cases on wills

7/27/2019 Cases on Wills

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IN RE PROBATE OF THE WILL OF GABINA RAQUEL, deceased, AUREA MATIAS, Petitioner-Appellant, -

versus BASILIA SALUD, Oppositor-Appellee. G. R. NO. L-10751 , June 23, 1958

Appeal from an order of the Court of First Instance of Cavite (issued in its Special Proceedings No. 5253 on

February 10, 1956) denying probate of the purported will of the late Gabina Raquel.

Admittedly the deceased left no ascendants or descendants, and according to the proponents she

executed the testamentary document on January 27, 1950, in the City of Cavite, in the presence ofModesta Gonzales, Felipa Samala and Lourdes Samonte, who signed as instrumental witnesses, and of

attorney Ricardo Agbunag, who prepared the instrument.

The document in question appears to be composed of three pages. On the lower half of the second page,

preceding the attestation clause, appears the signature Gabina Raquel which is apparently of admitted

authenticity. Alongside it is a smudge in violet ink, with blurred ridge lines, claimed by the proponents to

be a thumbmark affixed by the testatrix. On the third page, at the end of the attestation clause appear the

signatures appearing on the left margin of each page; and on the upper part of each pages left margin

appears a violet ink smudge similar to the one previously described, accompanied by the written words

Gabina Raquel and underneath said name by Lourdes Samonte.

In the purported testament, most of the properties of the testatrix (appraised at over P160,000.00) are

bequeathed to her niece Aurea Matias, in recompense for the services rendered to me for more than 30

years; some legacies are made to her other nephews and nieces surnamed Salud and Matias; Aurea

Matias is appointed executrix without bond. Below the signature Gabina Raquel set at the foot of the will

proper, is an attestation clause in the Spanish language (like the will itself) and reading as follows:

The testamentary capacity of the testatrix Gabina Raquel despite her ninety years of age and her disease

(herpes zoster), is conceded. It is also undisputed that she mastered Spanish (the language in which the

document is drawn) and that she could sign her name.

The proponents evidence is to the effect that the deceased instructed attorney Agbunag to draft her will;

that it was brought to her in the morning of January 27, 1950; that she had the witnesses summoned and

received them in the ante sala of her house; that when the witnesses were seated around a table with

her and attorney Agbunag, the will was read by the latter; that Gabina Raquel manifested conformity

thereto and thumbmarked the foot of the document and the left margin of each page. Allegedly upon

Agbunags insistence, she attempted to sign with his fountain pen, but was only able to affix the signature

at the end of the testamentary dispositions (in the lower half of page two) because immediately after, she

dropped the pen, grasping her right shoulder and complaining of pain. After 20 minutes, attorneyAgbunag, seeing that Gabina Raquel could not proceed, instructed Lourdes Samonte to write Gabina

Raquel by Lourdes Samonte next to each thumbmark, and thereafter witnesses Lourdes Samonte, Felipa

Samala and Modesta Gonzalez signed, in that order, at the foot of the attestation clause and at the left

margin of each page. It is to be noted that witness Modesta Gonzalez, a 64-year old woman did not

testify, as she was found to be suffering from high blood pressure, and proponents expert evidence was to

the effect that her memory was impaired, and unusual excitement might cost her life.


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The probate having been opposed by Basilia Salud, a niece of Gabina Raquel, the case was set for trial.

After hearing, Judge Primitivo Gonzales of the Court of First Instance of Cavite rendered judgment

upholding the contentions of the oppositor and denied the documents admission to probate, principally

on the following grounds:

(1) That the attestation clause did not state that the testatrix and the witnesses signed each and every

page of the will; and while the left margins of each page exhibit the words Gabina Raquel by Lourdes

Samonte, the attestation does not express that Lourdes was expressly directed to sign for the testatrix;

(2) That the proponent did not adequately explain the non- production of witness Modesta Gonzalez,

contrary to sec. 11, Rule 77 of the Rules of Court;

(3) That the alleged signing and thumbmarking by the deceased was not done in the presence of the

witnesses, nor did the latter sign in the presence of Gabina Raquel;

(4) That fraud and bad faith attended the execution of the will.

From the adverse decision of the trial court, the proponent appealed directly to this Court, because the

value of the properties involved in the litigation exceeded P50,000.00.

The trial court refused credence to the evidence for the proponents on the basis of the expert testimony

of Captain Jos Fernandez of the Philippine Constabularys Criminal Laboratory, to the effect that (1) the

fingerprints appearing at the end and left margins of the will were impressed over the name of the

testatrix, and after the name was written, contrary to what the proponents witnesses asserted; (2) that

the words Gabina Raquel by Lourdes Samonte on the upper left hand margin of page two of the will

were falsified and appear to have been written over a previous tracing; (3) that the person who wrote

Gabina Raquel by Lourdes Samonte is different from the one who wrote Lourdes Samonte as signature

of an attesting witness; (4) that the signature Lourdes Samonte on the left margin of page 3 of thetestament was written only after that of Felipa Samala when the testimony for the proponent was that

they were written in the reverse order; and (5) that the pen used in signing Gabina Raquel at the foot of

the will had separated nibs, while the other signatures in the document were written with a round point

pen, again contrary to the contention for the proponent that only one pen was used.

After careful consideration of the testimony on record, we are of the opinion that the facts adverted to by

the expert for the contestant do not clearly support the conclusions drawn by him. Thus, his assertion that

the fingerprints were affixed after writing the name of the testatrix appears to be an inference drawn from

the fact that the ink of the writing failed to spread along the ridge lines of the fingerprints. This conclusion

obviously failed to take into account the fact that the evidence is that some 10 or 20 minutes elapsed

between the affixing of the fingerprints and the writing of the marginal signatures, due to the fact that

they were not written until after a long wait for the testatrixs attack of pain to subside. There was

sufficient time for the fingerprint (which was made in rubber stamp ink) to dry, and recognized authorities

on the matter point out that ink lines over rubber stamps will spread out if the stamp is not dry

(Soderman OConnel, Modern Criminal Investigation, 2d Ed., p.453); and if the stamp impression is

allowed to dry thoroughly before the writing is written over it, the ink will not run out as it does on a damp

ink line (Osborn, Questioned Documents, 2d Ed., p. 514). To such effect, the only composition of the


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rubber stamp ink no doubt contributes. Thus, while the spreading out or running out of the writing ink

along the stamping ink lines proves that the writing was made later, the absence of spread does not prove

that stamping ink lines were made after the writing was done.

As to the alleged forgery of Samontes signature in page 3, the lighter shade of the underlying characters

strongly indicates that the overwriting was made to correct ink failure or other imperfection in the first

writing. The experts opinion is also discredited by the fact that Samonte being available to the proponent

(since she testified in favor of the will), there would be no sense in forging Samontes signature, when anauthentic one was at proponents disposal all the time. And assuming it to be true that in page 3 of the

will Exh. D, Samonte signed after Samala, while in the other pages she had signed ahead, such occasional

departure from the order usually followed does not signify that the execution of the testament was in any

way abnormal or fraudulent. As to the alleged use of two different pens, expert Fernandez conclusions

are backed more by opinion than by facts, besides being contradicted by expert Espinosa, and the

proponents other witnesses.

The basis for the conclusions of expert Fernandez, who admitted having been engaged on a contingent

basis, not being satisfactorily established and his testimony being contradicted by the two witnesses to the

will and the expert for the defense, the lower court erred in considering that the preponderance of the

evidence lay with contestants (Roxas vs. Roxas, 48 O. G. 2177; cf Galvez vs. Galvez, 26 Phil. 243; Samson vs

Tan Quintin, 44 Phil. 573).

We do not venture to impute bias to the experts introduced during the trial, but we hasten to state that

the positive testimony of the three attesting witnesses ought to prevail over the expert opinions which

cannot be mathematically precise but which on the contrary, are subject to inherent infirmities. x x x

Speculations on these matters should give way to the positive declarations of the attesting witnesses.

The law impliedly recognizes the almost conclusive weight of the testimony of attesting witnesses when itprovides that if the will is contested, all the subscribing witnesses present in the Philippines and not

insane, must be produced and examined, and the death, absence, or insanity or any of them must be

satisfactorily shown to the court. (Section 11, Rule 77, Rules of Court.) (Roxas vs. Roxas, supra)

We are aware that the bequest of the greater portion of decedents estate in favor of proponent Aurea

Matias is contained in the first page of the contested will, while the only authentic signature of the

deceased appeared in the second page; but the appointment of proponent as executrix of the will without

bond (con relevacion de fianza) appearing in the very same page (page 2) fully bespeaks the affection of

the testatrix for the proponent, who had lived with the deceased, helped and served her for thirty years,

and morally confirms the contested bequest.

The court below likewise held against the proponent the fact that the subscribing witness Modesta

Gonzalez was not a witness; claiming that such failure was a violation of sec. 11, Rule 77 of the Rules of

Court. But while Modesta Gonzalez was not placed on the stand, the proponent made no secret of her

whereabouts, nor of the reason why she was not asked to testify: the record shows that both Dr. Bellaflor

and Dr. Sanchez agreed that Gonzalez was suffering from hypertension, that she was in the danger zone,

and might collapse and die as a consequence of a little excitement on her part. The trial court, having

expressly made of record that it would not like to assume responsibility for whatever might happen to


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this woman (t.s.n. p. 301), could not logically hold proponent to account for not risking Modestas death.

At any rate, contestants were free to call her as their own witness, had they felt justified in so doing; so

that no unfavorable inference can be drawn from the fact that Modesta Gonzalez was not called by the

proponent to the witness stand.

Finally, the contestant urges that the fingermark of the testatrix can not be regarded as her valid signature

since it does not show distinct identifying ridge lines; and thence, that the attestation clause, transcribed

earlier in this opinion, should be held defective because it fails to state that Lourdes Samonte signed for

the testator. This Court has repeatedly held that the legal requisite that the will should be signed by the

testator is satisfied by a thumbprint or other mark affixed by him (De Gala vs. Ona, 53 Phil. 105; Dolor vs.

Diancin, 55 Phil. 479; Neyra vs. Neyra, 42 O. G. 2817; Lopez vs. Liboro, 46 O. G. (Supp. to No. 1) 211); and

that where such mark is affixed by the decedent, it is unnecessary to state in the attestation clause that

another person wrote the testators name at his request (Payad vs. Tolentino, 62 Phil. 849). While in some

of these cases the signing by mark was described in the will or in the attestation clause, it does not appear

that the Court ever held that the absence of such description is a fatal defect.

Appellant relies on the case of Garcia vs. Lacuesta, G. R. L- 4067, Nov. 29, 1951, wherein this Court denied

probate holding that a will signed with a cross written after the testators name is not a sufficient

signature. But in that case no showing was made that the cross mark was the testators habitual signature

nor was any explanation given why he should use a cross when he knew how to sign. In the case now

before us, it was shown that the herpes zoster that afflicted the right arm and shoulder of testatrix made

writing a difficult and painful act, to the extent that, after writing one signature on the second page, she

dropped the pen because of an attack of pain that lasted many minutes and evidently discourage attempts

to sign.

As to the clarity of the ridge impressions, it is so dependent on aleatory circumstances (consistency of the

ink, overinking, slipping of the finger, etc.) as to require a dexterity that can be expected of very few

persons; and we do not believe testators should be required to possess the skill of trained officers. It is to

be conceded that where a testator employs an unfamiliar way of signing, and both the attestation clause

and the will are silent on the matter, such silence is a factor to be considered against the authenticity of

the testament; but the failure to describe the unusual signature by itself alone is not sufficient to refuse

probate when the evidence for the proponent fully satisfies the court (as it does satisfy us in this case) that

the will was executed and witnessed as required by law.

WHEREFORE, the judgment appealed from is reversed, and the document Exh. D ordered admitted to

probate. Let the records be returned to the court of origin for further proceedings in accordance with thisopinion. Costs against appellees.


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[G.R. No. L-4067. November 29, 1951]

In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, Petitioner, v. JULIANA

LACUESTA, ET AL., Respondents.

SYLLABUS

1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF TESTATORS NAME AT LATTERS DIRECTION.

When the testator expressly caused another to sign the formers name, this fact must be recited in the

attestation clause. Otherwise, the will is fatally defective.

2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross appearing on a will is not the usual signature

of the testator or even one of the ways by which he signed his name, that cross cannot be considered a

valid signature.

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 do 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 of 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 testament, this the third day of January, one thousand nine hundred

forty three, (1943) A.D.

(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO 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 ruego del testador" 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 judgment 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 formers 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 testators name under his express direction, as required by section 618

of the Code of Civil Procedure. The herein petitioner (who is appealing by way ofcertiorarifrom 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


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a surplusage. Petitioners 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 v. Gonzales and Ona, 53 Phil., 104; Dolar v.

Diancin, 55 Phil., 479; Payad v. Tolentino, 62 Phil., 848; Neyra v. Neyra, 76 Phil., 296 and Lopez v. 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 a cross to a thumb mark, and the reason is obvious. The cross cannot and does not havethe trustworthiness of a thumb mark.

What has been said makes it unnecessary for us to determine whether 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 costs against the petitioner. So ordered.


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[G.R. No. L-15153. August 31, 1960. ]

In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana. LUCIO

BALONAN, Petitioner-Appellee, v. EUSEBIA ABELLANA, ET AL., Oppositors-Appellants.

1. WILLS; EXECUTION OF WILL; SUBSCRIBED AT THE END BY SOME PERSON OTHER THAN THE TESTATOR,

INSUFFICIENT COMPLIANCE WITH THE LAW. A will subscribed at the end thereof by some person other

than the testator in such manner that the signature of said person appears above the typewritten

statement "Por la Testadora Anacleta Abellana . . . Ciudad de Zamboanga," may not be admitted toprobate for failure to comply with the express requirement of the law that the testator must himself sign

the will or that his name be affixed thereto by some other person in his presence and by his express

direction.

Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of

one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following

assignment of error is made:

"The appellants respectfully submit that the Trial Court erred in holding that the supposed testament,

Exh.A, was signed in accordance with law; and in admitting the will to probate." In view of the fact that

the appeal involves a question of law the said court has certified the case to us.

The facts as found by the trial court are as follows:

"It appears on record that the last Will and Testament (Exhibit A), which is sought to be probated, is

written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record)

double space. The first page is signed by Juan Bello and under his name appears typewritten Por la

testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga, and

on the second page appears the signature of the three (3) instrumental witnesses Blas Sebastian, Faustino

Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his

signature is his official designation as the notary public who notarized the said testament. On the first page

on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the

second page, which is the last page of the said last Will and Testament, also appears the signature of the

three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan

Bello under whose name appears handwritten the following phrase, Por la Testadora Anacleta Abellana.

The will is duly acknowledged before Notary Public, Attorney Timoteo de los Santos." (Italics supplied.)

The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the

typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the

requirements of the law prescribing the manner in which a will shall be executed?

The present law, Article 805 of the Civil Code, in part provides as follows:"Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or

by the testators name written by some other person in his presence, and by his express direction, and

attested and subscribed by three or more credible witnesses in the presence of the testator and of one

another." (Italics supplied.)

The clause "must be subscribed at the end thereof by the testator himself or by the testators name

written by some other person in his presence and by his express direction," is practically the same as the

provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:

"No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor


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charge or affect the same, unless it be in writing and signed by the testator, or by the testators name

written by some other person in his presence, and by his express direction, and attested and subscribed by

three or more credible witnesses in the presence of the testator and of each other. . . ." ( Italics supplied)

Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do

so, the testators name must be written by some other person in his presence and by his express direction.

Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, Et Al., 4 Phil.,

700:jgc:chanrobles.com.ph

"It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the

testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting

witnesses signs the will at the testators request, the notary certifying thereto as provided in article 695 of

the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary

that the testators name be written by the person signing in his stead in the place where he would have

signed if he knew how or was able so to do, and this in the testators presence and by his express

direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will

not be allowed to be probated.

"Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be

signed in the following manner:

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John Doe by the testator, Richard Roe; or in this form: By the testator, John Doe, Richard Roe. All this

must be written by the witness signing at the request of the testator.

"Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of

the will the full name of the testator and his own name in one of the forms given above. He did not do so,

however, and this failure to comply with the law is a substantial defect which affects the validity of the will

and precludes its allowance, notwithstanding the fact that no one appeared to oppose it." virtua1aw

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The same ruling was laid down in the case of Cuison v. Concepcion, 5 Phil., 552. In the case of Barut v.

Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the

testatrix was signed at her express direction; it is unimportant whether the person who writes the name of

the testatrix signs his own or not. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13

Phil., 479, Caluya v. Domingo, 27 Phil., 330; Garcia v. Lacuesta, 90 Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by

said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express

requirement in the law that the testator must himself sign the will, or that his name be affixed thereto bySome other person in his presence and by his express direction.

It appearing that the above provision of the law has not been complied with, we are constrained to declare

that the said will of the deceased Anacleta Abellana may not be admitted to probate.

Wherefore, the decision appealed from is hereby set aside and the petition for the probate of the will

denied. With costs against petitioner.


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[Adm. Case No. 4. March 21, 1946. ]

In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD NEYRA, Petitioner-Appellee,

v. TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, Oppositors-Appellants.

TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, Petitioners-Appellants, v.

TRINIDAD NEYRA and EUSTAQUIO MENDOZA, Oppositors-Appellees.

1. WILLS; TESTAMENTARY CAPACITY, DEFINED. Testamentary capacity is the capacity to comprehend

the nature of the transaction in which the testator is engaged at the time, to recollect the property to be

disposed of, and the persons who would naturally be supposed to have claims upon the testator, and to

comprehend the manner in which the instrument will distribute his property among the objects of his

bounty.

2. D.; ID.; INSOMNIA, TUBERCULOSIS, DIABETES, NOT SUFFICIENT TO DESTROY MENTAL CAPACITY.

Insomnia, in spite of the testimony of two doctors who testified for the opponents of the probate of a will,

who stated that it tended to destroy mental capacity, was held not to affect the full possession of the

mental faculties deemed necessary and sufficient for its execution. (Caguioa v. Calderon, 20 Phil., 400.) The

testatrix was held to have been compos mentis, inspite of the physicians testimony to the contrary, to the

effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua v. Yap Ca Kuan and

Yap Ca Llu, 27 Phil., 579.) The testimony of the attending physician that the deceased was suffering from

diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient

to establish testamentary incapacity, in view of the positive statement of several credible witnesses that

he was conscious and able to understand what was said to him and to communicate his desires. (Samsan v

Corrales Tan Quintin, 44 Phil., 573.)

3. ID.; ID.; OLD AGE OR ILL HEALTH INSUFFICIENT TO INVALIDATE WILL. Where the mind of the testator

is in perfectly sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his

hand in order that he might sign, is sufficient to invalidate his will.

4. ID.; ID.; EVIDENCE OF SOUND MIND. Where it appears that a few hours and also a few days after theexecution of the will, the testator intelligently and intelligibly conversed with other persons, although lying

down and unable to move or stand up unassisted, but could still effect the sale of property belonging to

him, these circumstances show that the testator was in a perfectly sound mental condition at the time of

executing the will.

5. ID.; ID.; SLEEPING SICKNESS (ADDISONS DISEASE) DOES NOT IMPAIR MENTAL FACULTIES. The mental

faculties of persons suffering from Addisons disease, like the testatrix in this case remain unimpaired,

partly due to the fact that, on account of the sleep they enjoy, they necessarily receive the benefit of

physical and mental rest. And like patients suffering from tuberculosis, insomnia or diabetes, they preserve

their mental faculties until the moments of their death.

6. ID.; SIGNING BY THUMBMARK; PRESENCE OF ATTESTING WITNESSES; TEST OF. The oppositors also

claim that the attesting witnesses were not present, at the time that the testatrix thumbmarked the will in

question, on her bed, in the sala of the house, as they were allegedly in the caida. But it has been fully

shown that the attesting witnesses were present at the time of the signing and execution of the

agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not

whether they actually saw each other, at the time of the signing of the will, but whether they might have

seen each other sign, had they chosen to do so and, the attesting witnesses actually saw it in this case.

(Jaboneta v. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the will is equivalent to


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her signature. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, supra.)

7. APPEAL; FINDINGS OF FACT OF TRIAL COURT, WHEN TO BE REVERSED. This court will not reverse any

findings of fact by the trial court made upon conflicting testimony and depending largely upon the

credibility of witnesses, who testified in the presence of the trial judge, unless the court below failed to

take into consideration some material facts or circumstances or to weigh accurately all of the material

facts and circumstances presented to it for consideration.

This is an appeal from a decree rendered by the Hon. Gervasio Diaz, Judge of the Court of First Instance of

the City of Manila, on December 3, 1943, admitting to probate a will dated November 3, 1942, executed by

the deceased Encarnacion Neyra; at the same time denying the probate of a previous will dated

September 14, 1939, alleged to have been executed by the said testatrix.

Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed, on November 10, 1942, a

petition in the Court of First Instance of Manila, for the probate of said will.

On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo Vda. de Blanco, who had not

been named as beneficiaries in said will, filed on opposition to the probate of the said will dated

November 3, 1942, alleging (1) that at the time of the alleged execution of the said will, the testatrix

Encarnacion Neyra no longer possessed testamentary capacity; (2) that her thumb marks on said

instrument had been procured by means of fraud by petitioner Trinidad Neyra, and that Encarnacion

Neyra never intended to consider said document as will; (3) that the alleged will, dated November 3, 1942,

had not been executed in the manner and form prescribed by law; and (4) that Encarnacion Neyra, since

September 14, 1939, had executed a will naming as beneficiaries said oppositors and others, and that said

will had never been revoked or amended in any manner whatsoever.

On December 26, 1942, petitioner Trinidad Neyra filed a reply denying the allegations in the opposition.

Subsequently, said oppositors filed a counter petition, asking for the probate of the first will executed by

Encarnacion Neyra, on September 14, 1939, marked as Exhibit 16. On March 16, 1943, the legatees

Trinidad Neyra and Eustaquio Mendoza filed their opposition to the probate of said will marked as Exhibit

16, and amended said opposition, on September 15, 1943, to which Teodora Neyra and the others filed a

reply, on September 20, 1943.

On the dates set for the hearing on the petition filed by Trinidad Neyra, and the counter petition

mentioned above, said petitioner as well as the oppositors, presented evidence, testimonial and

documentary. The witnesses presented by the petitioner Trinidad Neyra were Mons. Vicente Fernandez,

Rev. Fr. Teodoro Garcia, Sor. Andrea Montejo, Dr. Moises B. Abad, Dr. Eladio A. Aldecoa, Atty. Ricardo

Sikat, petitioner Trinidad Neyra herself, and Atty. Alejandro M. Panis, who had acted as scrivener in thepreparation of said will dated November 3, 1942.

Teodora Neyra and the other oppositors also presented several witnesses, the principal among whom

were Presentacion Blanco, Ceferina de la Cruz, Acislo Manuel, Dr. Dionisio Parulan, an alleged medical

expert, and the oppositors Teodora Neyra and Pilar de Guzman themselves.

After considering the evidence, the lower court rendered a decree admitting to probate the will dated

November 3, 1942; at the same time denying the probate of the will dated September 14, 1939.

From said decision Teodora Neyra and the other oppositors appealed to the Court Appeals for the City of


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Manila, assigning several errors, which may be reduced to the following, to wit, the trial court erred (1) in

finding that Encarnacion Neyra wanted to make a new will; (2) in declaring that there was reconciliation

between Encarnacion Neyra and her sister Trinidad; (3) in accepting as satisfactory the evidence submitted

by the petitioner; (4) in ignoring the evidence submitted by the oppositors; and (5) in not admitting to

probate the will dated September 14, 1939.

The evidence, testimonial and documentary, adduced during the trial of the case in the court below, has

satisfactorily and sufficiently established the following facts:chanrob1es virtual 1aw library

That Severo Neyra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two

children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and several other relatives;

that after the death of Severo Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra, had serious

quarrels, in connection with the properties left by their deceased father, and so serious were their

dissensions that, after March 31, 1939, they had two litigations in the Court of First Instance of Manila,

concerning said properties (Exhibits 8 and 9): In the first case, filed on March 31, 1939, Trinidad Neyra and

others demanded from Encarnacion Neyra Et. Al. the annulment of the sale of the property located at No.

366 Raon Street, Manila, and it was finally decided in favor of the defendants in the Court of First instance

and in the Court of Appeals, on December 21, 1943 (G. R. No. 8162, Exhibit 9).

In the second case, filed on October 25, 1939, Trinidad Neyra demanded from Encarnacion Neyra, one-half

(1/2) of the property described therein, and one-half (1/2) of the rents, and the Court of First Instance

decided in favor of the plaintiff, but at the same time awarded in favor of the defendant P727.77 under

her counterclaim; and Trinidad Neyra again elevated the case to the Court of Appeals for Manila (G. R. No.

8075) Exhibit 8, which was decided, pursuant to the document of compromise marked as Exhibit D; and

the petition for reconsideration filed therein still remains undecided.

That Encarnacion Neyra, who had remained single, and who had no longer any ascendants, executed a will

on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the "Congregacion de

Religiosas de la Virgen Maria" and her other relatives named Teodora Neyra, Pilar de Guzman and Maria

Jacobo Vda. de Blanco, making no provision whatsoever in said will in favor of her only sister Trinidad

Neyra, who had become her bitter enemy; that when the said will was brought to the attention of the

authorities of said Congregation, after due deliberation and consideration, said religious organization

declined the bounty offered by Encarnacion Neyra, and said decision of the Congregation was duly

communicated to her; that in order to overcome the difficulties encountered by said religious organization

in not accepting the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that

purpose, about one week before her death, sent for one Ricardo Sikat, an attorney working in the Law

Offices of Messrs. Feria and Lao, and gave him instructions for the preparation of a new will; that Attorney

Sikat, instead of preparing a new will, in accordance with the express instructions given by Encarnacion

Neyra merely prepared a draft in the form of a codicil, marked as Exhibit M, amending said will , datedSeptember 14, 1939, again naming said religious organization, among others, as beneficiary, and said draft

of a codicil was also forwarded to the authorities of said religious organization, for their consideration and

acceptance.

In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addisons disease, and on

October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of the Quiapo

Church to make confession, after which she expressed her desire to make a mass celebrated in her house

at No. 366 Raon Street, City of manila, so that she might take holy communion, in view of her condition;

that following the request of Encarnacion Neyra, Mons. Fernandez caused the necessary arrangements to

be made for the celebration of holy mass in the house of Encarnacion Neyra, and as a matter of fact, on


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November 1, 1942, holy mass was solemnized in her house, Fr. Teodoro Garcia, also of the Quiapo Church,

officiating in said ceremony, on which occasion, Encarnacion Neyra, who remained in bed, took holy

communion; that after said religious ceremony had been terminated, Father Garcia talked to Encarnacion

Neyra and advised reconciliation between the two sisters, Encarnacion Neyra and Trinidad Neyra.

Encarnacion Neyra accepted said advice and at about noon of the same day (November 1, 1942), sent

Eustaquio Mendoza to fetch her sister Trinidad Neyra, who came at about @:30 that same afternoon; that

on seeing one another, the two greeted each other in a most affectionate manner, and became reconciled

that the two had a long and cordial conversation, in the course of which the two sisters also talked aboutthe properties left by their deceased father and their litigations which had reached the Court of Appeals

for the City of Manila, and they agreed to have the said appeal dismissed, on the condition that the

property involved therein, consisting of a small house and lot, should be given exclusively to Trinidad

Neyra, on the condition that the latter should waive her claim for her share in the rents of said property,

while under the administration of Encarnacion Neyra, and that the two should renounce their mutual

claims against one another. It was also agreed between the two sisters to send for Atty. Alejandro M.

Panis, to prepare the necessary document embodying the said agreement, but Attorney Panis could come

only in the afternoon of the following day, November 2, 1942, when Encarnacion gave him instructions for

the preparation of the document embodying their agreement, and other instructions relative to the

disposition she wanted to make of her properties in her last will and testament; that Attorney Panis

prepared said document of compromise or agreement marked as Exhibit D, as well as the new will and

testament marked as Exhibit C, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein,

pursuant to the express instructions given by Encarnacion Neyra, and said instruments were ready for

signature on November 3, 1942; that in the afternoon of that day, November 3, 1942, Attorney Panis read

said will and testament marked as Exhibit D to Encarnacion Neyra slowly and in a loud voice, in the

presence of Fr. Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner Trinidad Neyra,

and others, after which he asked her if its terms were in accordance with her wishes, if she had anything

else to add, or anything to be changed in said will; and as Encarnacion Neyra stated that the terms of said

will were in accordance with her wishes and express instructions, she asked for the pad and the will Exhibit

C and, with the help of a son of herein petitioner, placed her thumb mark at the foot of said will, in the

presence of the three attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro

M. Panis, after which the attesting witnesses signed at the foot of the document, in the presence of the

testatrix Encarnacion Neyra, and of each and everyone of the other attesting witnesses. Fr. Teodoro Garcia

and petitioner Trinidad Neyra and several others were also present.

On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack, unexpectedly died.

Although the "Congregacion de Religiosas de la Virgen Maria" had again decided not to accept the

provision made in its favor by testatrix Encarnacion Neyra in the proposed codicil prepared by Atty.

Ricardo Sikat, said decision could not be communicated to the testatrix, before her death.

Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as to the request made on October 31, 1942, by

Encarnacion Neyra for the celebration of holy mass in her house, on November 1, 1942; that said mass was

in fact solemnized in her house, on that date, in the course of which the testatrix Encarnacion Neyra took

holy communion; that on the same day, after the mass, Encarnacion held a long conversation with Father

Garcia, in the course of which, said priest advised her to have reconciliation with her sister Trinidad; and

that said advise was accepted by Encarnacion.

By the testimony of Trinidad Neyra, it has been shown that Encarnacion sent Eustaquio Mendoza to fetch

her, and that in fact she came to the house of Encarnacion, at about 2:30 o clock in the afternoon that


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same day, November 1, 1942, with said Eustaquio Mendoza; that on seeing one another, Encarnacion and

Trinidad Neyra greeted each other most affectionately, forgiving one another, after which they talked

about the property left by their deceased father and the litigation pending between them; and the two

sisters agreed to settle their case, which had been elevated to the Court of Appeals for the City of Manila,

concerning a certain house and lot, on the understanding that said property should be given exclusively to

Trinidad, and that the latter should renounce her claim against Encarnacion, for her share in the rents

collected on said property, and, at the same time, Encarnacion renounced her claim for P727.77 against

Trinidad; and at it was also agreed between the two sisters that Atty. Alejandro M. Panis should be calledto prepare the necessary papers for the settlement of said case. Presentacion Blanco, a witness for the

oppositors, also testified substantially to the foregoing facts.

By the testimony of Trinidad Neyra and Atty. Alejandro M. Panis, and the other attesting witnesses, it has

also been shown that Atty. Alejandro M. Panis came in the afternoon of the following day, November 2,

1942, and received instructions from Encarnacion Neyra, not only for the preparation of said agreement,

but also for the preparation of a new will, and consequently Attorney Panis prepared said document of

compromise and the will, dated November 3, 1942, which were both thumb marked, in duplicate, in the

afternoon of that day, by Encarnacion Neyra, who was then of sound mind, as shown by her appearance

and conversation, aided by a son of Trinidad Neyra, on her bed in the sala, in the presence of the attesting

witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, who signed in the

presence of the testatrix and of each other.

Father Teodoro Garcia was also present at the signing of the will, at the request of Encarnacion Neyra, and

so was Trinidad Neyra.

On November 4, 1942, due to a heart attack as a consequence of Addisions disease, perhaps, Encarnacion

Neyra expired, at about 3 oclock in the morning.

Oppositor Teodoro Neyra, her young daughter Ceferina de la Cruz, and Presentacion Blanco, daughter of

oppositor Maria Jacobo Vda. de Blanco, practically corroborated the testimony of the witnesses of the

petitioner, with reference to the signing of documents, in the bedroom of Encarnacion Neyra, on

November 3, 1942.

Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz, witnesses for the oppositors, testified,

however, that when the thumb mark of Encarnacion Neyra was affixed, as stated above, to the document

of compromise in question, dated November 3, 1942, she was sleeping on her bed in the sala; and that the

attesting witnesses were not present, as they were in the caida.

But Ceferina de la Cruz, witness for the oppositors, also stated that the attesting witnesses signed the

documents thumb marked by Encarnacion Neyra, in the sala near her bed, thus contradicting herself andTeodora Neyra and Presentacion Blanco.

Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that Encarnacion

Neyras thumb mark was affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra

and Ildefonso del Barrio, when Encarnacion was already dead.

The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature and effects of Addisons

disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion Neyra.


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According to medical authorities, the cause or causes of the sleeping s ickness, known as Addisons disease,

are not yet fully known; that persons attacked by said disease often live as long as ten (10) years after the

first attack, while others die after a few weeks only, and that as the disease progresses, asthenia sets in,

and from 80 per cent to 90 per cent of the patients develop tuberculosis, and complications of the heart

also appear. (Cecil, Textbook of Medicine, 3d ed., 1935, pp. 1250, 1252, 1253; MaCrae, Oslers Modern

Medicine, 3d ed., Vol. V pp. 272-279).

And it has been conclusively shown in this case that the testatrix Encarnacion Neyra, at the age of 48, diedon November 4, 1942, due to a heart attack, after an illness of about two (2) years.

In connection with testamentary capacity, in several cases, this court has considered the testimony of

witnesses, who had known and talked to the testators, more trustworthy than the testimony of alleged

medical experts.

Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is

engaged at the time, to recollect the property to be disposed of, and the persons who would naturally be

supposed to have claims upon the testator, and to comprehend the manner in which the instrument will

distribute his property among the objects of his bounty. (Bugnao v. Ubag, 14 Phil., 163.) .

Insomnia, in spite of the testimony of two doctors who testified for the opponents to the probate of a will,

who stated that it tended to destroy mental capacity, was held not to affect the full possession of the

mental faculties deemed necessary and sufficient for its execution. (Caguioa v. Calderon, 20 Phil., 400.) The

testatrix was held to have been compos mentis, in spite of physicians testimony to the contrary, to the

effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua v. Yap Ca Kuan and

Yap Ca Llu, 27 Phil., 579.) The testimony of the attending physician that the deceased was suffering from

diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient

to establish testamentary incapacity, in view of the positive statement of several credible witnesses that

he was conscious and able to understand what said to him and to communicate his desires. (Samson v.

Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly sound condition, neither

old age, nor ill health, nor the fact that somebody had to guide his hand in order that he might sign, is

sufficient to invalidate his will. (Amata v. Tablizo, 48 Phil., 485.)

Where it appears that a few hours and also a few days after the execution of the will, the testator

intelligently and intelligibly conversed with other persons, although lying down and unable to move or

stand up unassisted, but could still effect the sale of property belonging to him, these circumstances show

that the testator was in a perfectly sound mental condition at the time of executing the will. (Amata and

Almojuela v. Tablizo, 48 Phil., 485.)

Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning andalso at about 6 oclock in the afternoon of November 3, 1942, Encarnacion Neyra talked to her and that

they understood each other clearly, thus showing that the testatrix was really of sound mind, at the time

of the signing and execution of the agreement and will in question.

It may, therefore, be reasonably concluded that the mental faculties of persons suffering from Addisons

disease, like the testatrix in this case, remains unimpaired, partly due to the fact, on account of the sleep

they enjoy, they necessarily receive the benefit of physical and mental rest. And that like patients suffering

from tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their

death.


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Judging by the authorities above cited, the conclusion made by the trial court that the testatrix

Encarnacion Neyra was of sound mind and possessed of testamentary capacity, at the time of the

execution of the will, cannot be properly disturbed.

The oppositors also claim that the attesting witnesses were not present, at the time that the testatrix

thumb marked the will in question, on her bed, in the sala of the house, as they were allegedly in the

caida. But it has been fully shown that the attesting witnesses were present at the time of the signing andexecution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The

true test is not whether they actually saw each other, at the time of the signing of the will, but whether

they might have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it

in this case. (Jaboneta v. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the will is

equivalent to her signature. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.)

The oppositors as well as their principal witnesses are all interested parties, as said oppositors had been

named legatees in the will dated September 14, 1939, but eliminated from the will dated November 3,

1942.

On the other hand, the witnesses for the petitioner are all trustworthy men, who had absolutely no

interest in the final outcome of this case. Two of them are ministers of the Gospel, while the three

attesting witnesses are professional men of irreproachable character, who had known and seen and talked

to the testatrix.

Furthermore, the testimony of the oppositors and their witnesses, to the effect that there could have been

no reconciliation between the two sisters, and that the thumb mark of Encarnacion Neyra was affixed to

the document embodying the agreement, while she was sleeping, on November 3, 1942, in their presence;

and that her thumb mark was affixed to the will in question, when she was already dead, in the morning of

November 4, 1942, within their view, is preposterous, to say the least. Said testimony is contrary to

common sense. It violates all sense of proportion. The oppositors and their witnesses could not have told

the truth; they have testified to brazen falsehoods; and they are, therefor, absolutely unworthy of belief.

And to the evidence of the oppositors is completely applicable the rule falsus in uno, falsus in omnibus.

(Gonzalez v. Mauricio, 53 Phil., 728, 735.) .

In the brief presented by counsel for the oppositors and appellants, to show the alleged improbability of

the reconciliation of the two sisters, and the execution of the will, dated November 3, 1942, they have

erroneously placed great reliance on the fact that up to October 31, 1942, the two sisters Encarnacion and

Trinidad Neyra were bitter enemies. They were banking evidently on the common belief that the hatred of

relatives is the most violent. Dreadful indeed are the feuds of relatives, and difficult the reconciliation. But

they have forgotten the fact that Encarnacion Neyra was a religious and pious woman instructed in theancient virtues of Christian faith and hope and charity, and that it was godly to forgive and better still to

forget.

It was almost natural that there should have been reconciliation between the two sisters, Encarnacion and

Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole blood. The

approach of imminent death must have evoked in her the tenderest recollections of childhood. And

believing perhaps that her little triumphs had not always brought her happiness, and that she had not

always been fair to her sister, who, in fact, had successively instituted two suits against her, to recover

what was her due, and for which Encarnacion believed she must atone, she finally decided upon


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reconciliation, so that she might depart in peace.

The record shows that, of the two, Encarnacion lived in great opulence, and that Trinidad had been

demanding tenaciously her share; and as a Christian woman, Encarnacion must have known that no one

has any right to enrich himself unjustly, at the expense of another. And it was, therefore, natural that

Encarnacion should desire reconciliation with her sister Trinidad, and provide for her in her last will and

testament.

As for Eustaquio Mendoza, who, according to the evidence, had served Encarnacion Neyra for so many

years and so well, it was also natural that she should make some provision for him, as gratituted is the

noblest sentiment that springs from the heart.

The conduct of Encarnacion Neyra, in making altogether a new will, with new beneficiaries named therein,

including principally her bitterest enemy of late, which is completely uncompatible with the will, dated

September 14, 1939, may really seem strange and unusual; but, as it has been truly said, above the logic of

the head is the feeling of the heart, always understand, as in the case of intuitive knowledge of eternal

verity.

As Encarnacion Neyra, felt the advent of immortality, she naturally wanted to follow "the path of the just,

which is as the shining light that shineth more and more unto the perfect day," so that her memory may

be blessed. As a Christian woman, she must have loved justice, mercy and truth and to follow the law, for

this is the whole duty of man.

In the present case, the court cannot find any reason or justification to alter the conclusions set forth in

the decree appealed from. This court will not reverse any findings of fact by the trial court made upon

conflicting testimony and depending largely upon the credibility of witnesses, who testified in the

presence of trial judge, unless the court below failed to take into consideration some of material facts or

circumstances, or to weigh accurately all of the material facts and circumstances presented to it for

consideration. (Baltazar v. Alberto, 33 Phil., 336; Melliza v. Towle, 34 Phil., 345; Caragay v. Urquiza, 53

Phil., 72, 79; Garcia v. Garcia de Bartolome, 63 Phil., 419.) .

After a careful consideration of the evidence and the law in this case, we find it legally impossible to

sustain any of the errors assigned by the appellants. The judgment appealed from is, therefore, affirmed,

with costs against the appellants. So ordered.

Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875,

879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page,

said:

This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing

authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity

of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses.

In the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained the

necessary signatures on the margin of each leaf ( folio), but not in the margin of each page containing

written matter.


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[G.R. No. 13431. November 12, 1919. ]

In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, v. ANASTACIA ABANGAN ET AL.,

opponents-appellants.

1. WILLS; ATTESTATION. In a will consisting of two sheets the first of which contains all the testamentary

dispositions and is signed at the bottom by the testator and three witnesses and the second contains only

the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both

sheets be further signed on their margins by the testator and the witnesses, or be paged.

2. ID.; ID; TESTATORS SIGNATURE. The testators signature is not necessary in the attestation clause

because this, as its name implies, appertains only to the witnesses and not to the testator.

3. ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION. The circumstance appearing in the will itself that

same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor

is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which her

will is written.

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangans willexecuted July, 1916. From this decision the opponents appealed.

Said document, duly probated as Ana Abangans will, consists of two sheets, the first of which contains all

of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under

the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation

clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on

the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions,

according to appellants contention, are defects whereby the probate of the will should have been denied.

We are of the opinion that the will was duly admitted to probate.

In requiring that each and every sheet of the will should also be signed on the left margin by the testator

and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case)

evidently has for its object (referring to the body of the will itself) to avoid the substitution of any of said

sheets, thereby changing the testators dispositions. But when these dispositions are wholly written on

only one sheet signed at the bottom by the testator and three witnesses (as the instant case), their

signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on

the margin, the statute took into consideration, undoubtedly, the case of a will written on several sheets

and must have referred to the sheets which the testator and the witnesses do not have to sign at the

bottom. A different interpretation would assume that the statute requires that this sheet, already signed

at the bottom, be signed twice. We cannot attribute to the statute such an intention. As these signaturesmust be written by the testator and the witnesses in the presence of each other, it appears that, if the

signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin

would be unnecessary; and if they do not guaranty, same signatures, affixed on another part of same

sheet, would add nothing. We cannot assume that the statute regards of such importance the place where

the testator and the witnesses must sign on the sheet that it would consider that their signatures written

on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient

security.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the


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upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of

the will has been removed. But, when all the dispositive parts of a will are written .on one sheet only, the

object of the statute disappears because the removal of this single sheet, although unnumbered, cannot

be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without considering whether or

not this clause is an essential part of the will, we hold that in the one accompanying the will in question,

the signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages ofthe sheet are formalities not required by the statute. Moreover, referring specially to the signature of the

testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies,

appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the

will.

Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the

testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second

contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not

necessary that both sheets be further signed on their margins by the testator and the witnesses, or be

paged.

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 testators last will, must be disregarded.

As another ground for this appeal, it is alleged the records do not show that the testatrix knew the dialect

in which the will is written. But the circumstance appearing in the will itself that same was executed in the

city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence

of any proof to the contrary, to presume that she knew this dialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the

appellants. So ordered.


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[G.R. No. L-1787. August 27, 1948. ]

Testacy of Sixto Lopez. JOSE S. LOPEZ v. AGUSTIN LIBORO, Oppositor-Appellant.

SYLLABUS

1. WILLS; PAGING; PURPOSE; OMISSION OF PAGE NUMBER SUPPLIED BY OTHER MEANS OF

IDENTIFICATION. The purpose of the law in prescribing the paging of wills is to guard against fraud, and

to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan v.

Abangan, 40 Phil., 476.) The omission to put a page number on a sheet, if that be necessary, may be

supplied by other forms of identification more trustworthy than the conventional numeral words or

characters.

2. ID.; EVIDENCE; WITNESSES, CREDIBILITY OF; CONTRADICTIONS ON INCIDENTS. contradictions in the

testimony of the instrumental witnesses as are set out in the appellants brief are incidents, not all of

which every one of the witnesses can be supposed to have perceived, or to recall in the same order in

which they occurred. Far from being an evidence of falsehood, the contradictions constitute an evidence

of good faith.

3. ID.; SIGNATURE BY MARK. A statute requiring a will to be "signed" is satisfied if the signature is made

by the testators mark.

4. ID.; EVIDENCE; ADMISSION OF FURTHER EVIDENCE AFTER PARTY HAS RESTED; DISCRETION OF COURT.

It is within the discretion of the court whether or not to admit further evidence after the party offering

the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused.

5. ID.; ID.; ADMISSION OF FURTHER EVIDENCE AFTER MOTION FOR NONSUIT OF DEMURRER TO EVIDENCE;

DISCRETION OF COURT. It is within the sound discretion of the court whether or not it will allow the

case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a

demurrer to the evidence, and the case may be reopened after the court has announced its intention as toits ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the

motion has been granted, if the order has not been written, or entered upon the minutes or signed.

6. ID.; ID.; EVIDENCE ALLOWABLE AFTER DIRECT PROOFS. After the parties have produced their

respective direct proofs, they are allowed to offer rebutting evidence only, but the court, for good reasons,

in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will

not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong & Co. v. Ylagan, 43

Phil., 393; U. S. v. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly

discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the

evidence is to correct evidence previously offered.

7. ID.; LANGUAGE; KNOWLEDGE OF TESTATOR NEED NOT BE EXPRESSED IN WILL; PROOF "ALIUNDE."

There is no statutory requirement that the testators understanding of the language used in the will be

expressed therein. It is a matter that may be established by proof aliunde.

In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what

purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in

Balayan, Batangas, on March 3, 1947, almost six months after the document in question was executed. In

the court below, the present appellant specified five grounds for his opposition, to wit: (1) that the


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deceased never executed the alleged will; (2) that his signature appearing in said will was a forgery; (3)

that at the time of the execution of the will, he was wanting in testamentary as well as mental capacity

due to advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required

by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was

procured by duress, influence of fear and threats and undue and improper pressure and influence on the

part of the beneficiaries instituted therein, principally the testators sister, Clemencia Lopez, and the

herein proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo

erred in holding that the document Exhibit "A" was executed in all particulars as required by law." To this

objection is added the alleged error of the court "in allowing the petitioner to introduce evidence that

Exhibit "A" was written in a language known to the decedent after petitioner rested his case and over the

vigorous objection of the oppositor."cralaw virtua1aw library

The will in question comprises two pages, each of which is written on one side of a separate sheet. The

first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect.

The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of

preventing the substitution or of detecting the loss of any of its pages. (Abangan v. Abangan, 40 Phil., 476.)

In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied

by other forms of identification more trustworthy than the conventional numeral words or characters. The

unnumbered page is clearly identified as the first page by the internal sense of its contents considered in

relation to the contents of the second page. By their meaning and coherence, the first and second lines on

the second page are undeniably a continuation of the last sentence of the testament, before the

attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page

contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in

full use of his testamentary faculty, all of which, in the logical order of sequence, precede the direction

for the disposition of the makers property. Again, as page two contains only the two lines above

mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other

sheet can not by any possibility be taken for other than page one. Abangan v. Abangan, supra, and

Fernandez v. Vergel de Dios, 46 Phil., 922 are decisive of this issue.

Although not falling within the purview and scope of the first assignment of error, the matter of the

credibility of the witnesses is assailed under this heading. On the merits we do not believe that the

appellants contention deserves serious consideration. Such contradictions in the testimony of the

instrumental witnesses as are set out in the appellants brief are incidents not all of which every one of the

witnesses can be supposed to have perceived, or to recall in the same order in which they occurred.

"Everyday life and the result of investigations made in the field of experimental psychology show that thecontradictions of witnesses generally occur in the details of a certain incident, after a long series of

questionings, and far from being an evidence of falsehood constitute a demonstration of good faith.

Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in

relating their impressions they should not agree in the minor details; hence, the contradictions in their

testimony." (People v. Limbo, 49 Phil., 99.)

The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was

that the testator was suffering from "partial paralysis." While another in testators place might have

directed someone else to sign for him, as appellant contends should have been done, there is nothing


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curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his

will. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is

satisfied if the signature is made by the testators mark. (De Gala v. Gonzales and Ona, 53 Phil., 108; 28 R.

C. L., 117.)

With reference to the second assignment of error, we do not share the opinion that the trial court

committed an abuse of discretion in allowing the appellant to offer evidence to prove knowledge of

Spanish by the testator, the language in which the will is drawn, after the petitioner had rested his caseand after the opponent had moved for dismissal of the petition on the ground of insufficiency of evidence.

It is within the discretion of the court whether or not to admit further evidence after the party offering the

evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. (64

C.J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case to be

reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to

the evidence, and the case may be reopened after the court has announced its intention as to its ruling on

the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been

granted, if the order has not been written, or entered upon the minutes or signed. (64 C.J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced their respective direct

proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good

reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its

ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong & Co. v.

Ylagan, 43 Phil., 393; U. S. v. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is

newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of

the evidence is to correct evidence previously offered. (I Morans Comments on the Rules of Court, 2d ed.,

545; 64 C.J., 160-163.) The omission to present evidence on the testators knowledge of Spanish had not

been deliberate. It was due to a misapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns the will for its silence on the

testators understanding of the language used in the testament. There is no statutory requirement that

such knowledge be expressly stated in the will itself. It is a matter that may be established by proof

aliunde. This Court so impliedly ruled in Gonzales v. Laurel, 46 Phil., 781, in which the probate of a will

written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was

not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region,

from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect."cralaw

virtua1aw library

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is

affirmed, with costs.


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[G.R. No. L-5826. April 29, 1953. ]

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO v. PELAGIO CAGRO, ET AL

SYLLABUS

1. WILLS; ATTESTATION CLAUSE; LACK OF SIGNATURES OF ATTESTING WITNESSES AT BOTTOM OF

ATTESTATION CLAUSE, IS FATAL DEFECT. Inasmuch as the signatures of the three witnesses to the willdo not appear at the bottom of the attestation clause, although the page containing the same is signed by

the witnesses on the left-hand margin, the will is fatally defective. The attestation clause is "a

memorandum of the facts attending the execution of the will" required by law to be made by the attesting

witnesses, and it must necessarily bear their signatures.

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar,

admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan,

Samar, on February 14, 1949.

The main objection insisted upon by the appellants is that the will is fatally defective, because its

attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the

three witnesses to the will do not appear at the bottom of the attestation clause, although the page

containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a

memorandum of the facts attending the execution of the will" required by law to be made by the attesting

witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be

considered as an act of the witnesses, since the omission of their signatures at the bottom thereof

negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin

conform substantially to the law and may be deemed as their signatures to the attestation clause. This is

untenable, because said signatures are in compliance with the legal mandate that the will be signed on the

left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom

thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion

and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered

with costs against the petitioner and appellee.


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G.R. Nos. L-3272-73 November 29, 1951

MANUEL GONZALES vs. MANOLITA GONZALES DE CARUNGCONG, petitioner-appellee;

ALEJANDRO GONZALES, JR., and JUAN GONZALES, oppositors-appellants.

SYLLABUS

1. WILLS; ATTESTATION CLAUSE MADE BY TESTATOR AND SIGNED BY WITNESSES, SUBSTANTIALLY

COMPLIES WITH LAW. An attestation clause made by the testator himself more than by the

instrumental witnesses, but signed by the latter right under the signature of the testator, substantially

complies with the requirements of law.

2. ID.; ID.; STATEMENT OF SHEETS OR PAGES IN BODY OF WILL HELD SUFFICIENT WHEN CONSIDERED IN

CONNECTION WITH ATTESTATION CLAUSE. The statement in the penultimate paragraph of the will as to

the number of the sheets or pages used is sufficient attestation which may be considered in conjunction

with the last paragraph which was herein held as the attestation clause. The law does not require the

attestation to be contained in a single clause.

3. ID.; TESTAMENTARY CAPACITY; TESTIMONY OF ATTENDING PHYSICIAN PREVAILS OVER THAT OFTESTAMENTARY WITNESSES. Where the family physician attended the testatrix during her last illness

and saw her on the day when the alleged document of revocation was executed, the testimony of the

attesting witnesses tending to imply that the testatrix was of sound mind at the time said document was

executed, cannot prevail over the contrary testimony of the attending physician.

On November 27, 1948, Manuel Ibarra Vda. de Gonzales (hereafter to be referred to as testatrix) died at

the age of about seventy-eight years, leaving five children, namely, Alejandro Gonzales, Leopoldo

Gonzales, Manolita Gonzales de Carungcong, and Juan Gonzales. The estate left by her is estimated at

P150,000.chanroblesvirtualawlibrary chanrobles virtual law library

On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition (Special

Proceeding No. 837) for the probate of an alleged will executed by the testatrix on November 16, 1942

(Exhibit B-Manuel Gonzales), devising to Manuel Gonzales the greater portion of the estate, without

impairing the legitimes of the other children.chanroblesvirtualawlibrary chanrobles virtual law library

On December 31, 1948, Manolita G. de Carungcong filed in the same court a petition (Special Proceeding

No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945 (Exhibit 1-

Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the estate, without

impairing the legitimes of the other children.chanroblesvirtualawlibrary chanrobles virtual law library

In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the willsexecuted on November 16, 1942, and May 5, 1945, on the ground that, assuming their validity, they had

been revoked by the testatrix in an instrument executed by her on November 18, 1948 (Exhibit 2-

Alejandro and Juan Gonzales), with the result that her estate should be distributed as if she died

intestate.chanroblesvirtualawlibrary chanrobles virtual law library

With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions to one or

the other instruments tending to negative their respective positions.chanroblesvirtualawlibrary chanrobles

virtual law library


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After a joint hearing, the Court of First Instance of Rizal rendered a decision with the following dispositive

pronouncements:

All facts considered in the light of the evidence presented and in the manner in which the witnesses

testified the court concludes and holds: chanrobles virtual law library

First: That Exhibit B - Manuel Gonzales, though validly executed on November 16, 1942, was

revoked by Exhibit 1-Manolita G. Carungcong in accordance with the provisions of section 623 of the Code

of Civil Procedure.chanroblesvirtualawlibrary chanrobles virtual law library

Second: That Exhibit 2 - Alejandro and Juan Gonzales being executed without the knowledge and

testamentary capacity of the testatrix and being contrary to the provisions of section 618 of the Code of

Civil Procedure, the said document is hereby declared null and void.chanroblesvirtualawlibrary chanrobles

virtual law library

Third: That Exhibit 1 - Manolita G. Carungcong having been executed in accordance with law the

same is hereby declared as the true and last will and testament of the deceased Manuela Ibarra Viuda de

Gonzales, and said will is hereby admitted probate.

From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan Gonzales

have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to pay the

proportionate share of the printing cost of the record on appeal.chanroblesvirtualawlibrary chanrobles

virtual law library

In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of the

following form and tenor:

IKALABING-DALAWA. Na ang aking HULING BILIN AT TESTAMENTONG ito ay binubuo ng PITONG (7) dahon

o pagina na may bilang na sunud-sunod at ang bawa't dahon o pagina ay mayroong tunay kong lagda o

firma, gayon din ang lahat ng aking saksi o testigos.chanroblesvirtualawlibrary chanrobles virtual law

library

SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite, Filipinas

ngayong ika-5 ng Mayo ng taong 1945, na nakaharap dito sa ating paglagda o pagfirma ang tatlong saksi o

testigos. At aking ding nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat at bawa't dahon o pagina

nitong testamento kong ito sa harap ng lahat at bawa't isang saksi o testigos at ang lahat at bawa't isa

naman sa kanila ay nangagsilagda o nagsifirma din dito bilang saksi ko sa harap ko at sa harap ng lahat at

bawa't isa sa kanila, at ganoon din silang mga saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa ng

lahat at bawa't isa sa mga dahon o pagina nitong aking testamento.

(Sgd.) MANUELA Y. VDA. DE GONZALES

MANUELA IBARRA VDA. DE GONZALES

Mga Saksi o Testigos:

(Sgd.) BIENVENIDO DE LOS REYES

(Sgd.) TAHIMIK T. SAYOC

(Sgd.) LUIS GAERLAN


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It is contended for the appellants that this will does not contain any attestation clause; that, assuming the

concluding paragraph to be the attestation clause, it is not valid because it is the act of the testatrix and

not of the witnesses, and because it does not state the number of sheets or pages of the

will.chanroblesvirtualawlibrary chanrobles virtual law library

In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R. No. L-3497, decided May, 1951 * we

sustained, finding a precedent in Aldaba vs. Roque, 43 Phil., 378, an attestation clause made by the

testator and forming part of the body of the will. Through Mr. Justice Bautista, we held:

The clause above quoted is the attestation clause referred to in the law which, in our opinion, substantiall