land and the improvements thereon located on Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors contended that since it is the duty of the administrator to protect and conserve the properties of the estate, and it may become necessary that, an action for the annulment of

the deed of sale land for recovery of the aforementioned parcels of land be filed against the special administratrix, as wife and heir of Alfonso Precilla, the removal of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing the Special Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate. It was alleged that on 22 October 1965, or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix of the estate of the deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for the issuance of new copies of the owner’s duplicates of certain certificates of title in the name of Gliceria del Rosario, supposedly needed by her "in the preparation of the inventory" of the properties constituting the estate. The motion having been granted, new copies of the owner’s duplicates of certificates appearing the name of Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965, according to the oppositors, the same special administratrix presented to the Register of Deeds the deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736 and 81737) were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will, the probate court took note that no evidence had been presented to establish that the testatrix was not of sound mind when the will was executed; that the fact that she had prepared an earlier will did not, prevent her from executing another one thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960 testament was contained in one page does not render the latter invalid; that, the erasures and alterations in the instrument were insignificant to warrant rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were noted by the oppositors are even indicative of their truthfulness. The probate court, also considering that petitioner had already shown capacity to administer the properties of the estate and that from the provisions of the will she stands as the person most concerned and interested therein, appointed said petitioner regular administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case being docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14 December 1965 for the removal of the then special administratrix, as follows:jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special administratrix and to appoint another one in her stead, is in order that an action may be filed against the special administratrix for the annulment of the deed of sale executed by the decedent on January 10, 1961. Under existing documents, the properties sold pursuant to the said deed of absolute sale no longer forms part of the estate. The alleged conflict of interest is accordingly not between different claimants of the same estate. If it is desired by the movants that an action be filed by them to annul the aforesaid deed absolute sale, it is not necessary that the special administratrix be removed and that another one be appointed to file such action. Such a course of action would only produce confusion and difficulties in the settlement of the estate. The movants may file the aforesaid proceedings, preferably in an independent action, to secure the nullity of the deed of absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the decedent, the same was also denied, for the reason that if the movants were referring to the old titles, they could no longer be produced, and if they meant the new duplicate copies thereof that were issued at the instance of the special administratrix, there would be no necessity therefor, because they were already cancelled and other certificates were issued in the name of Alfonso Precilla. This order precipitated the oppositors’ filing in this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given due course on 6 October 1966.

On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the Register of Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And when said official refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles contending that the matter of removal and appointment of the administratrix, involving TCT Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon denial of this motion on 12 November 1966, oppositors filed another mandamus action, this time against the probate court and the Register of Deeds. The case was docketed and given due course in this Court as G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the order allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special administratrix) to witness the execution of the last will of Doña Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and sound mind, although she was being aided by Precilla when she walked; 3 that the will, which was already prepared, was first read "silently" by the testatrix herself before she signed it; 4 that he three witnesses thereafter signed the will in the presence of the testatrix and the notary public and of one another. There is also testimony that after the testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and deed, the notary public asked for their respective residence certificates which were handed to him by Alfonso Precilla, clipped together; 5 that after comparing them with the numbers already written on the will, the notary public filled in the blanks in the instrument with the date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also testified that on that occasion no pressure or influence has been exerted by any person upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are evident from the records. The will appeared to have been prepared by one who is not conversant with the spelling of Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two of whom are fellow Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an important document, 10 and who took their residence certificates from them a few days before the will was signed. 11 Precilla had met the notary public and witnesses Rosales and Lopez at the door of the residence of the old woman; he ushered them to the room at the second floor where the signing of the document took place; 12 then he fetched witness Decena from the latter’s haberdashery shop a few doors away and brought him to, the house the testatrix. 13 And when the will was actually executed Precilla was present. 14

The oppositors-appellants in the present case, however, challenging the correctness of the probate court’s ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when Doña Gliceria del Rosario saw him for consultation on 11 March 1960 he found her left eye to have cataract (opaque lens), 15 and that it was "above normal in pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to the conditions of her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from which you could inform the court as to the condition of the vision of the patient as to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which showed that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye with her correction 20 over 300 (20/300).

"Q In layman’s language, Doctor, what is the significance of that notation that the right had a degree of 20 over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only "counting fingers," 17 at five feet. The cross-examination of the doctor further elicited the following responses:jgc:chanrobles.com.ph"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?"A After her discharge from the hospital, she was coming to my clinic for further examination and then sometime later glasses were prescribed.

x x x

"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the eye which I operated — she could see only forms but not read. That is on the left eye.

"Q How about the right eye?"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under medical supervision up to 1963 with apparently good vision", the doctor had this to say:jgc:chanrobles.com.ph

"Q When yon said that she had apparently good vision you mean that she was able to read?"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report was made on pure recollections and I recall she was using her glasses although I recall also that we have to give her medicines to improve her vision, some medicines to improve her identification some more.

x x x

"Q What about the vision in the right eve, was that corrected by the glasses?"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record."Q The vision in the right eye was corrected?"A Yes That is the vision for distant objects."cralaw virtua1aw library(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument "silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, to much so that the words had to be written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &", apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doña Gliceria. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge’’, remained uncorrected, thereby indicating that execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of one’s worldly possessions should be embodied in an informal and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so. The record is thus convincing that

the supposed testatrix could not have physically read or understood the alleged testament, Exhibit "D", and that its admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in no way proves; that she was able to read a closely typed page, since the acts shown do not require vision at close range. It must be remembered that with the natural lenses removed, her eyes had lost the power of adjustment to near vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal reading distances. Writing or signing of one’s name, when sufficiently practiced, becomes automatic, so that one need only to have a rough indication of the place where the signature is to be affixed in order to be able to write it. Indeed, a close examination of the checks, amplified in the photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the alleged testatrix could not see at normal reading distance: the signatures in the checks are written far above the printed base, lines, and the names of the payees as well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged."cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testator’s) other senses. 19

In connection with the will here in question, there is nothing in the records to show that the above requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the deceased Doña Gliceria (Petition, G.R. No. L-26615, Annex "B").

The oppositors’ petition was based allegedly on the existence in the special administratrix of an interest adverse to that of the estate. It was their contention that through fraud her husband had caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition) reasoned out that since the properties were already sold no longer form part of the estate. The conflict of interest would not be between the estate and third parties, but among the different claimants of said properties, in which case, according to the court, the participation of the special administratrix in the action for annulment that may be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity of the conveyance or sale of the properties. In short, if proper, the action for annulment would have to be undertaken on behalf of the estate by the special administratrix, affecting as it does the property or rights of the deceased. 20 For the rule is that only where there is no special proceeding for the settlement of the estate of the deceased may the legal heirs commence an action arising out of a right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an ordinary and separate action would have to be instituted, the matter not falling within the competence of the probate court. 22 Considering the facts then before it, i.e., the alleged deed of sale having been

executed by Gliceria del Rosario on 10 January 1961, when she was already practically blind; and that the consideration of P30,000.00 seems to be unconscionably small for properties with a total assessed value of P334,050.00, there was likelihood that a case for annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to the estate. 22 Not only this, but the conduct of the special administratrix in securing new copies of the owner’s duplicates of TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority, and on the pretext that she needed them in the preparation of the inventory of the estate, when she must have already known by then that the properties covered therein were already "conveyed" to her husband by the deceased, being the latter’s successor, and having the contract bind the land through issuance of new titles in her husband’s name cannot but expose her to the charge of unfitness or unsuitableness to discharge the trust, justifying her removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the Hongkong and Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken action on the complaint against the alleged withdrawals from the bank deposits of the deceased, because as of that time the court had not yet been apprised that such deposits exist. Furthermore, as explained by the special administratrix in her pleading of 30 October 1965, the withdrawals referred to by the oppositors could be those covered by checks issued in the name of Gliceria del Rosario during her lifetime but cleared only after her death. That explanation, which not only appears plausible but has not been rebutted by the petitioners-oppositors, negates any charge of grave abuse in connection with the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of the register of deeds of the province in which the property is situated, if the action affects "the title or the right of possession of (such) real property." 23 In the case at bar, the pending action which oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that case is concerned merely with the correctness of the denial by the probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in controversy there is simply the fitness or unfitness of said special administratrix to continue holding the trust; it does not involve or affect at all the title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being meritorious, the appealed order is set aside and the court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased Doña Gliceria Avelino del Rosario as special administrator for the purpose of instituting action on behalf of her estate to recover the properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.