Vitug v. Court of AppealsFacts:1. The case is a chapter in an earlier suit involving the issue on two (2) wills of the late Dolores Vitug who died in New York, USA in Nov 1980. She named therein private respondent Rowena Corona (Executrix) while Nenita Alonte was co-special administrator together with petitioner Romarico pending probate.2. In January 1985, Romarico filed a motion asking for authorization of the probate court to sell shares of stocks and real property of the estate as reimbursements for advances he made to the estate. The said amount was spent for payment of estate tax from a savings account in the Bank of America.3. Rowena Corona opposed the motion to sell contending that from the said account are conjugal funds, hence part of the estate. Vitug insisted saying that the said funds are his exclusive property acquired by virtue of a survivorship agreement executed with his late wife and the bank previously. In the said agreement, they agreed that in the event of death of either, the funds will become the sole property of the survivor.4. The lower court upheld the validity of the survivorship agreement and granted Romarico's motion to sell. The Court of Appeals however held that said agreement constituted a conveyance mortis causa which did not comply with the formalities of a valid will. Further, assuming that it is donationinter vivos, it is a prohibited donation. Vitug petitioned to the Court contending that the said agreement is an aleatory contract.Issue: Whether or not the conveyance is one ofmortis causahence should conform to the form required of willsRuling: NO.The survivorship agreement is a contract which imposed a mere obligation with a term--being death. Such contracts are permitted under Article 2012 on aleatory contracts. When Dolores predeceased her husbandm the latter acquired upon her death a vested right over the funds in the account. The conveyance is therefore notmortis causa.

BALTAZAR vs. LAXAFACTS: 1. Paciencia was a 78 year old spinster when she made her last will and testament entitled Tauli Nang Bilin o Testamento Miss Paciencia Regala(Will) in the Pampango dialect . 2. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. 3. Paciencia expressed in the presence of the instrumental witnesses that the document is her last will and testament. She thereafter affixed hersignature at the end of the said document on page s and then on the left margin of pages 1, 2 and 4 thereof. 4. The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills due execution by affixing their signatures below its attestation clause and on the left margin of pages 1, 2 and 4 thereof, in the presence of Paciencia and of one another and of Judge Limpin who acted as notary public. 5. Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna Lorella Laxa and Katherine Ross Laxa, 6. The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as his own mother. Paciencia lived with Lorenzos family in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his birth. Six days after the execution of the Will or on September 19, 1981, Paciencia left for the United States of America (USA). There, she resided with Lorenzo and his family until her death on January 4, 1996. 7. In the interim, the Will remained in the custody of Judge Limpin. More than four years after the death of Paciencia , Lorenzo filed a petitionwith the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of Administration in his favour. 8. Petitioners filed an Amended Opposition asking the RTC to deny the probate of Paciencias Will on the following grounds: a. the Will was not executed and attested to in accordance with the requirements of the law; b. Paciencia was mentally incapable to make a Will at the time of its execution; c. she was forced to execute the Will under duress or influence of fear or threats; d. the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; e. signature of Paciencia on the Will was forged; f. assuming the signature to be genuine, it was obtained through fraud or trickery; and, g. that Paciencia did not intend the document to be her Will. 9. Simultaneously, petitioners filed an Opposition and Recommendation reiterating their opposition to the appointment of Lorenzo as administrator of the properties and requesting for the appointment of Antonio in his stead. ISSUE: Whether Paciencia was not of sound mind at the time the will was allegedly executed. RULING: The state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will. Forgetfulness is not equivalent to being ofunsound mind. Besides, Article 799 of the New Civil Code states: To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature ofthe estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. Bare allegations of duress or influence of fear or threats, undue and improper influence and pressure, fraud and trickery cannot be used as basis to deny the probate of a will. Here, there was no showing that Paciencia was publicly known to be insane one month or less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial evidence was presented by them to prove the same, thereby warranting the CAs finding that petitioners failed to discharge such burden. Furthermore, the Court is convinced that Paciencia was aware of the nature of her estate to be disposed of, the proper objects of her bounty and the character of the testamentary act.

Suroza vs. Honrado10 SCRA 388 Succession Will Should be Written in a Language Known to the TestatorIn 1973, Marcelina Suroza supposedly executed a notarial will bequeathing herhouse and lotto a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as the executrix in the said will and she petitioned before CFI Rizal that the will be admitted to probate. The presiding judge, Honrado admitted the will to probate and assigned Paje as the administratrix. Honrado also issued an ejectment order against the occupants of thehouse and lotsubject of the will.Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was confined in the Veterans Hospital), learned of the probate proceeding when she received the ejectment order (as she was residing in saidhouse and lot).Nenita opposed the probate proceeding. She alleged that the said notarial will is void because (a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still alive and is the compulsory heir, (c) the notarial will is written in English a language not known to Marcelina because the latter was illiterate so much so that she merely thumbmarked the will, (d) the notary public who notarized will admitted that Marcelina never appeared before him and that he notarized the said will merely to accommodate the request of a lawyer friend but with the understanding that Marcelina should later appear before him but that never happened.Honrado still continued with the probate despite the opposition until testamentary proceeding closed and the property transferred to Marilyn Sy.Nenita then filed this administrative case against Honrado on the ground of misconduct.ISSUE:Whether or not Honrado is guilty of misconduct for admitting into probate a void will.HELD:Yes. Despite the valid claim raised by Nenita, he still continued with the testamentary proceeding, this showed his wrongful intent. He may even be criminally liable for knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance.The will is written in English and was thumb marked by an obviously illiterate Marcelina. This could have readily been perceived by Honrado that that the will is void. In the opening paragraph of the will, it was stated that English was a language understood and known to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and translated into Filipino language. That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Had Honrado been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting to Marilyn Sy as sole heiress and giving nothing at all to Agapito who was still alive.Honrado was fined by the Supreme Court.

Payad vs. TolentinoFACTS Victorio Payad filed a petition for the probate of the will of the decedent Leoncia Tolentino. This was opposed by Aquilina Tolentino, averring that said Will was made only after the death of the testatrix. The lower court denied the probate of the will on the ground that the attestation clause was not in conformity with the requirements of the law since it was not stated therein that the testatrix caused Atty. Almario to write her name at her express direction. Hence, this petition.ISSUE Was it necessary that the attestation clause state that the testatrix caused Atty. Almario to write her name at her express direction?HELD - The evidence of record establishes the fact the Leoncia Tolentino, assisted by Attorney Almario, placed her thumb mark on each and every page of the questioned will and that said attorney merely wrote her name to indicate the place where she placed said thumb mark. In other words Attorney Almario did not sign for the testatrix. She signed by placing her thumb mark on each and every page thereof. "A statute requiring a will to be 'signed' is satisfied if the signature is made by the testator's mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It is clear, therefore, that it was not necessary that the attestation clause in question should state that the testatrix requested Attorney Almario to sign her name inasmuch as the testatrix signed the will in question in accordance with law.Garcia v. Lacuesta

Facts:

1. The CA disallowed the probate of the will of Antero Mercado dated Jan 1943. The said will was written in Ilocano dialect.

2. The will appears to have been signed by Atty. Florentino Javier who wrote the name of the testator followed below by 'A ruego del testador' and the name of Florentino Javier. In effect, it was signed by another although under the express direction of the testator. This fact however was not recited in the attestation clause. Mercado also affixed a cross on the will.

3. The lower court admitted the will to probate but this order was reversed by the Court of Appeals on the ground that the attestation failed to recite the facts surrounding the signing of the testator and the witnesses.

Issue: Whether or not the attestation clause in the will is valid

HELD: NO the attestation is fatally defective for its failure to state that Antero or the testator caused Atty. Javier to write the former's name under his express direction as required by Sec. 618 of the Civil Procedure. Finally,on the cross affixed on the will by the testator, the Court held that it is not prepared to liken the mere sign of a cross to a thumbmark for obvious reasons- the cross does not have the trustworthiness of a thumbmark so it is not considered as a valid signature.

Barut vs. CabacunganFacts:

1.Pedro Barut applied for the probate of the will of Maria Salomon. It is alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907. The said will was witnessed by 3 persons. From the terms it appears that the petitioner received a larger part of decedent's property. After this disposition, the testatrix revoked all other wills and stated that since she is unable to read nor write, the will was read to her and that she has instructed Severino Agapan, one of the witnesses to sign her name in her behalf.

2. The lower court ruled that the will is not entitled to probate on the sole ground that the handwriting of the person who signed the name of the testatrix does not appear to be that of Agapan but that of another witness.

Issue: Whether or not a will's validity is affected when the person instructed by a testator to write his name did not sign his name

HELD: No, it is immaterial who wrote the name of the testator provided it is written at her request and in her present, and in the presence of the witnesses. This is the only requirement under Sec. 618 of the Civil Code of procedure at that time.

Icasiano vs. Icasiano G.R. No. L-18979 June 30, 1964Facts: 1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his appointment as executor thereof. It appears from the evidence that the testatrix died on September 12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it was prepared in duplicates, an original and a carbon copy. 2. On the day that it was subscribed and attested, the lawyer only brought the original copy of the will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign one of the pages in the original copy but admitted he may have lifted 2 pages simultaneously instead when he signed the will. Nevertheless, he affirmed that the will was signed by the testator and other witnesses in his presence. Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to a page is sufficient to deny probate of the will RULING: No, the failure to sign was entirely through pure oversight or mere inadvertence. Since the duplicated bore the required signatures, this proves that the omission was not intentional. Even if the original is in existence, a duplicate may still be admitted to probate since the original is deemed to be defective, then in law, there is no other will bu the duly signed carbon duplicate and the same can be probated. The law should not be strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she has no control of. Where the purpose of the law is to guarantee the identity of the testament and its component pages, and there is no intentional or deliberate deviation existed. Note that this ruling should not be taken as a departure from the rules that the will should be signed by the witnesses on every page. The carbon copy duplicate was regular in all respects.

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Abangan v Abangan

FACTS: Trial Court admitted Ana Abangans probate. The will is described in the following manner: First sheet: Contains all the disposition of the testatrix. Signed at the bottom by Martin Montalban (in the name and under the direction of Ana Abangan) Signed by three witnesses Second sheet: Contains only the attestation clause. Duly signed by the same three witnesses at the bottom. Was not signed by the testatrix herself Anastacia Abangan (different person) et al. appealed from this decision. She says that the probate should have been denied on three grounds: Neither of the sheets were signed on the left margin by the testatrix and the three witnesses The pages were not numbered by letters It was written in a dialect that the testatrix did not understand.

Issue: WON the probate should have been admitted.Ruling: Yes. The trial court was correct in admitting the probate.

1. Re: signing on the left marginThe object of Act 2645, which requires that every sheet should be signed on the left margin, is only to avoid the substitution of any sheet, thereby changing the dispositions of the testatrix.- Act 2645 only took into consideration cases of wills written on several sheets, which did not have to be signed at the bottom by the testator and the witnesses.- But when the dispositions are duly written only on one sheet, and signed at the bottom by the testator and the witnesses, the signatures on the left would be purposeless.- If the signatures at the bottom already guarantee its authenticity, another signature on the left margin would be unnecessary.- This interpretation of Act 2645 also applies to the page containing the attestation clause (the second sheet). Such a signature on the margin by the witnesses would be a formality not required by the statute.- It is also not required that the testatrix sign on the attestation clause because the attestation, as its name implies, appertains only to the witnesses and not the testator since the testator does attest, but executes the will.2. Re: Page numbering- Act 2645s object in requiring this was to know whether any sheet of the will has been removed.- But when all the dispositive parts of the will are written on one sheet only, the object of the Act 2645 disappears because the removal of this single sheet although unnumbered, cannot be hidden.3. Re: dialect- The circumstance appearing in the will itself that the same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough to presume that the will was written in a dialect that the testator knew, absent any proof to the contrary.

Testate Estate of Cagro vs. CagroG.R. L-5826

Facts:1. The case is an appeal interposed by the oppositors from a decision of the CFI of Samar which admitted to probate a will allegedly executed by Vicente Cagro who died in Pambujan, Samar on Feb. 14, 1949.

2. The appellants insisted that the will is defective because the attestation was not signed by the witnesses at the bottom although the page containing the same was signed by the witnesses on the left hand margin.

3. Petitioner contended that the signatures of the 3 witnesses on the left hand margin conform substantially to law and may be deemed as their signatures to the attestation clause.

Issue: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the facts attending the execution of the will. It is 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 negatives their participation.

Moreover, the signatures affixed on the let hand margin is not substantial conformance to the law. The said signatures were merely in conformance with the requirement that the will must be signed on the left-hand margin of all its pages. If the attestation clause is unsigned by the 3 witnesses at the bottom, it would be easier to add clauses to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

The probate of the will is denied.

Nera v. RimandoG.R. L-5971 February 27, 1911Ponente: Carson, J.:

'Test of Presence'

Facts:1. At the time the will was executed, in a large room connecting with a smaller room by a doorway where a curtain hangs across, one of the witnesses was in the outside room when the other witnesses were attaching their signatures to the instrument.

2. The trial court did not consider the determination of the issue as to the position of the witness as of vital importance in determining the case. It agreed with the ruling in the case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing witnesses was in the outer room while the signing occurred in the inner room, would not be sufficient to invalidate the execution of the will.

3. The CA deemed the will valid.

Issue: Whether or not the subscribing witness was able to see the testator and other witnesses in the act of affixing their signatures.

HELD: YESThe Court is unanimous in its opinion that had the witnesses been proven to be in the outer room when the testator and other witnesses signed the will in the inner room, it would have invalidated the will since the attaching of the signatures under the circumstances was not done 'in the presence' of the witnesses in the outer room. The line of vision of the witness to the testator and other witnesses was blocked by the curtain separating the rooms.

The position of the parties must be such that with relation to each other at the moment of the attaching the signatures, they may see each other sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or not they actualy saw each other sign but whether they might have seen each other sign if they chose to doso considering their physical, mental condition and position in relation to each other at the moment of the inscription of the signature.

Cruz v. VillasorG.R. L-32213 November 26, 1973Ponente: Esguerra, J.:

Facts:1. The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument was executed without the testator having been informed of its contents and finally, that it was not executed in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged. Despite the objection, the lower court admitted the will to probate on the ground that there is substantial compliance with the legal requirements of having at least 3 witnesses even if the notary public was one of them.

Issue: Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

HELD: NO.The will is not valid. The notary public cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and 'before' means in front of or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear before the other to acknowledge his participation int he making of the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.

Javellana vs. LedesmaG.R. No. L-7179

Facts:1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Ledesma in July 1953. This testament was deemed executed on May 1950 and May 1952. The contestant was the sister and nearest surviving relative of the deceased. She appealed from this decision alleging that the will were not executed in accordance with law.

2. The testament was executed at the house of the testatrix. One the other hand, the codicil was executed after the enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a notary public. Now, the contestant, who happens to be one of the instrumental witnesses asserted that after the codicil was signed and attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on the same occasion. Gimotea, however, said that he did not do so, and that the act of signing and sealing was done afterwards.

2. One of the allegations was that the certificate of acknowledgement to the codicil was signed somewhere else or in the office of the notary. The ix and the witnesses at the hospital, was signed and sealed by the notary only when he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the absence of the testator and witnesses affects the validity of the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the testator, the witnesses and the notary be accomplished in one single act. All that is required is that every will must be acknowledged before a notary public by the testator and witnesses. The subsequent signing and sealing is not part of the acknowledgement itself nor of the testamentary act. Their separate execution out of the presence of the testator and the witnesses cannot be a violation of the rule that testaments should be completed without interruption.

Cruz v. VillasorG.R. L-32213 November 26, 1973Ponente: Esguerra, J.:

Facts:1. The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument was executed without the testator having been informed of its contents and finally, that it was not executed in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged. Despite the objection, the lower court admitted the will to probate on the ground that there is substantial compliance with the legal requirements of having at least 3 witnesses even if the notary public was one of them.

Issue: Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

HELD: NO.The will is not valid. The notary public cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and 'before' means in front of or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear before the other to acknowledge his participation int he making of the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.

Testate Estate of SuntayFacts:This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manilaon November 1929, and the alleged last willand testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay.The value of the estate left by the deceased is more than P50,000.On 14 May 1934Jose B. Suntay, a Filipino citizen and resident ofthe Philippines, died in the city ofAmoy, Fookien province, Republicof China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the firstmarriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose,Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedingswere instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration wereissued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15 October 1934the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to havebeen executed and signed in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of theloss of said will after the filing of the petition and before thehearing thereof and of the insufficiency of the evidence to establish the lossof the said will. An appeal wastaken from said order denying the probate of thewill and this Court held the evidence beforethe probatecourt sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings(63 Phil., 793). In spite ofthe fact that a commission from the probatecourt was issued on 24 April1937 for the taking ofthe depositionof Go Toh, an attesting witness to the will, on7 February 1938 the probate court denieda motion for continuance of the hearing sent by cablegram from China by the surviving widowand dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy districtcourt, Province of Fookien, China, Silvino Suntay filed a petition in theintestate proceedings praying for the probate of thewill executedin the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).

Issue: (1) W/N thw lost will can be probated; (2) W/N a willprobated in China can be acknowledged in the Philippines.

Ruling: (1) NO. As to the lost will, section 6, Rule 77, provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have beenin existence at the time ofthe death of the testator, oris shown to have beenfraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by thejudge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.

(2) As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides: Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Courtof First Instance in the Philippines. Section 2 provides: When a copy of such willand the allowance thereof, duly authenticated, is filed with a petition for allowance inthe Philippines, by the executor or otherperson interested, in the court having jurisdiction, such court shall fix atime and place for thehearing, and cause notice thereof to be given as in case of an original willpresented for allowance. Section 3 provides: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived ofhis right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chineselaw of procedure in probate matters, it may bepresumed that the proceedings in the matter of probating or allowing a will in theChinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties inthe case were known to reside in the Philippines.

The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24February 1948). The proceedings had in the municipal districtcourt of Amoy, China, may be likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to allinterested parties and the proceedings were heldat the back ofsuch interested parties.In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript ofproceedings held in the municipal district court of Amoy, China, cannot bedeemed and accepted as proceedings leading to theprobator allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country.

Ortega v.Valmonte

FACTS:Two years after the arrival of Placido from the United States and at the age of 80 he wed Josefina who was then 28 years old. But in a little more than two years of wedded bliss, Placido died. Placido executed a notarial last will and testament written in English and consisting of 2 pages, and dated 15 June 1983but acknowledged only on 9 August 1983. The allowance to probate of this will was opposed by Leticia, Placidos sister. According to the notary public who notarized the testators will, after the testator instructed him on the terms and dispositions he wanted on the will, the notary public told them to come back on 15 August 1983 to give him time to prepare. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by his wife to come back on 9 August 1983. The formal execution was actually on 9 August 1983. He reasoned he no longer changed the typewritten date of 15 June 1983 because he did not like the document to appear dirty. Petitioners argument: 1. At the time of the execution of the notarial will Placido was already 83 years old and was no longer of sound mind. 2. Josefina conspired with the notary public and the 3 attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the execution and the attestation of the will.

ISSUE: 1. W/N Placido has testamentary capacity at the time he allegedly executed the will. 2. W/N the signature of Placido in the will was procured by fraud or trickery.

HELD:

1. YES. Despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them and even their location. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. The omission of some relatives from the will did not affect its formalvalidity. There being no showing of fraud in its execution, intent in its disposition becomes irrelevant.

2. NO. Fraud is a trick, secret devise, false statement, or pretense, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for fraud, he would not have made. The party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud. Omission of some relatives does not affect the due execution of a will. Moreover, the conflict between the dates appearing on the will does not invalidate the document, because the law does not even require that a notarial will be executed and acknowledged on the same occasion. The variance in the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public and instrumental witnesses.