unson - viado non

8/9/2019 Unson - Viado Non

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In re will of Josefa Zalamea y Abella, deceased. PEDROUNSON, petitioner and appellee, vs. ANTONIO ABELLA ET

AL., opponents and appellants.

1.1.WILLS; NON-PRODUCTION OF ONE ATTESTINGWITNESS.Though the general rule is that, if opposition

is presented to the probate of a will, all the attestingwitnesses must be produced; nevertheless, there areexceptions to this rule, to wit: When one of the witnesses isdead, or cannot be served with process of the court, or hisreputation for truth is questioned, or he appears to behostile to the cause of t he parties seeking the probate ofthe will. In such cases t he will may be admitted to proba te,if upon the evidence actually introduced the court issatised of the due execution of the will, inasmuch as evenif said witness had been produced and had testiedagainst the application, the result would not have beenchanged, if the court was satised upon the evidenceadduced that the will has been executed in the mannerprescribed by the law.

1.2.ID.; INVENTORY MADE PART OF AWlLL; ATTESTATION CLAUSE. When in a will

reference is made to an inventory of t he properties of t hetestator, which has thus been made a part of the will, ifthe will has an attestation clause that meets therequirements of the law, no other attestation clause isnecessary for the said inventory, but t hat of t he will will besufficient for the validity both of t he will and the inventory.

3.ID.; ID.; PAGING IN ARABIC NUMERALS.Paging ininventory with Arabic numerals is in compliance with the

spirit of t he law, requiring that the paging of a will be

made in letters, and is just as valid as paging with letters A, B, C, etc., under the circumstances stated in the case of Aldaba vs. Roque (43 Phil., 378).

APPEAL from a judgment of the Court of First Instance ofLaguna. Paredes, J.

The facts are stat ed in the opinion of the court. Crispin Oben for appellants. Pedro Guevara and Carlos Ledesma for a ppellee.

VILLAMOR, J.:

On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60years old, who was residing in the municipality of Pagsanjan,

Province of Laguna, executed her last will and testamentwith an attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who signed with her

all the pages of said documents. The testatrix died on the 6thof January, 1921, and, as t he record shows, the executorappointed in the will, Pedro Unson, led in the Court of FirstInstance of Laguna on the 19th of January of the same yearan application for the probate of t he will and the issuance of

the proper letters of administration in his favor. To said application an opposition was presented by Antonio Abella, Ignacia Abella, Avicencia Abella, and

Santiago Vito, alleging that the supposed will of the deceasedZalamea was not executed in conformity with the provisionsof the law, inasmuch as it was not paged correlatively inletters, nor was there any attestation clause in it, nor was itsigned by the testatrix and the witnesses in the presence of

each other.


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Trial having been held, the judge a quo overruled theopposition of the contestants, and ordered the probate of thewill, Exhibit A, and the inventory, Exhibit A-1, holding thatboth documents contained the true and last will of thedeceased Josefa Zalamea.

From the judgment of the court below, the contestantshave appealed, and in their brief they assign three errors,which, in their opinion, justify the reversal of the judgmentappealed from.

The rst error assigned by the appellants as committed bythe court below is its nding to t he effect that Exhibit A, saidto be the will of the deceased Josefa Zalamea, was executedwith all the solemnities required by the l aw.

The arguments advanced by appellants' counsel in supportof the rst assignment of error tend to impeach thecredibility of the witnesses f or t he proponent, specially thatof Eugenio Zalamea. We have m ade a careful examination ofthe evidence, but have not found anything that would justifyus in disturbing the nding of the court a q uo.' The attestingwitnesses, Eugenio Zalamea and Gonzalo Abaya, clearlytestify that toget her with the other witness to t he will, Pedro

de Jesus, they did sign each and every page of the will and ofthe inventory in the presence of each other and of thetestatrix, as the latter di d likewise sign all the pages of t hewill and of the inventory in their presen ce.

In the ir brief the appellants intimate t hat one of the pagesof the will was not signed by the testatrix, nor by thewitnesses on the day of the execution of the will, that is, onthe 19th of July, 1918, basing their contention on the

testimony of Aurelio Palileo, who says that on one occasion

Gonzalo Abaya told him that one of the pages of the will hadnot been signed by the witnesses, nor by the testatrix on theday of its execution. Palileo's testimony is entirelycontradicted by Gonzalo Abaya not only in the direct, but inthe rebuttal, evidence as well. To our mind, Palileo's

testimony cannot prevail over that of the attesting witnesses,Gonzalo Abaya and Eugenio Zalamea. The appellantsimpeach the credibility of Eugenio Zalamea, for having madea sworn declaration before the justice of the peace of SantaCruz, Laguna, before the trial of this case, to the effect thathe was really one of the witnesses to t he will in question,which fact was corroborated by himself at the trial. Theappellants take Zalamea's testimony in connection with the

dismissal of a criminal case against a nephew 6f his, inwhose success he was interested, and infer from this fact thepartiality of his testimony. We deem this allegation of littleimportance to impeach the credi bility of the witness Zalamea,especially because his testimony is corroborated by the otherattesting witness, Gonzalo Abaya, and by attorney Luis

Abaya, who had prepared the testament at the instance ofthe testatrix. The foregoing is sufficient for us to con clude

that the rst assignment of error made by the appellants isgroundless.The appellants contend that the court below erred in

admitting the w ill to probate notwithstanding the om ission ofthe proponent to produce one of the attesting witnesses. At the trial of this case the attorneys for the proponent

stated to the court that they had necessarily to omit thetestimony of Pedro de Jesus, one of the persons who appear

to have witnessed the execution of the will, for there were


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reasonable grounds to believe that said witness was openlyhostile to the proponent, inasmuch as since theannouncement of the trial of the petition f or the probate ofthe will, said witness has been in frequent communicationwith the contestants and their attorney, and has refused to

hold any conference with the attorneys for the proponent. Inreply to this, the attorney for the contestants, said to thecourt, "without discussing for the present whether or n ot inview of those facts (the facts mentioned by the attorneys forthe petitioner), in the hypothesis that the same are proven,they are rel ieved from produQing that witness, for while it' isa matter not decided, it is a recognized rule tha t the fact thata witness is hostile does not justify a party to omit his

testimony; without discussing this, I say, I move that saidstatement be st ricken out, and if the proponent wants thesefacts to stand in the record, let him prove them." The court aquo ruled, saying, "there is no need."

To this ru ling of the court, the attorney f or the appellantsdid not take any exception.

In the case of Avera vs. Garcia and Rodriguez (42 Phil.,145), recently decided by this court, in deciding the question

whether a will can be admitted to probate, where oppositionis made, upon the proof of a single attesting witness, withoutproducing or accounting for the absence of the other two, itwas said; "while it is undoutedly true that an uncontestedwill may be proved by the testimony of only one of the threeattesting witnesses, nevertheless in Cabang vs. Delnado (34Phil., 291), this court declared after an elaborateexamination of the American and English authorities- that

when a contest is instituted, all of t he attesting witnesses

must be examined, if alive and within reach of the process ofthe court."In the present c ase no explanation was m ade at t he trial as to whyall three of t he attesting witnesses were not produced, but theprobable reason is found in the fact that, although the petition forthe probate of this will had been pending from December 21, 1917,until the date set for the hearing, which was April 5, 1919, noformal contest was entered until the very day set f or the hearing;and it is probable that t he attorney for the proponent, believing ingood faith that probate would not be contested, repaired to thecourt with only one of t he three a ttesting witnesses at h and, andupon nding that the will was contested, incautiously permittedthe case t o go to proof without asking for a p ostponement of thetrial in order that he might produce all the att esting witnesses.

"Although this circumstance may explain why the threewitnesses were not produced, it does not in itself supply any basis for changing the rule expounded in the case ab ove referred to; andwere it not for a fact now to be mentioned, this court wouldprobably be compelled to reverse this case on the ground that theexecution of the will had not been proved by a sufficient number ofattesting witnesses.

"It appears, however, that this point was not raised by the

appellant in the lower court either upon the submission of thecause f or determination in that court or upon the occasion of theling of the motion f or a new trial. Accordingly it is insisted f or theappellee that this question cannot now be raised for the rst timein this court. We believe this point is well taken, and the rstassignment of error must be declared not to be well taken. Thisexact question has been decided by the Supreme Court ofCalifornia adversely to the contention of the appellant, and we seeno reason why the same rule of practice should not be observed by

us. (Estate of McCarty, 58 Cal., 335, 337.)


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"There are at least two reasons why the appellate tribunals aredisinclined to permit certain questions to be raised for the rsttime in the second instance. In the rst place it eliminates the

judicial criterion of the Court of Fithere presented and makes the appellate court in effect a court ofrst instance with reference to that point, unless the case isremanded for a n ew trial. In the second place, it perm its, if it doesnot encourage, attorneys to t rie with the administration of justiceby concealing from the trial court and from their opponent theactual point upon which reliance is placed, while they are engagedin other discussions more simulated than real. Theseconsiderations a re, we th ink, decisive.

"In ruling upon the point above presented we do not wish to beunderstood as laying down any hard and fast rule that would provean embarrassment to this court i n the administration of justice inthe future. In one way or another we are constantly hereconsidering aspects of cases and applying doctrines which haveescaped the attention of all persons concerned in the litigationbelow; and this is necessary if this court is to contri bute the partdue from it in the correct decision of the cases brought before it.What we mean to declare is that when we believe that substantial

justice has been done in the Court of Firelied on for reversal in this court ap pears to be one which ought

properly to have been presented in that court, we will in theexercise of a sound discretion ignore such question upon appeal;and this is the more proper when the question relates to a defectwhich might have been cured in the Court of First Instance ifattention had been called to it there. In the present case, if theappellant had raised this question in the lower court, either at t hehearing or upon a motion for a new trial, that court would havehad the power, and it would have been its duty, considering thetardy institution of the contest, to have granted a new trial inorder tha t al l the witnesses to the will might be b rought into court.

But instead of thus calling the error to t he attention of the courtand his adversary, the point is rst raised by the appellant in thiscourt. We hold that thi s is too l ate.

"Properly understood, the caseof Cabang vs. Delnado, supra, contains nothing inconsistent with

the ruling we now make, for it appears from the opinion in thatcase that the proponent of the will had obtained an order for arepublication and new trial f or the avowed purpose of presentingthe two additional attesting witnesses who had not been previouslyexamined, but nevertheless subsequently f ailed without anyapparent reason to take their testimony. Both parties in that casewere therefore fully apprised that the question of the number ofwitnesses necessary to p rove the will was in issue in the lowercourt."

In the case a t bar, we do not think this question properly tohave been raised at the trial, but in the memorandumsubmitted by the attorney for the appellants to the trialcourt, he contended that the will could not be admitted toprobate because one of the witnesses to t he will was notproduced, and that the voluntary non-production of thiswitness raises a presumption against the pretension of the

proponent. The trial court found that t he evidence introducedby the proponent, consisting of the testimony of the twoattesting witnesses and the other witness who was present atthe execution, and had charge of the preparation of the willand the inventory ,Exhibits A and A-1, was sufficient. Asannounced inCabang vs. Delnado, supra, the general rule isthat, where opposition is made to t he probate of a will, theattesting witnesses must be produced. But there are

exceptions to this rule, for instance, when a witness is dead,


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or cannot be served with process of the court, or hisreputation for truth has been questioned or he appearshostile to the cause of t he proponent. In such cases, the willmay be admitted to probate without the testimony of saidwitness, if, upon the other p roof s adduced in the case, the

court is satised that the will has been duly executed.Wherefore, we nd that the non-production of the attestingwitness, Pedro de Jesus, as accounted for by the attorney forthe proponent at t he trial, does not render void the decree ofthe court a quo, allowing the p robate.

But supposing that said witness, when cited, had testiedadversely to the application, this would not by itself havechange the result reached by the court a quo, for secti on 632

of the Code of Civil Procedure provides that a will can beadmitted to probate, notwithstanding that one or morewitnesses do not remember having attested it, provided thecourt is satised upon the evidence adduced that the will hasbeen executed and signed in the manner prescribed by thelaw.

The last error assigned by the appellants is made toconsist in the probate of the inventory, Exhibit A-1, despite

the fact t hat th is exhibit has no attestation clause in it, andits paging is made in Arabic numerals and not in letters.In the third paragraph of the.will, reference is made to t he

inventory, Exhibit A-1, and at the bottom of said will, thetestatrix Josefa Zalamea says:"In witness whereof, I sign this will composed of ten foliosincluding the page containing the signatures an d the attestation ofthe witnesses; I have likewise signed the inventory attached to this

will composed of ten folios in the presence of Messrs. Gonzalo

Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality ofPagsanjan, Laguna, Philippine Islands, this 19th of July, 1918."

And the attestation clause is as follows:"The foregoing will composed of ten folios including this onewhereunto we have affixed our signatures, as well as the inventory

of the properties of Doa Josefa Zalamea y Abella, was read toDoa Josefa Zalamea y Abella, and the latter affixed her name tothe last, and each ,and every page of this will and inventorycomposed of ten folios in our presence; and she declared this to beher last will and testament and at her request we have affixedhereunto our respective signatures in her presence and in thepresence of each other as witnesses to t he will and the inventorythis 19th of July, 1918, at Pagsanjan, Laguna, P. I.

(Sgd.) "GONZALO ABAYA,"EUGENIO ZALAMEA,"PEDRO DE JESUS."

In view of the fact t hat the inventory is referred to in the willas an integral part of it, we nd that the foregoingattestation clause is in compliance with section 1 of Act No.2645, which requires t his solemnity for the validity of a will,and makes unnecessary any other attestation clause at t heend of the inventory. As to the paging of the will in Arabic numerals, instead of

in letters, we adhere to the doctrine announced in the caseofAldaba vs. Roque (p. 378, ante), recently decided by thiscourt. In that case the validity of the will was assailed on theground that its folios were paged with the letters A, B, C,etc., instead of with the letters "one," "two," "three," etc. Itwas held that this way of numbering the pages of a will is in

compliance with the spirit of the law, inasmuch as either oneof these methods indicates the correlation of the pages and


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serves to prevent the abstraction of any of them. In thecourse of the decision, we said: "It might be said that theobject of t he law in requiring that the paging be made inletters ,is to m ake falsication more difficult, but it should benoted that since all the pages of the testament are si gned at

the margin by the testatrix and the witnesses, the difficultyof forging the signatures in either case rem ains the same. Inother words the more or l ess degree of f acility to imitate thewriting of the letters A, B, C, etc., does not make for theeasiness to forge the signatures. And as in the present casethere exists the guaranty of the authenticity of thetestament, consisting in the signatures on the left margins ofthe testament and the paging thereof as declared in the

attestation clause, the holding of this courtin Abangan vs. Abangan (40 Phil., 476), might as well berepeated:" The object of the solemnities surrounding the execution of wills isto close the door against bad faith and fraud, to avoid substitutionof wills and testaments and to guaranty their truth andauthenticity. Therefore the laws on this subject should beinterpreted in such a way as to att ain these primordial ends. But,on the other h and, also one must not lose sight of the fact that it isnot the object of the law to rest rain and curtail the exercise of t heright to make a will. So when an interpretation already givenassures such ends, any other i nterpretation whatsoever, that addsnothing but demands more requisites entirely unnecessary,useless, and frustrative of the testator's last will, must bedisregarded/

"In that case the testament was written on one page, and theattestation clause on another. Neither one of these pages was

numbered in any way, and it was held: 'ln a will consisting of twosheets the rst of which contains all the testamentary dispositions

and is signed at the bottom by the testator and three witnessesand the second contains only the attestation clause and is signedalso at t he bottom by the three w itnesses, it is not necessary tha tboth sheets be f urther signed on their margins by the tes tator andthe witnesses, or be paged.'

"This means that, according to the particular case, the omissionof paging does not necessarily render the testament invalid."The law provides that the numbering of the pages should be inletters placed on the upper part of t he sheet, but if the pagingshould be placed in the lower part, would the tes tament be void forthis sole reason? We believe not. The law also provides that thetestator and the witnesses must sign the left margin of each of thesheets of the testament; but if they should sign on the rightmargin, would this fact also annul the testament? Evidently not.

This court has a lready held in Avera vs. Garcia and Rodriguez (42PhiL, 145):

" 'lt is true that the statute says that the testator and theinstrumental witnesses shall sign their names on the left marginof each and every page; and it is undeniable that the generaldoctrine is to the effect that all statutory requ irements as to theexecution of wills must be f ully complied with. The same doctrineis also deducible from cases h eretofore decided by this court.'

" 'Still some details at times creep into legislative enactmentswhich are so tr ivial that it would be absurd to sup pose that t heLegislature could have attached any decisive importance to them.The provision to the effect that the signatures of t he testator andwitnesses shall be written on the left margin of each pageratherthan on the right marginseems to be 6f this character. So far asconcerns the authentication of the will, and Of every part t hereof,it can make no possible difference whether the names appear onthe left or on the right margin, provided they are on one or the

other. In C araig vs. Tatlonghari(R. G. No. 12558, decided March


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23, 1918, not reported), this court declared a will void which wastotally lacking in the signatures required to be written on itsseveral pages; and in the case of Re Estate of S aguinsin (41 Phil.,875), a will was likewise declared void which contained thenecessary signatures on the margin of each leaf (folio), but not inthe margin of each page containing written matter.'

"We do not desire to intimate that the numbering in letters is arequisite of no importance. But si nce its pri ncipal object is to g ivethe correlation of the pages, we hold that this object may beattained by writing one, two, three, etc., as well as by writing A, B,C, etc."

We see no reason why the same rule should not be appliedwhere the paging is in Arabic numerals, instead of in letters,as in the inventory in question. So that, adhering to t he viewtaken by this court in the case of Abangan vs. Abangan, andfollowed in Aldaba vs. Roque, with regard to the appreciationof the solemnities of a will, we nd that the judgmentappealed from should be, as is hereby, affirmed with the costsagainst the appellants. So ordered.

Araullo, C. J.,Malcolm, Avancea,Ostrand, and Romualdez, JJ.,

concur.

Judgment affirmed.


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No. L-76464. February 29, 1988. *TESTATE ESTATE OF THE LATE ADRIANA MALOTO,

ALDINA MALOTO CASIANO, CONSTANCIOMALOTO, PURIFICACION MIRAFLOR, ROMANCATHOLIC CHURCH OF MOLO, AND ASILO DEMOLO, petitioners, vs. COURT OF APPEALS,PANFILO MALOTO AND FELINO MALOTO,respondents.Civil L aw; Wills; Revocation of W ill; To constitute a n effective

revocation, the p hysical act of destruction of a w ill must be coupledwith animus re vocandi on the pa rt of the testator. It is clear thatthe physical act of destruction of a w ill, like burning in this case,does not per se constitute an effective revocation, unless thedestruction is coupled with animus revocandi on the part of thetestator. It is not imperative that the physical dest ruction be doneby the tes tator himself. It may be performed by another person butunder the express direction and in the presence of the testator. Ofcourse, it goes without saying that t he document destroyed must bethe will i tself.

Same; Same; Same; Same;Intention to revoke must beaccompanied by overt physical act of burning , tearing, obliteratingor ca ncelling the w ill by the t estator or b y another p erson in his

presence and under his express di In this case, whileanimus revocandi, or the intention to revoke, may be conceded, forthat is a state of mind, yet that requisite alone would not suffice.

Animus revocandi is only one of the necessary elements for theeffective revocation of a l ast will and testament. The intention torevoke must be accompanied by the overt physical act of burning,

tearing, obliterating, or cancelling the will carried out by the

testator or by an other person i n his presence an d under his expressdirection. There is paucity of evidence to sh ow compliance withthese requirements. For one, the document or papers burned by

Adriana's maid, Guadalupe, was not satisfactorily established to bea will at al l, much less the will of Adriana M aloto. For another, theburning was not proven to have been done under the expressdirection of Adriana. And then, the burning was not in herpresence. Both witnesses, Guadalupe and Eladio, were one instating that they were the only ones present at t he place where thestove (presumably in the kitchen) was located in which the papersproferred as a will were burned.

Civil P rocedure; Res Adjudicata; Doctrine of re s adjudicata nds no application in the case at bar; Requisites of res adjudicata.

The doctrine of r es adjudicata nds no application in the presentcontroversy. For a judgment to be a bar to a subsequent case, thefollowing requisites must concur: (1) the presence of a nal former

judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between

the rst and the second action, identity of parties, of s ubjectmatter, and of cause of action. We do not nd here the presence ofall the enumerated requisites.

Same; Same; Same; Strictly speaking, no nal judgmentrendered insofar as the probate of Adriana Maloto's will isconcerned. For one, there is yet, strictly speaking, no nal

judgment rendered insofar as the probate of Adriana Maloto's willis concerned. The decision of the trial court in Special ProceedingNo. 1736, although nal, involved only the intestate Settlement ofthe estate of Adria iana. As such, t hat j udgment could not in anymanner be construed to be nal with respect to the probate of thesubsequently discovered will of t he decedent. Neither is it a

judgment on the merits of the action for probate. This is
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understandably so because the trial court, in the intestateproceeding, was without jurisdiction to rule on the probate of t hecontested will. After a ll, an action for probate, as it implies, isfounded on the presence of a will and with the objective of provingits due execution and validity, something which can not be properlydone in an intestate settlement of estate proceeding which is

predicated on the assumption that the decedent left no will. Thus,there is likewise no identity between the cause of action inintestate proceeding and that in an action for probate, Be tha t as i tmay, it would be remembered that it was precisely because of ourruling in G.R. No. L-30479 that the petitioners instituted thisseparate action for the probate of t he late Adriana Maloto's will.Hence, on these grounds alone, the position of the privaterespondents on thi s score can not be sustained.PETITION for certiorari to review the decision of the Court

of Appeals.The facts are st ated in the opinion of the Court.

SARMIENTO, J.:

This is not the rst t ime that the parties to this case com e tous. In fact, two other cases d irectly related to the present oneand involving the same parties had already been decided by

us in the past. In G.R. No. L-30479 ,1 which was a petition forcertiorari and mandamus instituted by the petitionersherein, we dismissed the petition ruling that the moreappropriate remedy of the petitioners is a separateproceeding for the probate of the will in question. Pursuant tothe said ruling, the petitioners commenced in the then Courtof First I nstance of Iloilo, Special Proceeding No. 2176, forthe probate of the disputed will, which was opposed by theprivate respondents presently, Panlo and Felino, both

surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the

petitioners came to this Court on a petition for review bycertiorari. 2 Acting on the said petition, we set asi de the trialcourt's order and directed it to proceed to hear the case on

the merits. The trial court, after hearing, found the will tohave already been revoked by the testatrix. Adriana Maloto,and thus, denied the petition. The petitioners appealed thetrial court's decision to the Intermediate Appellate Courtwhich, on June 7, 1985, affirmed the order. The petitioners'motion for reconsideration of the adverse decision proved tobe of n o avail, hence, this petition.

For a better understanding of the controversy, a factual

account would be a great help.On October 20, 1963, Adriana Maloto died leaving as heirsher niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondentsPanlo Maloto and Felino Maloto. Believing that thedeceased did not leave behind a last will and testament,these four heirs commenced on November 4, 1963 anintestate proceeding for th e settlement of t heir a unt's estate.

The case was instituted in the then Court of First Instance ofIloilo and was docketed as Special Proceeding No. 1736.However, while the case was still in progress, or to be exacton February 1, 1964, the partiesAldina, Constancio,Panlo, and Felinoexecuted an agreement of extrajudicialsettlement of A driana's estate. The agreement provided forthe division of the estate into four equal parts among theparties. The Malotos then presented the extrajudicial

settlement agreement to the trial court for approval which
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the court did on March 21, 1964. That should have signalledthe end of the controversy, but, unfortunately, it h ad not.

Three years later, or sometime in March 1967, Atty.Sulpicio Palma, a f ormer associate of A driana's counsel, thelate Atty. Eliseo Hervas, discovered a document entitled

"KATAPUSAN NGA PAGBULUT-AN (Testamento)," datedJanuary 3, 1940, and purporting to be the last will andtestament of Adriana. Atty. Palma claimed to have found thetestament, the original copy, while he was going throughsome materials inside the cabinet drawer formerly used by

Atty. Hervas. The document was submitted to the office of theclerk of the Court of First Instance of I loilo on April 1, 1967.Incidentally, while Panlo and Felino are st ill named as heirs

in the said will, Aldina and Constancio are bequeathed muchbigger and more valuable shares in the estate of Adrianathan what they received by virtue of the agreement ofextrajudicial settlement they had earlier signed. The willlikewise gives devises and legacies to ot her parties, amongthem being the petitioners Asilo de Molo, the Roman CatholicChurch of Molo, and Puricacion Miraor.

Thus, on May 24, 1967, Aldina and Constancio, joined by

the other devisees and legatees named in the will, led inSpecial Proceeding No. 1736 a motion for reconsideration andannulment of the proceedings therein and for the allowanceof the will. When the trial court denied their motion, thepetitioner came to us by way of a petition for certiorari andmandamus assailing the orders of the trial court. 3 As westated earlier, we dismissed that petition and advised that aseparate proceeding for the probate of t he alleged will would

be the appropriate vehicle to t hresh out the matters raised bythe petitioners.

Signicantly, the appellate court while nding asinconclusive the matter on whether or not t he document orpapers allegedly burned by the househelp of Adriana,

Guadalupe Maloto Vda, de Coral, upon instructions of thetestatrix, was indeed the will, contradicted itself and foundthat the will had been revoked. The respondent court s tatedthat the presence of animus revocandi in the destruction ofthe will had, nevertheless, been sufficiently proven. Theappellate court based its nding on the facts that thedocument was not in the two safes in Adriana's residence, bythe test atrix going to t he residence of Atty. Hervas to retrieve

a copy of the will left in the latter's possession, and, herseeking the services of Atty. Palma in order to h ave a newwill drawn up. For reasons shortly to be explained, we do notview such facts, even considered collecti vely, as sufficientbases for the conclusion that Adriana Maloto's will had beeneffectively revoked.

There is no doubt as t o the tes tamentary capacity of thetestatrix and the due execution of the will. The heart of the

case lies on the issue as to whether or not the will wasrevoked by Adriana.The provisions of the new Civil Code pertinent to the issue

can be found in Article 830. Art. 830. No will shall be revoked except in the following cases:

1.(1)By implication of law; or2.(2)By some will, codicil, or other writing executed as

provided in case of wills; or


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3.(3) By burning, tearing, cancelling, or obliterawith the i ntention of re voking it, by the t estator h imself, orby some other per son in his p resence, and by his expre ssdirection. If burned, torn, cancelled, or ob literated b y som eother p erson , without t he exp ress d irection of t he t estator,the w ill may still be est ablished, and the est ate d istributed

in accordance t herewith, if i ts con tents, and due executi on,and the fact of i ts u nauthorized destruction, cancellation,or obliteration are established according to the Rules ofCourt. (Italics Supplied.)

It i s clear th at t he physical act of d estruction of a will, likeburning in this case, does not per se constitute an effectiverevocation, unless the destruction is coupled with animusrevocandi on the part of the testator. It is not imperative thatthe physical destruction be done by the testator himself. Itmay be performed by another person but under the expressdirecti on and in the p resence of t he testator. Of course, it goeswithout saying that the document destroyed must be the willitself.

In this case, while animus revocandi, or the intention torevoke, may be conceded, for that is a state of mind, yet that

requisite alone would not suffice, "Animus revocandi is onlyone of the necessary elements for the effective revocation of alast will and testament. The intention to revoke must beaccompanied by the overt physical act of burning, tearing,obliterating, or cancelling the will carried out by the testatoror by another person in his presence and under his expressdirection. There is paucity of evidence to show compliancewith these requirements. For one, the document or papers

burned by Adriana's maid, Guadalupe, was not satisfactorily

established to be a will at all, much less the will of AdrianaMaloto. For another, the burning was not proven to have b eendone under the express direction of Adriana. And then, theburning was not in her presence. Both witnesses, Guadalupeand Eladio, were one in stating that t hey were the only ones

present at the place where the stove (presumably in thekitchen) was located in which the papers proffered as a willwere burned.

The respondent appellate court i n assessing the evidencepresented by the private respondents as oppositors in thetrial court, concluded that the testimony of t he two witnesseswho testied in favor of the will's revocation appear"inconclusive." We share the same view. Nowhere in the

records before us does it appear that the two witnesses,Guadalupe Vda. de Corral and Eladio Itchon, both illiterates,were unequivocably positive that the document burned wasindeed Adriana's will. Guadalupe, we think, believed that t hepapers she destroyed was the will only because, according toher, Adriana told her so. Eladio, on the other hand, obtainedhis information that the burned document was the willbecause Guadalupe told him so, thus, his testimony on this

point is double hearsay. At this juncture, we reiterate that "(it) is an importantmatter of pu blic interest t hat a purported will is not deniedlegalization on dubious grounds. Otherwise, the veryinstitution of testamentary succession will be shaken to itsvery foundations x x x. " 4

The private respondents in their bid for the dismissal ofthe present action for probate instituted by the petitioners

argue that the same is already barred by res ad judicata. They


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claim that this bar was brought about by the petitioners'failure to appeal timely from the order dated November16,1968 of the tri al court i n the intestate p roceeding (SpecialProceeding No. 1736) denying their (petitioners') motion toreopen the case, and their prayer to annul the previous

proceedings therein and to allow the last will and testamentof the late Adriana Maloto. This is untenable.The doctrine of res a djudicata nds no application in the

present controversy. For a judgment to be a bar to asubsequent case, the following requisites must concur: (1) thepresence of a nal former judgment; (2) the former judgmentwas rendered by a court having jurisdiction over the subjectmatter and the parties; (3) the former judgment is a

judgment on the merits; and (4) there is, between the rst and the second action, identity of parties, of subject matter,and of cause of action. 5 We do not nd here the presence of allthe enumerated requisites.

For one, there is yet, strictly speaking, no nal judgmentrendered insofar as the probate of Adriana Maloto's will isconcerned. The decision of the trial court in SpecialProceeding No. 1736, although nal, involved only the

intestate settlement of the estate of A driana. As such, that judgment could not in any manner be construed to be nalwith respect to the probate of the subsequently discoveredwill of the decedent. Neither is it a j udgment on the merits ofthe action for probate. This is understandably so because thetrial court, in the intestate proceeding, was without

jurisdiction to rule 6 Afterall, an action for probate, as it implies, is founded on the

presence of a w ill and with the objective of proving its due

execution and validity, something which can not be properlydone in an intestate settlement of estate proceeding which ispredicated on the assumption that the decedent left no w ill.Thus, there is likewise no identity between the cause ofaction in intestate proceeding and that in an action for

probate. Be that as i t may, it would be remembered that itwas precisely because of our ruling in G.R. No. L-30479thatthe petitioners instituted th is separate a ction for the probateof the late Adriana Maloto's will.

Hence, on these grounds alone, the position of the privaterespondents on this score can not be sustained.

One last note. The private respondents point out that

revocation could be inferred from the fact that "(a) major andsubstantial bulk of the properties mentioned in the will hadbeen disposed of: while an insignicant portion of theproperties remained at the time of death (of the testatrix);and, furthermore, more valuable properties have beenacquired after the execution of the will on January 3, 1940."7Suffice it to state here that as these a dditional matters raisedby the private respondents are extraneous to this special

proceeding, they could only be appropriately taken up afterthe will has been duly probated and a certicate of itsallowance issued.

WHEREFORE, judgment is hereby renderedREVERSING and SETTING ASIDE the Decision dated June7, 1985 and the Resolution dated October 22, 1986, of therespondent Court of Appeals, and a new one ENTERED forthe allowance of Adriana Maloto's last will and testament.

Costs against the private respondents.
http://www.central.com.ph/sfsreader/session/00000149ff47d2daa1b88d45000a0082004500cc/p/AKJ687/?username=Guest#p158scra8960457001http://www.central.com.ph/sfsreader/session/00000149ff47d2daa1b88d45000a0082004500cc/p/AKJ687/?username=Guest#p158scra8960457002http://www.central.com.ph/sfsreader/session/00000149ff47d2daa1b88d45000a0082004500cc/p/AKJ687/?username=Guest#p158scra8960457001http://www.central.com.ph/sfsreader/session/00000149ff47d2daa1b88d45000a0082004500cc/p/AKJ687/?username=Guest#p158scra8960457002


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This Decision is IMMEDIATELY EXECUTORY,SO ORDERED.

Yap (Chairman),Melencio-Herrera, and ParasJJ., concur.

Padilla, J., no part i n the deliberation. Judgment reversed and set asi


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Testate Estate of the Deceased MARIANO MOLO YLEGASPI. JUANA JUAN VDA. DE MOLO,petitioner and appellee, vs. Luz, GLICERIA andCORNELIO MOLO, oppositors and appellants.

1.1.WILLS; REVOCATION BY SUBSEQUENTWILL; EFFECT OF VOID REVOCATORY CLAUSE.Asubsequent will containing a clause revoking a previouswill, having been disallowed for the reason that it was notexecuted in conformity with the provisions of s ection 618 ofthe Code of Civil Procedure as to the making of wills,cannot produce the effect of annuling the previous will,inasmuch as said revocatory clause is void(Samson vs. Naval, 41 Phil., 838).

1.2.ID.; PROBATE;DEPENDENT RELATIVEREVOCATION.Even in the supposition that thedestruction of the original will by the testator could bepresumed from the failure of the petitioner to produ ce it incourt, such destruction cannot have the effect of defeatingthe prior will where it is founded on the mistaken beliefthat the later will has been validly executed and would be

given due effect. The earlier will can still be a dmitted toprobate under the principle of "dependent relativerevocation". The theory on which this principle ispredicated is that the testator did not intend to dieintestate. And this intention is clearly manifest where heexecuted two wills on two different occasions andinstituted his wife as his universal heir.

APPEAL from an order of the Court of First Instance of

Rizal. Tan, J.

The facts are st ated in the opinion of the Court.Claro M . Recto and Seran C. Dizon for appellants.

Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

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

Mariano Molo y Legaspi died on January 24, 1941, in themunicipality of Pasay, province of Rizal, without leaving any

forced heir either in the descending or a scending line. He wassurvived, however, by his wife, the herein petitioner JuanaJuan Vda. de Molo, and by his nieces and nephew, theoppositors-appellants, Luz, Gliceria and Cornelio, allsurnamed Molo, who were the legitimate children of CandidoMolo y Legaspi, deceased brother of the testator. MarianoMolo y Legaspi left two wills, one executed on August 17,1918, (Exhibit A) and another executed on June 20, 1939,(Exhibit I). The latter will contains a clause which expresslyrevokes the will executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo led in theCourt of First Instance of Rizal a petition, which wasdocketed as special proceeding No. 8022, seeking the p robateof the will executed by the deceased on June 20, 1939.

There being no opposition, the will was probated. However,upon petition led by the herein oppositors, the order of t he


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court admitting the w ill to probate was set aside and the casewas reopened. After hearing, at which both parties presentedtheir evidence, the court rendered decision denying theprobate of sai d will on the ground that t he petitioner failed toprove that the same was executed in accordance with law.

In view of the disallowance of the will executed on June20, 1939, the widow on February 24, 1944, led anotherpetition f or the probate of the will executed by the deceasedon August 17, 1918, which was docketed as special proceedingNo. 56, in the same court. Again, the same oppositors led anopposition to the petition based on three grounds: (1) thatpetitioner is now estopped from seeking the probate of thewill of 1918; (2) that said will has not been executed in the

manner required by law and (3) that the will has beensubsequently revoked. But before the second petition could beheard, the battle for liberation came and the records of thecase were destroyed. Consequently, a petition forreconstitution was led, but the same was found to beimpossible because neither petitioner nor oppositors couldproduce the copies required for its reconstitution. As a resu lt,petitioner led a new petition on September 14, 1946, similar

to the one destroyed, to which the oppositors led anopposition based on the same grounds as those contained intheir former opposition. Then, the case was set for trial, andon May 28, 1948, the court issued an order admitting the w illto probate as already stated in the early part of this decision.From this order t he oppositors appealed assigning six errors,to wit:

1."I.The probate court err ed in not holding that the present

petitioner voluntarily and deliberately frustrated the

probate of the will dated June 20, 1939, in specialproceeding No, 8022, in order to en able her to obtain theprobate of another alleged will of Molo dated 1918.

2."II.The court a qu o erred in not holding that the petitioneris now estopped from seeking the p robate of Molo's allegedwill of 1918.

1."III.The lower court erred in not holding that petitionerherein has come to court with 'unclean hands' and as suchis not en titled to re lief.

2."IV.The probate court erred in not holding that Molo'salleged will of August 17, 1918 was not executed in themanner required by law.

3."V.The probate court err ed in not holding that the allegedwill of 1918 was deliberately revoked by Molo himself.

4."VI.The lower court err ed in not holding that Molo's will of1918 was subsequently revoked by the decedent's will of1939."

In their rst assignment of error, counsel for oppositorscontend that the probate court erred in not holding that thepetitioner voluntarily and deliberately frustrated the probateof the will dated June 20, 1939, in order to enable her toobtain the probate of the will executed by the deceased on

August 17, 1918, pointing out certain facts and circumstanceswhich in their opinion indicate that petitioner connived withwitness Canuto Perez in an effort to defeat and frustrate theprobate of the 1939 will because of her knowledge that saidwill was intrinsically defective in that "the one and onlytestamentary disposition thereof was a 'disposicincaptatoria' ". These circumstances, counsel for the appellants


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contend, constitute a series of steps deliberately taken bypetitioner with a view to insuring the realization of her planof securing the probate of the 1918 will which she believedwould better safeguard her right to inherit from thedeceased.

These imputations of fraud and bad faith allegedlycommitted in connection with special proceedings No. 8022,now closed and terminated, are vigorously met by counsel forpetitioner who contends that to raise them in theseproceedings which are entirely new and distinct andcompletely independent from the other is improper andunfair as t hey nd no support whatsoever in any evidencesubmitted by the parties in this case. They are merely based

on presumptions and conjectures not s upported by any proof.For this reason, counsel contends, the lower court was justied in disregarding them and in passing them sub silentio in its d ecision.

A careful examination of the evidence available in thiseems to j ustify this contention. There is indeed no evidencewhich may justify the insinuation that petitioner had

deliberately intended to frustrate t he probate of the 1939 willof the deceased to enable her to seek the probate of anotherwill other than a mere conjecture drawn from the apparentlyunexpected testimony of Canuto Perez that he w ent out o f theroom to answer an urgent call of nature when Artemio Reyeswas signing the will and the failure of petitioner later toimpeach the character of said witness in spite of theopportunity given her by the court t o do so. Apart from this

insufficiency of evidence, the record discloses th at this failure

has been explained by petitioner when she informed the courtthat she was unable to impeach the character of her witnessCanuto Perez because of her i nability to nd witnesses whomay impeach him, and this explanation standsuncontradicted. Whether this explanation is satisfactory ornot, it is not now for us to d etermine. It is an incident thatcomes within the province of t he former case. The failure ofpetitioner to present the testimony of Artemio Reyes at therehearing has also been explained, and it appears thatpetitioner has failed because his whereabouts could not befound. Whether this is true or n ot is not also for this Court todetermine. It is likewise within the province and function ofthe court in the former case. And the unfairness of this

imputation becomes more glaring when we take stock of thedevelopments that had taken place in these proceedingswhich show in bold relief the true nature of the conduct,behavior and character of the petitioner so bitterly assailedand held in disrepute by the oppositors.

It should be recalled that the rst petition f or the probateof the will executed on June 20, 1939, was led on February7, 1941, by the petitioner. There being no opposition, the will

was probated. Subsequently, however, upon petition of theherein oppositors, the order of t he court admitting said willto probate was set aside, over t he vigorous opposition of theherein petitioner, and the case was reopened. The reopeningwas ordered because of the strong opposition of the oppositorswho contended that the will had not been executed asrequired by law. After the evidence of both parties had beenpresented, the oppositors led an extensive memorandum

wherein they reiterated their view that the will should be


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denied probate. And on the strength of this opposition, thecourt disallowed the will.

If petitioner then knew that the 1939 will was inherentlydefective and would make the testamentary disposition inher favor invalid and ineffective, because it is a "disposicincaptatoria", which knowledge she may easily acquire throughconsultation with a lawyer, there was no need for her to gothrough the ordeal of ling the petition for the probate of t hewill. She could accomplish her desire by merely suppressingthe will or t earing or destroying it, and then take stepsleading to the probate of the will executed in 1918. But herconscience was clear and bade her to t ake the only properstep possible under the circumstances, which is to i nstitute

the necessary proceedings for the probate of the 1939 will.This she d id and the will was admitted to probate. But thenthe unexpected happened. Over her vigorous opposition, theherein appellants led a petition for reopening, and over hervigorous objection, the same was granted and the case wasreopened. Her motion for reconsideration was denied. Is ither fault that the case was reopened? Is i t her f ault that theorder admitting the will to probate was set aside? That was a

contingency which petitioner never expected. Had appellantsnot led their opposition to the probate of the will and hadthey limited their objection to th e intrinsic validity of saidwill, their plan to defeat the will and secure the intestacy ofthe deceased would have perhaps been accomplished. Butthey failed in their st rategy. If said will was denied probate itis due to t heir own effort. It is now unfair to impute bad faithto petitioner simply because she exerted every effort to

protect her own interest and prevent the intestacy of thedeceased to happen.

Having reached the foregoing conclusions, it is obviousthat the court did not commit the second and third errorsimputed to it by th e counsel for appellants. Indeed, petitionercannot be considered guilty of estoppel which would preventher from seeking the probate of the 1918 will simply becauseher effort to obtain the allowance of the 1939 will has failedconsidering that in both the 1918 and 1939 wills she wasinstituted by her husband as his universal heir. Nor can shebe charged with bad faith far having done so because of herdesire to prevent the intestacy of her husband. She cannot beblamed for being zealous in protecting her interest.

The next contention of appellants refers to the revocatoryclause contained in the 1939 will of the deceased which wasdenied probate. They contend that, notwithstanding thedisallowance of said will, the revocatory clause is valid andstill has the effect of nullifying the prior will of 1918. Counselfor petitioner meets this argument by i nvoking the doctrinelaid down in the case of Samson vs. Naval, (41 Phil., 838). Hecontends tha t the facts involved in that case a re on all fours

with the facts of this case. Hence, the doctrine in that case ishere controlling.There is merit in this contention. We have carefully read

the facts involved in the Samson case and we are indeedimpressed by their striking similarity with the facts of thiscase. We do not need to recite here what those facts are; it isenough to point out that they contain many points andcircumstances in common. No reason, therefore, is seen why


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will or codicil, even though the latter contains a clause expresslyrevoking the former will, in a jurisdiction where it is provided by acontrolling statute that no writing other than a testamentaryinstrument is sufficient to revoke a will, for the simple reason thatthere is no revoking will. Similarly where the stat ute provides thata will may be revoked by a subsequent will or other writing

executed with the same formalities as are requ ired in the executionof wills, a defectively executed will does not revoke a prior will,since it cannot be said that there is a writing which complies withthe statute. Moreover, a will or codi cil which, on account of t hemanner in which it is executed, is sufficient to pass only personallydoes not affect dispositions of real estate made by a former will,even though it may expressly purport to do so. The intent of thetestator to revoke is immaterial, if he has not complied with thestatute." (57 Am. Jur., 328, 329.)We nd the same opinion in the American Law Reports,

Annotated, edited in 1939. On page 1400, Volume 123, thereappear many authorities on the "application of rules wheresecond will is invalid", among which a typical one is thefollowing:"It is universally agreed that where the second will is invalid onaccount of not being executed in accordance with the provisions ofthe statute, or where the testator has not sufficient mentalcapacity to make a will or the will is procured through undueinuence, or the such, in other words, where the second will isreally no will, it does not revoke the rst will or aff ect it in anymanner." Mort vs. Baker University (1935) 229 Mo. App., 632, 78S. W. (2d), 498."These treaties cannot be mistaken. They uphold the view onwhich the ruling in the Samson case is predicated. Theyreect the opinion that this ruling is sound and good and for

this reason we see no justication for abandoning it as n owsuggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code ofCivil Procedure) provides that a will may be revoked "by somewill, codicil, or other writing executed as provided in case ofwills"; but it cannot be said that the 1939 will should beregarded, not as a will within the meaning of said word, butas "other writing executed as provided in the case of w ills",simply because it was denied probate. And even if it beregarded as any other writing within the meaning of saidclause, there is authority for holding that u nless sa id writingis admitted to probate, it cannot have the effect of revocation.(See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contend that, regardless of s aidrevocatory clause, said will of 1918 cannot st ill be given effectbecause of the presumption that it was deliberately revokedby the testator himself. The oppositors contend that thetestator, after executing the 1939 will, and with fullknowledge of the revocatory clause contained in said will,himself deliberately destroyed the original of the 1918 will,and that for this reason the will submitted by petitioner for

probate in these proceedings is only a duplicate of saidoriginal.There is no evidence which may directly indicate that the

testator deliberately destroyed the original of the 1918 willbecause of his knowledge of t he revocatory clause containedin the will he executed in 1939. The only evidence we have isthat when the rst will was executed in 1918, Juan Salcedo,who prepared it, gave the original and copies to the testator

himself and apparently they remained in his possession until


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he executed his second will in 1939. And when the 1939 willwas denied probate on November 29, 1943, and petitionerwas asked by her attorney to look for another will, she foundthe duplicate copy (Exhibit A) among the papers or les ofthe test ator. She did not nd the original.

If it can be inferred that the testator deliberatelydestroyed the 1918 will because of his knowledge of therevocatory clause of the 1939 will, and it is true that he gavea duplicate copy thereof t o his wife, the herein petitioner, themost logical step for the testator to take is to recall saidduplicate copy in order that it may likewise be destroyed. Butthis was not done as shown by the fact that said duplicatecopy remained in the possession of petitioner. It is possible

that because of t he long lapse of t wenty-one (21) years sincethe rst will was executed, the original of the will had beenmisplaced or lost, and forgetting that there was a copy, thetestator deemed it wise to execute another will containingexactly the same testamentary dispositions. Whatever maybe the conclusion we may draw from this chain ofcircumstances, the stubborn fact is that there is no directevidence of voluntary or deliberate destruction of the rst

will by the testator. This matter cannot be left to mereinference or con jecture.Granting for the sake of argument that the earlier will

was voluntarily destroyed by the testator aft er the executionof the second will, which revoked the rst, could there be anydoubt, under this theory, that sai d earlier will was destroyedby the testator in the honest belief that it was no longernecessary because he had expressly revoked it in his will of

1939? In other words, can we not say that the destruction of

the earlier will was but the necessary consequence of thetestator's belief that th e revocatory clause contained in thesubsequent will was valid and the latter would be giveneffect? If such is the case, then it is our opinion that theearlier will can still be admitted to probate under theprinciple of "dependent relative revocation".

"This doctrine is known as that of dependent relative revocation,and is usually applied where the testator cancels or destr oys a willor executes an instrument intended to revoke a will with a presentintention to make a new testamentary disposition as a substitutefor the old, and the new disposition is not made or, if made, fails ofeffect for some reason. The doctrine is not limited to the existenceof some other document, however, and has been applied where a

will was destroyed as a consequence of a mistake of l aw * * *." (68C. J. p. 799).

"The rule is established that where the act of dest ruction isconnected with the making of an other will so as fairly to rai se theinference that the testator meant the revocation of the old todepend upon the efficacy of the new disposition intended to besubstituted, the revocation will be conditional and dependent uponthe efficacy of t he new disposition; and if, for any reason, the newwill intended to be made as a substitute is inoperative, therevocation fails and the original will remains in full force."(Gardner, pp. 232, 233.)

"This is the doctrine of dependent relative revocation. Thefailure of the new testamentary disposition, upon whose validitythe revocation depends, is equivalent to the non-fulllment of asuspensive condition, and hence prevents the revocation of theoriginal will. But a mere intent to make at some time a will inplace of that destroyed will not render the destruction conditional.


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It must appear that t he revocation is dependent upon the validexecution of a new will." (1 Alexander, p. 751; Gardner, p. 233.)We hold, therefore, that even in the supposition that thedestruction of the original will by the testator could bepresumed from the failure of t he petitioner to p roduce it incourt, such destruction cannot have the effect of defeating theprior will of 1918 because of the fact that it is founded on themistaken belief that the will of 1939 has been validlyexecuted and would be given due effect. The theory on whichthis principle is predicated is tha t t he test ator did not intendto die intestate. And this intention is clearly manifest whenhe executed two wills on. two different occasions andinstituted his wife as his universal h eir. There can thereforebe no mistake as to hi s intention of dying testate.

The remaining question to be determined refers to t hesufficiency of the evidence to prove the due execution of thewill.

The will in question was attested, as required by law, bythree witnesses, Lorenzo Morales, Runo Enriquez, and

Angel Cuenca. The rst two witnesses died before thecommencement of the present proceedings. So the onlyinstrumental witness available was Angel Cuenca and underour law and precedents, his testimony is sufficient to provethe due execution of the will. However, petitioner presentednot only the testimony of Cuenca but placed on the witnessstand Juan Salcedo, the notary public who prepared andnotarized the will upon the express desire and instruction ofthe testator. The testimony of these witnesses shows that the

will had been executed in the manner required by law. We

have read their testimony and we were impressed by theirreadiness and sincerity. We are convinced that they told thetruth.

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

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

Reyes, J., concurs in the result.Order affirmed.


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[No. 35993. December 19, 1932] In re Estate of the deceased Gregorio Tolentino.A DELAIDA

TOLENTINO , petitioner and appellee, vs. N ATALIA F RAN -CISCO ET AL ., oppositors and appellants.

WILLS ; P ROBATE G RANTED WHERE TWO A TTESTING W ITNESSESDENY P ROPER E XECUTION OF W ILL .When a will iscontested it is the duty of the proponent to call all of theattesting witnesses, if available, but the validity of thewill in no wise depends upon the united support of the willby all of those witnesses. A will may be admitted toprobate notwithstanding the fact that one or more of t hesubscribing witnesses do not unite with the other, orothers, in proving all the facts upon which the validity ofthe will rests. It is sufficient if the court i s satised fromall the proof that the will was executed and attested in themanner required by law.

APPEAL from an order of the Court of First Instance ofManila. Imperial, J.The facts are st ated in the opinion of the court.

Laurel, Del Rosario & Lualhati for appellants. Eduardo Gutierrez Repide for a ppellee.

STREET , J.:

This petition was led in the Court of First Instance ofManila by Adelaida Tolentino de Concepcion, for the purposeof procuring probate of the will of Gregorio Tolentino,deceased, who died at the hand of an assassin, in his home,

No. 2541 Lico Street, in the District of Santa Cruz, Manila,on November 9, 1930. In the inception of the proceedingsEugene de Mitkiewicz was appointed special coadministrator,and he joined as coplaintiff in the petition. Opposition wasmade to t he probate of the will by Ciriaco Francisco, NataliaFrancisco, and Gervasia Francisco, all cousins of thedeceased and residents of the City of Manila. Upon hearingthe cause the trial court overru led the opposition, declaredthe will to have been properly executed, and allowed theprobate thereof. From this order the three opponentsappealed. chanroblesvirtualawlibrary chanrobles virtual lawlibrary

At the time of his death on November 9, 1930, GregorioTolentino was sixty-six years of age. During the morevigorous years of his life he had been married to BenitaFrancisco, but she predeceased him years ago. By theirindustry and frugality the two had accumulated a veryconsiderable estate which does not appear to have sufferedany material diminution in the years of Tolentino'swidowhood. The pair had no children, and the generousinstincts of the survivor prompted him to gather around himin his comfortable and commodious home a number of hiswife's kin; and by him various younger members of theconnection were supported and educated. At one timeTolentino contemplated leaving his property m ainly to t hesekin of his wife, of the surname Francisco; and for severalyears prior to h is death, he had kept a will indicating thisdesire. However, in October, 1930, strained relations,resulting from grave disagreements, developed between


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two intending witnesses to meet at ve o'clock in theafternoon of the next day, which was October 22, for thepurpose of executing the will.

Pursuant to these instructions Repide made the desiredchanges in the will; and just before twelve o'clock noon of thenext day Tolentino returned to Repide's office and receivedfrom him the criminal document with a carbon copy thereof.Repide advised the test ator that the copy should be executedwith the same formality as the original in order that theintention of the testator should not be frustrated by thepossible loss or d estruction of the original.

It is a custom in the office of Repide not to number theconsecutive pages of a will, on the typewriting machine, theduty of numbering the pages being left to the testatorhimself. This precaution appears to have been born ofexperience, and has been adopted by Repide to prevent thepossible destruction of a will by the mere erasure of thegures or letters indicating the pagination, - a disasterwhich, in Repide's experience, had occurred in at least onecase. Accordingly, upon delivering the completed will andcarbon copy to the testator, Repide took particular pains toinstruct the testator t o write the consecutive paging of bothoriginal and duplicate before signing the instrument.

At his interview the testator suggested to Repide that latter should also go to the place where the will was to beexecuted, so that he might be p resent at t he formality. Theattorney replied that it was impossible for him to do so a s he

had another engagement for the hour indicated, which wouldprevent his attendance.

At about 4:30 p. m. on the same day, which was October 22,Tolentino started in his car t o pick up Syyap and Vergel deDios at t heir respective homes on Antipolo and Benavidesstreets. He then caused his chauffeur to drive with the threeto La Previsora Filipina, on Rizal Avenue, where VicenteLegarda, the third intending witness was to be found.

Arriving at this place, the three entered the office of Legarda,who was manager of the establishment, and they wereinvited to take seats, which they did. Tolentino thensuggested that the three should go as his guests toa panciteria , where they could take refreshments and the willcould be executed. Legarda replied that he must decline theinvitation for he had an engagement to go to the CosmosClub the same afternoon. Upon this Tolentino asked Legardato permit the will to be signed in his office, and to thisrequest Legarda acceded.

Tolentino thereupon drew two documents from his pocketsaving that it was his last will and testament, done induplicate, and he proceeded to read the original to thewitnesses. After this had been completed, Legarda himselftook the will in hand and read it himself. He then returned itto Tolentino, who thereupon proceeded, with pen and ink, tonumber the pages of the will thus, "Pagina Primera", "PaginaSegunda", etc. He then paged the duplicate copy of the will inthe same way. He next proceeded to sign the original will andeach of its pages by writing his name "G. Tolentino" in theproper places. Following this, each of the three witnesses


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signed their own respective names at t he end of the will, atthe end of the attesting clause, and in the left margin of eachpage of the instrument. During this ceremony all of thepersons concerned in the act of attestation were presenttogether, and all fully advertent to the solemnity thatengaged their att ention.

After the original of the will had been executed in themanner just stated, the testator expressed his desire that theduplicate should be executed in the same manner. To thisSyyap objected, on the ground that it was unnecessary; andin this view he was supported by Vergel de Dios, with theresult that the wishes of the testator on this point could notbe carried out. As the party was about to break up Tolentinoused these words: "For God's sake, as a favor, I request younot to let any one know the contents of this will." Themeeting then broke up and Tolentino returned Syyap and

Vergel de Dios to their homes in his the law office of Repide, arriving about 6:15 p. m. Afterpreliminary explanations had been made, Tolentinorequested Repide to keep the will overnight in his safe, as itwas already too late to place it in the compartment whichTolentino was then renting in the Oriental Safe Deposit, inthe Kneedler Building. In this connection the testator st atedthat he did not wish to take the will to his home, as he knewthat his relatives were watching him and would takeadvantage of any carelessness on his part to pry into hispapers. Also, in this conversation Tolentino informed Repideof the refusal of Syyap to execute the duplicate of the will.

After a good p art of an hour had thus been spent at Repide'soffice by the testator and after the original of the will hadbeen deposited in Repide's safe, Tolentino took the attorneyto the latter's residence in Ermita, and then returned to hisown home, where he remained without again going out thatnight. But promptly at nine o'clock the next morningTolentino presented himself at Repide's office for the purposeof securing the w ill. Repide happened to be out and Tolentinowent away, but again returned the next day and received thewill. With the instrument thus in his possession he proceededat once to the Oriental Safe Deposit and there left theinstrument in his private compartment, No. 333, in whichplace it remained until withdrawn some two weeks later byorder of t he court.

On the morning of November 9, 1930, Gregorio Tolentinowas found dead in his bed, having perished by the hands ofan assassin.

The peculiarity of this case is that, upon the trial of t hisproceeding for the probate of t he will of the decedent, two ofthe attesting witnesses, Jose Syyap and Vergel de Dios,repudiated their participation in the execution of the will atthe time and place stated; and while admitting thegenuineness of t heir signatures to the will, pretended thatthey had severally signed the instrument, at the request ofthe testator, at different places. Thus Syyap, testifying as awitness, claimed that the testator brou ght the will to Syyap'shouse on the afternoon of October 21 - a time, be itremembered, when the will had not yet left the hands of thedraftsman - and upon learning that Syyap could not be


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present at t he time and place then being arranged for theexecution of the will, he requested Syyap, as a m ere matter ofcomplaisance, to sign the will then, which Syyap did. Vergelde Dios has another stor y to tell of isolated action, claimingthat he signed the will in the evening of October 22 at theHospital of San Juan de Dios in Intramuros.

We are u nable to give any credence to the testimony of thesetwo witnesses on this point, the same being an evidentfabrication designed for the purpose of defeating the will. Inthe rst place, the affirmative proof showing that the will wasproperly executed is adequate, consistent, and convincing,consisting of the testimony of the third attesting witness,

Vicente Legarda, corroborated by Miguel Legarda andUrbana Rivera, two disinterested individuals, employees ofLa Previsora Filipina, who were present in Legarda's officewhen the will was executed and who lent a discerningattention to what was being done. In the second place, eachof the seven signatures affixed to his will by Syyap appear tothe natural eye to have been made by using the same pen andink that was used by Legarda in signing the will. The same isalso probably true of the seven signatures made by Vergel deDios. This could hardly have happened if the signatures ofSyyap and Vergel de Dios had been affixed, as they nowpretend, at different times and places. In the third place,Both Syyap and Vergel de Dios are impeached by proof ofcontradictory statements made by them on differentoccasions prior to their appearance as w itnesses in this case.In this connection we note that, after the murder of GregorioTolentino, and while the police authorities were investigating

his death, Nemesio Alferez, a detective, sent for Syyap andquestioned him concerning his relations with the deceased.Upon this occasion Syyap stated that Gregorio Tolentino hadlately made a will, that it had been executed at the office ofLa Previsora Filipina under the circumstances alreadystated, and that he himself had served as one of the attestingwitnesses.

With respect to Vergel de Dios we have the f ollowing fact: Onthe day that G regorio Tolentino was buried, Ramon Llorente,a member of the city police force, was sent out to thecemetery in order that he m ight be present and observe thedemeanor on that oc casion of such Tolentino's kin as mightbe present. Llorente arrived before the funeral cortege,having been taken out to the cemetery by Repide. While thetwo were waiting at the cemetery, Llorente noted thepresence of Vergel de Dios, he requested the policeman tointroduce him. In the conversation that ensued Vergel deDios stated with considerable detail that Gregorio Tolentinohad made a will just before his death, that it was executed atLa Previsora Filipina, and that he was one of the witnesseswho attested the i nstrument at that time and place.

Again, on a certain occasion subsequent to the death ofGregorio Tolentino, Juan Concepcion the husband of

Adelaida Tolentino, accompanied by Genoveva de Mendoza,called upon Vergel de Dios, and in the conversation thatresulted Vergel de Dios told them that the will was properlyexecuted, that he was one of the attesting witnesses, and thatit had been signed by all of them in the office of La PrevisoraFilipina.


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These circumstances and other incidents revealed in theproof leave no room for doubt in our mind that Syyap and

Vergel de Dios have entered into a conspiracy betweenthemselves, and in concert with the opponents, to defeat thewill of Gregorio Tolentino although they are well aware thatsaid will was in all respects properly executed; and the trialcourt, in our opinion, committed no error in admitting thewill to probate.

When a will is contested it is the duty of the proponent to callall of the attesting witnesses, if available but t he validity ofthe will in no wise depends upon the united support of thewill by all of those witnesses. A will may be admitted toprobate notwithstanding the fact that one or more of thesubscribing witnesses do not unite with the other, or others,in proving all the facts upon which the validity of the willrests. (Fernandez vs. Tantoco, 49 Phil., 380.) It is sufficient ifthe court is satised from all the proof that the will wasexecuted and attested in the manner required by law. In thiscase we feel well assured tha t the contested will was properlyexecuted and the order admitting to it probate w as entirelyproper.

The order appealed from will therefore be affirmed, withcosts against the appellants. So ordered.


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ATILANO G. MERCADO, petitioner, vs. ALFONSOSANTOS, Judge of First Instance of Pampanga, andIIGO S. DAZA, Provincial Fiscal of Pampanga,respondents. ROSARIO BASA DE LEON ET AL.,

intervenors.1.1.WlLLS;CONCLUSIVENESS OF THE DUE EXECUTION

OF A PROBATED WILL.Section 625 of the Code of CivilProcedure is explicit as to the conclusiveness of t he dueexecution of a probated will. It provides: "No will shallpass either the real or pe rsonal est ate, unless it is provedand allowed in the Court of First Instance, or by a ppeal tothe Supreme Court; and the allowance by the court of a

will of real and personal est ate sh all be conclusive as to itsdue execution."

1.2.ID.; ID.The probate of a will by the probate courthaving jurisdiction thereof is considered as conclusive as toits due exeeution and validity, and is also conclusive thatthe testator was of s ound and disposing mind at the timewhen he executed the will, and was not acting underduress, menace, fraud, or undue inuence, and that the

will is genuine and not a f orgery.

1.3.ID.; ID.; PROCEEDING "IN REM".The probate of a willin this j urisdiction is a proceeding in rem. The provision ofnotice by publication as a prerequisite t o the allowance of awill is constructive notice to the whole world, and whenprobate is granted, the judgment of t he court is bindingupon everybody, even against the State.

1.4.ID.; ID.; CONCLUSIVE PRESUMPTTON.Conclusivepresumptions are inferences which the law makes soperemptory that i t will not allow them to be overturned byany contrary proof however strong. The will in questionhaving been probated by a competent court the law -willnot admit any proof to overthrow the legal presumption

that it is genuine and not a forgery.

1.5.ID.; ID.; CRIMINAL ACTION AGAINST FORGER OF ADULY PROBATED WILL.Upon the facts stated in theopinion of the court, it was held: That in view of theprovisions of sections 306, 333 and 625 of t he Code of CivilProcedure, criminal acti on will not lie in this j urisdictionagainst the forger of a will which had been duly admittedto probate by a court of competent Ju risdiction.

1.6.CRIMINAL LAW;PROSECUTION OFOFFENSES; RIGHT TO A SPEEDY TRIAL.Theprosecution of offenses is a m atter of public interest and itis the duty of t he government or t hose acting in its behalfto prosecute all cases to their termination withoutoppressive, capricious and vexatious delay. TheConstitution does not say that the right to a speedy trialmay be availed of only where the prosecution for crime iscommenced and undertaken by the scal. It does notexclude from its operation cases com-menced by privateindividuals. Where once a person is prose-cuted criminally,he is entitled to a speedy trial, irrespective of the Natureof the offense or t he manner in which it is authorized to becommenced. In any event, even the actuations of the scalhimself to t his case is not en tirely free f rom criticism.


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1.7.ID.; ID.; ID.In Kalaw vs. Apostol (G. R. No. 45591, Oct.15, 1937), the Supreme Court observed that theprosecuting officer is in charge and has under the directionand control all prosecutions for public offenses (secs. 1681and 2465 of t he Rev. Adm. Code), and that it is his duty tosee that criminal cases are beard without vexatious,

capricious and oppressive delays so that the courts of justice may dispose of them on the merits and determinewhether the accused is guilty or not. This is as clear anadmonition as could be made. An accused person isentitled to a trial at -the earliest op portunity. (Sutherlandon the Constitution, 664; United States vs. Fox, 3 Mont.,512.) He cannot be oppressed by delaying thecommencement of trial for an unreasonable length of time.If the proceedings pending trial are deferred, the trialitself is necessarily delayed.

1.8.ID.; ID.; ID.it is not to be supposed, of course, that theConstitution intends to r emove from the prosecution everyreasonable opportunity to prepare for trial. Impossibilitiescannot be expected or extr aordinary efforts required on thepart of the prosecutor or the court. As stated by theSupreme Court of the United States, "The right of aspeedy trial is necessarily relative. It i s consistent withdelays and depends upon circumstances. It secures rightsto a defendant. It does not preclude the rights of pu blic

justice." (beavers vs. Haubert [1905], 198 U. S., 86; 25 S.Ct, 573; 49 Law. ed. , 950, 954.)

PETITION f or review on. certiorari.The facts are st ated in the opinion of the court.

Claro M . Recto and Benigno S. Aquino for petitioner.

Esperanza de la Cruz and Heracuo Abistado forrespondents.

Sotto & Sotto for intervenors.

LAUREL, J.:

On May 28, 1931, the petitioner herein led in the Court ofFirst i nstance of Pampanga a petition for the probate of thewill of his deceased wife, mes Basa. v without any opposition,and upon the testimony of Benigno F. Gabino, one 01 theattesting witnesses, the probate court, on June 27, 1931,admitted the will to probate. Almost three years later, on

April 11, 1934 the ve intervenors herein moved ex parteto reopen the proceedings, alleging lack of jurisdiction 01 the

court to probate the will and to close the proceedings.Because led ex parte, the motion was denied. The samemotion was led a second time, but with notice to the adverseparty. The motion was nevertheless denied by the probatecourt on May 24, 1934. On appeal to this court, the order ofdenial was affirmed on July 26, 1935, (Basa vs. Mercado, 33Off. Gaz., 2521.)

It appears that on October 27, 1932, i. e ., sixteen months

after the probate of t he will of Ines Basa, intervenor RosarioBasa de Leon led with the justice of the peace court of Sanfernando, Pampanga, a complaint against the petitionerherein, or falsication or forgery of the will probated us aboveindicated. The petitioner was arrested. He put up a bond inthe sum of P4,000 and engaged the services of an attorney toundertake his defense. Preliminary investigation of the casewas continued twice upon petition of the complainant. The

complaint was nally dismissed, at the instance of the


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complainant herself, in an order dated December 1932. 1932.Three months later, or on March 2, 1933, the sameintervenor charged the petitioner for the second time withthe same offense, presenting the complaint this time in the

justice of the peace court of Mexico, Pampanga. Thepetitioner was again arrested, again put up a bond in thesum of P4,000, and engaged the services of counsel to defendhim. This second complaint, after investigation, was alsodismissed, again at the instance of t he complainant herselfwho alleged that the petitioner was in poor health. That wason April 27, 1933. Some nine months later, on February2,1934, to be exact, the same intervenor accused the samepetitioner for the third time of the same offense. Theinformation was led by the provincial scal of Pampanga inthe justice of t he peace court of Mexico. The petitioner wasagain arrested, again put up a bond of P4,000, and engagedthe services of defense counsel. The case was disimssed on

April 24, 1934, after due investigation, d the will alleged to have been falsied had already beenprobated and there was no evidence that the petitioner hadforged the signature of the testatrix appearing thereon, but

that on the contrary, the evidence satisfactorily establishedthe authenticity of the signature aforesaid. Dissatised withthe result, the provincial scal, on May 9, 1934, moved is theCourt of of rst Instance of Pampanga for reinvestigation ofthe case. The motion was granted on May 23, 1934, and, forthe fourth time, the petitioner was arrested, led a bond andengaged the services of counsel to handle his defense thereinvestigation dragged on for almost a year until February

18, 1934, when the Court of First Instance ordered that the

case be tried On the merits. The petitioner interposed ademurrer on November 25, 1935, on the ground that the willalleged to have been forged had already been probated. Thisdemurrer was overruled on December 24; 1935, whereuponan exception was taken and a motion for reconsideration andnotice of appeal were led. The motion for reconsiderationand the proposed appeal were denied on January 14, 1936.The case proceeded to trial, and forthwith petitioner movedto dismiss the case claiming again that the will alleged tohave been forged had already been probated and, further,that the order probating the will is conclusive as to theauthenticity and due execution thereof. The motion wasoverruled and the p etitioner led with the Court of Appeals apetition for certiorari with preliminary injunction to enjointhe trial court from further proceedings in the matter. Theinjunction was issued and thereafter, on June 19, 1937, theCourt of A ppeals denied the petition f or certiorari, anddissolved the writ of preliminary injunction. Three justicesdissented in a separate opinion. The case i s now before thiscourt f or review on certiorari.

Petitioner contends: (1) that t he probate of the will of his

deceased wife is a bar to his criminal prosecution for thealleged forgery of the said will; and, (2) that he has beendenied the constitutional right to a sp eedy tri al.

1. Section 306 of our Code of Civil Procedure provides as tothe effect of judgments:"SEC. 306. Effect of judgment.The effect of a judgment or nalorder in an action or special proceeding before a court or j udge ofthe Philippine Islands or of the United States, or of any State orTerritory of the United States, having jurisdiction to pronounce the

judgment or order, may be as follows:


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"1. In case of a judgment or or

unson - viado non

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