Rogelio C. Lascoa Jr

June 15, 2015

Wills and Succession 2nd Batch1. TORRES vs LOPEZ

G.R. No. L-24569

February 26, 1926

MANUEL TORRES, petitioner-appellant and

LUZ LOPEZ DE BUENO, appellant,

vs.

MARGARITA LOPEZ, opponent-appellee.

FACTS:

1) Tomas Rodriguez died. Manuel Torres, one of the executors named in the will asked that the will of Rodriguez be allowed.

2) Opposition was entered by Margarita Lopez, the first cousin of the deceased on the grounds:

(1) That the testator lacked mental capacity because at the time of senile dementia and was under guardianship;

(2) that undue influence had been exercised by the persons benefited in the document in conjunction with others who acted in their behalf; and

(3) that the signature of Tomas Rodriguez to the document was obtained through fraud and deceit.

3) On certain facts pertaining to the condition of Tomas Rodriguez while he was living and when he made the will:

- Rodriguez had reached the advanced age of 76 years.

- He was suffering from anemia, hernia inguinal, chronic dypsia, and senility. Physically he was a wreck.

4) As to the mental state of Tomas Rodriguez on January 3, 1924:

- Doctors Calderon, Domingo and Herrera admit that he was senile.

- They, together with Doctors De los Angeles, Tietze, and Burke, further declare that his memory however for remote events was generally good. He was given to irrational exclamations symptomatic of a deceased mind.

- While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the patient are "sound, except that his memory is weak," and that in executing the will the testator had full understanding of the act he was performing and full knowledge of the contents thereof.

- Doctors De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they diagnosed his case as senile dementia of the simple type approaching the deteriorated stage.

Lower Court denied the legalization of the will.

ISSUE:

Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will, or had he passed so far along in senile dementia as to require the court to find him of unsound? Will is valid.

RULING:

Applicable Law:

- The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the testator be of "sound mind". A "sound mind" is a "disposing mind."

- One of the grounds for disallowing a will is "If the testator wasinsane or otherwise mentally incapable of the execution."

Definition of testamentary capacity: "'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.'"

- The mental capacity of the testator is determined as of the date of the execution of his will.

Of the specific tests of testamentary capacity:

- neither old age, physical infirmities, feebleness of mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary incapacity. Each case rests on its own facts and must be decided by its own facts.

There is one particular test relative to the capacity to make a will which is of

some practical utility:

- This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the offspring of an unsound mind.On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that all facts may be brought out which will assist in determining the question.

The testimony of subscribing witnesses to a will concerning the testator's mental condition is entitled to great weight where they are truthful and intelligent. The evidence of those present at the execution of the will and of the attending physician is also to be relied upon.

The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document.

Bugnao vs. Ubag Testamentary incapacity does not necessarily require that a person shall actually be insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age, from disease, or great bodily infirmities of suffering, or from all these combined, may render the testator in capable of making a valid will, providing such weakness really disqualifies for from knowing or appreciating the nature, effects, or consequences of the act she is engaged in.

Nagtas vs. Paquio The rule is thus stated:

a) The question is not so much, what was the degree of memory possessed by the testator as had, he a disposing memory? Was he able to remember the property he was about to bequeth the manner of distributing it and the object of his bounty? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will.'

b) While the inability of a person of advanced years to remember recent events distinctly undoubtedly indicates a decay of the human faculties, it does not conclusively establish senile dementia, which is something more than a mere loss of mental power, resulting from old age and is not only a feeble condition of the mind but a derangement thereof. . . .

o The rule is settled in this state that if a testator at the time he executes his will understand the business in which he is engaged and has a knowledge of his property and how he wishes to dispose of it among those entitled to his bounty, he possess sufficient testamentary capacity, notwithstanding his old age, sickness debility of body, or extreme distress.

CASE AT BAR:

Mental Condition:

- Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which the will was executed and to the testator's mental condition.

- The other subscribing witness, also, a physician on the contrary testified to a fact which, if substantiated, would require the court to disallow the will.

- The attending physician and three other eminent members of the medical fraternity, who were present at the execution of the will, expressed opinions entirely favorable to the capacity of the testator.

- As against this we have the professional speculations of three other equally eminent members of the medical profession when the will was executed. The advantage on those facts is all with those who offer the will for probate.

WILL:

- The will was short. It could easily be understood by a person in physical distress.

- It was reasonable, that is, it was reasonable if we take into account the evident prejustice of the testator against the husband of Margarita Lopez.

With special reference of the definition of testamentary capacity, we may say

this:

- On January 3, 1924, Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was engaged.

- He had two conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper places at the bottom and on the left margin.

- At that time the testator recollected the property to be disposed of and the persons who would naturally be supposed to have claims upon him While for some months prior to the making of the will he had not manage his property he seem to have retained a distinct recollection of what it consisted and of his income.

- Occasionally his memory failed him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to entertain a predilection towards Vicente F. Lopez as would be natural since Lopez was nearest in which the instrument distributed the property naming the objects of his bounty. His conversations with Judge Mina disclosed as insistence n giving all of his property to the two persons whom he specified.Tomas Rodriguez may have been of advanced years, may have been physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a guardian and may have a been extremely eccentric, but he still possessed the spark of reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms "testamentary capacity."

Other topic:

There was no undue influence:

Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently became his guardian.

o There is every indication that of all his relatives Tomas Rodriguez reposed the most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno.

o Again, it was Vicente F. Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution of the will.

o This faction of the Lopez family was also a favor through the orders of Doctor Domingo as to who could be admitted to see the patient.It is hard to believe, however, that men of the standing of Judge Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean themselves and so fully their characters and reputation as to participate in a scheme having for its purpose to delude and to betray an old man in his age, rather named was acting according to the best of his ability to assist in a legitimate act in a legitimate manner.

Moreover, considering the attitude of Tomas Rodriguez towardMargarita Lopez and her husband and his apparent enmity toward them, it seems fairly evident that even if the will had been made in previous years when Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document.

TORRES vs LOPEZ

G.R. No. L-24569

February 26, 1926

Topic/Doctrine: Testamentary Capacity and Intent

FACTS:

In 1924, Tomas Rodriguez died in the City of Manila Philippine Islands leaving a considerable estate. Manuel Torres, one of the executors named in the will asked that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of the deceased on the grounds: (1) That the testator lacked mental capacity because at the time of senile dementia and was under guardianship; (2) that undue influence had been exercised by the persons benefited in the document in conjunction with others who acted in their behalf; and (3) that the signature of Tomas Rodriguez to the document was obtained through fraud and deceit.

After a prolonged trial, judgment was rendered denying the legalization of the will. In the decision of the trial judge appeared, among others:

The topics suggested by the assignments of error Testamentary Capacity and Undue Influence will be taken up separately and in order. An attempt will be made under each subject first to make findings of fact quite separate and apart from those of the judge and second to make findings of law and the law by rendering judgment.

I. TESTAMENTARY CAPACITY

FACTS:

For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez designated Vicente F. Lopez as the administrator of his property (Exhibit 7).

On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed by Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while Rodriguez was far from strong on account of his years, he was yet capable of looking after his property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the questions propounded intelligently). At the conclusion of the hearing, an order was declaring Tomas Rodriguez incapacitated to take care of himself and to manage his property and naming Vicente F. Lopez as his guardian.

Tomas Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to remain sick in bed until his death. On the door of the patients room was placed a placard reading No visitors, except father, mother, sisters, and brothers. (Permitted to visit the patient only the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio Araneta ((Exhibit 9). The list did not include the names of Margarita Lopez and her husband Antonio Ventura. Indeed the last named persons experienced considerable difficulty in penetrating in to the room of Rodriguez.

Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital , Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F. Lopez, who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the purpose of securing him to prepare the will

As the witness stated, the will which was prepared by him is identical with that signed by the testator and the attesting witnesses with the single exception of the change of the date from December 31, 1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and simple in terminology.

On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the Philippine General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias Fernando Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs. Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the background.

Not even prior to demise of the deceased, the two actions in the Lopez family had prepared themselves for a fight over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of Nervous and Mental Diseases in the University of the Philippines, as attending physician; as associated with him for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General Hospital and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had arranged to have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses. The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in the University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases; thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled lawyers were available to aid and abet the medical experts. Out of such situations, do will contests arise.

An examination of the certificates made by the two sets of physicians and of their testimony shows that on most facts they concur. Their deductions from these facts disclose a substantial divergence of opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who honestly arrived at definite but contradictory conclusions. The best that we can do under the circumstances is to set forth the findings of the Calderon committed on the hand and of the De Los Angeles committee on the other.

Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before the date when the will was executed. All of them, as we have noticed were, present at the signing of the will to note the reactions of the testator

Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality of Tomas Rodriguez.

Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke. Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the patient of November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case and had visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze and Burke together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians conducted a joint examination result.

Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the treatment record kept daily by the nurses, in which appear the nurses remarks.

On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3, 1924, Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia inguinal, chronic dypsia, and senility. Physically he was a wreck.

As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke, further declare that his memory however for remote events was generally good. He was given to irrational exclamations symptomatic of a deceased mind.

While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the patient are sound, except that his memory is weak, and that in executing the will the testator had full understanding of the act he was performing and full knowledge of the contents thereof, Doctors De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they diagnosed his case as senile dementia of the simple type approaching the deteriorated stage.

The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the testator be of sound mind A sound mind is a disposing mind. One of the grounds for disallowing a will is If the testator was insane or otherwise mentally incapable of the execution. Predicated on these statutory provisions, this court has adopted the following definition of testamentary capacity: 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. The mental capacity of the testator is determined as of the date of the execution of his will (Civil Code, art. 666).

On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that all facts may be brought out which will assist in determining the question. The testimony of subscribing witnesses to a will concerning the testators mental condition is entitled to great weight where they are truthful and intelligent. The evidence of those present at the execution of the will and of the attending physician is also to be relied upon. The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document.

Counsel for the appellee make capital of the testator being under guardianship at the time he made his will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the effect of the judgment is conclusive with respect to the condition of the person. To this statement we cannot write down our conformity. The provisions of the cited section were taken from California, and there the Supreme court has never held what is now urged upon us by the appellee. The rule announced that in some states, by force of statute, the finding of insanity is conclusive as to the existence of insanity during the continuance of adjudication, is found to rest on local statutes, of which no counterpart is found in the Philippines. Even where the question of insanity is out in issue in the guardianship proceedings, the most that can be said for the finding is that it raises a presumption of incapacity to make a will but does not invaluable the testament if competency can be shown. The burden of providing sanity in such case is cast upon the proponents.

It is here claimed that the unsoundness of mind of the testator was the result of senile dementia. This is the form of mental decay of the aged upon which will are most often contested. A Newton, Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient lunacy, would have proved historic subjects for expert dispute. Had Shakespeares King Lear made a will, without any question it would have invited litigation and doubt.

ISSUE:

Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test regarding testamentary capacity and have the proponents of the will carried successfully the burden of proof and shown him to be of sound mind on that date?

II. UNDUE INFLUENCE

FACTS:

The will was attacked on the further ground of undue influence exercised by the persons benefited in the will in collaboration with others. The trial judge found this allegation to have been established and made it one of the bases of his decision

Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F. Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as to who could be admitted to see the patient.

The trial judge entertained the opinion that there existed a preconceived plan on the part of the persons who surrounded Tomas Rodriguez to secure his signature to the testament. The trial judge may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean themselves and so fully their characters and reputation as to participate in a scheme having for its purpose to delude and to betray an old man in his age, rather named was acting according to the best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the attitude of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity toward them, it seems fairly evident that even if the will had been made in previous years when Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document.

One of the grounds for disallowing a will is that it was procured by undue and improper pressure and influence on the art of the beneficiary or some other person for his benefit (Code of Civil Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the testator to do that which is against the will from fear the desire of peace or from other feeling which is unable to resist.

The theory of undue influence is totally rejected as not proved.

HELD:

Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which the will was executed and to the testators mental condition. The other subscribing witness, also, a physician on the contrary testified to a fact which, if substantiated, would require the court to disallow the will. The attending physician and three other eminent members of the medical fraternity, who were present at the execution of the will, expressed opinions entirely favorable to the capacity of the testator. As against this we have the professional speculations of three other equally eminent members of the medical profession when the will was executed. The advantage on those facts is all with those who offer the will for probate.

The will was short. It could easily be understood by a person in physical distress. It was reasonable, that is, it was reasonable if we take into account the evident prejustice of the testator against the husband of Margarita Lopez.

Tomas Rodriguez comprehended the nature of the transaction in which he was engaged. He had two conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper places at the bottom and on the left margin. At that time the testator recollected the property to be disposed of and the persons who would naturally be supposed to have claims upon him. While for some months prior to the making of the will he had not manage his property he seem to have retained a distinct recollection of what it consisted and of his income. Occasionally his memory failed him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to entertain a prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in which the instrument distributed the property naming the objects of his bounty. His conversations with Judge Mina disclosed as insistence on giving all of his property to the two persons whom he specified.

On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a guardian and may have a been extremely eccentric, but he still possessed the spark of reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms testamentary capacity. That in effect is the definite opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing the evidence for the oppositors, and after giving to the case the serious consideration which it deserves.

The judgment of the trial court is set aside and the will of Tomas Rodriguez is admitted to probate without special pronouncement as to costs in this instance.2. SUROZA vs HONRADO

NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.A.M. No. 2026-CFI; December 19, 1981; AQUINO; ChantsFACTS:

1. Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army Fort McKinley, married Marcelina Salvador in 1923

a. They were childless.

b. They reared a boy named Agapito who used the surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera

2. Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government.

a. That explains why on her death she had accumulated some cash in two banks.

3. Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.

a. Agapito also became a soldier. He was disabled and his wifeNenita was appointed as his guardian in 1953 when he was declared an incompetent

4. a woman named Arsenia de la Cruz wanted also to be his guardian in another proceeding.

a. Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito

b. Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as guardian of Agapito

5. Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto, California

6. spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia dela Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter

a. Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano

7. Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old.

a. That will which is in English was thumbmarked by her. She was illiterate.b. Her letters in English to the Veterans Administration were also thumbmarked by her

c. Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

8. Marcelina died on November 15, 1974

a. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-

square meter lot and house in that place. She acquired the lot in 1966

9. On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband) filed a petition for the probate of Marcelina's alleged will

10. Judge Honrado appointed Marina as administratrix

11. Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

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

13. Nenita and the other occupants of the decedent's house filed a motion to set aside the order ejecting them

14. In spite of the fact that Judge Honrado was already apprised that persons, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress

15. Nenita filed in the testate case an omnibus petition; attached was an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore that the alleged will was falsified16. Nenita filed an opposition to the probate of the will and a counter-petition for letters of administration; attached was an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina never executed a will

17. Marina admitted that Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's son but merely an anak-anakan who was not legally adopted

18. Judge Honrado dismissed Nenita's counter-petition

a. Judge Honrado denied the various incidents "raised" byNenita

19. Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the probate proceedings

a. Judge Honrado dismissed it

20. Judge Honrado then closed the testamentary proceeding

21. About ten months later, in a verified complaint filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina.

22. Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and prohibition

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

23. The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari.ISSUE: 1. Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face is void because it is written in English, a language not known to the illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself?HELD:

disciplinary action should be taken against respondent judgerespondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix.

o But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language"

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

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

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

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

vs.

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

AQUINO, J.:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284, Record).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.3. ARTICLES 805-806

Matias v. Salud

L-10751, 23 June 1958 |

FACTS:

The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina Raquel was suffering from herpes zoster that afflicted the right arm and shoulder of the testatrix, which made writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina attempted to sign, but since it was so painful she just managed to thumbmarked the foot of the document and the left margin at each page. The parties opposing the probate of the will contended that the will was void due to the irregularities in the execution thereof. One of the points raised by the oppositors was that the finger mark can not be regarded as the decedents valid signature as it does not show distinct identifying ridgelines. And since the finger mark was an invalid signature, there must appear in the attestation clause that another person wrote the testators name at his request.ISSUE: W/N the will was valid.HELD:

YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as to require dexterity thatcan be expected of very few persons; testators should not be required to possess the skill of trained officers. And as to the validity of the thumbprints as signature, the SC held that it has been held in a long line of cases that a thumbprint is

always a valid and sufficient signature for the purpose of complying with the requirement of the article. Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. A thumbprint is considered as a valid

and sufficient signatureIN RE PROBATE OF THE WILL OF GABINA RAQUEL, deceased,AUREA MATIAS,

Petitioner-Appellant,

- versus

BASILIA SALUD,

Oppositor-Appellee.

G. R. NO. L-10751Appeal 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 of Modesta 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:ATESTIGUAMIENTO

Nosotros, Modesta Gonzales, Felipe Zabala y Lourdes

Samonte, por la presente certificamos que este Testamento

compueto de tres (3) paginas utiles fue otorgado como la

ultima voluntad y testament de Gavina Raquel, quien ha

suscrito y firmado en su margen izquierdo y al pie del

mismo, en presencia de todos y cada uno de nosotros, y

tambien nosotros hemos firmado y atestiguado este

testamento compuesto de tres (3) paginas cada uno en

presencia de otros y en la de la testadora, en su margen

izquierdo y al pie del atestiguamiento.

(SGD) MODESTA GONZALES (SGD) FELIPE SAMALA

(SGD) LOURDES SAMONTE

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, attorney Agbunag, 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.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 nonproduction 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 the testament 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 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 an authentic 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 xSpeculations 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 it provides 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 thatthe 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 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 this opinion. Costs against appellees.4. ARTICLES 805-806

Garcia v. Lacuesta

90:489 | CastilloFACTS:

This case involves the will of Antero Mercado, which among other defects was signed by the testator through a cross mark (anX). The will was signed by Atty. Javier who wrote the name of Mercado as testator and the latter allegedly wrote a cross mark after his name. The CFI allowed the will but the CA disallowed it because its attestation clause was defective for failing to certify 1) that the will was signed by Atty. Javier at the express direction of the testator, 2) that the testator wrote a cross at the end of his name after Atty. Javier signed for him, and 3) that the 3 witnesses signed the will in the presence of the testator and of each other.ISSUE:

Whether the will should be allowed despite the defect of the attestation clause since the testator had placed a cross mark

himself as his signature.HELD:

The attestation clause is fatally defective for failing to state that Mercado directed Javier to write the testators name under his express direction. Petitioners argument that such recital is unnecessary because the testator signed the will himself using a cross mark which should be considered the same as a thumb-mark (which has been held sufficient in past cases) is not acceptable. A cross mark is not the same as a thumb mark, because the cross mark does not have the same trustworthiness of a thumb mark.G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,

vs.

JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

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

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

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

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

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

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

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

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

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.5. Barut v. Cabacungan

21:461 | CasuelaDoctrine: .. it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other.Facts:

1. This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria Salomon, deceased.

Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said will Pedro Barut received the larger part of decedent's property.

2. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds, among them that a later will had been executed by the deceased. The will referred to as being a later will is the one involved in another case No. 6284.

3. In the case before us the probate court found that the will was not entitled to probate upon the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was alleged to be.

Issue:

Does the difference in the handwriting of the one who alleged to sign in the name of testatrix looked more the handwriting of one of the other witness render the will invalid despite the will being attested and subscribed by three witnesses?

HELD:

No.

1. The Supreme Court does not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by Severo Agayan at her request and in her presence and in the presence of all the witnesses to the will.

It is immaterial who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the witnesses to the execution of the will.2. The high court does not believe that this contention of the probate courtn can be sustained. Section 618 of the Code of Civil Procedure reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his expenses direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each. . . .

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. i. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. It may be wise as a practical matter that the one who signs the testator's name signs also his own; but that it is not essential to the validity of the will. Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be signed by another by express direction to any instrument known to the law. The main thing to be established in the execution of the will is the signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he actually signs.3. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which the statute expressly declares is valid.4. Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever why the will involved in the present litigation should not be probated. The due and legal execution of the will by the testatrix is clearly established by the proofs in this case.

As to the defense of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We there held that said later will not the will of the deceased.

Decision: The judgment of the probate court must be and is hereby reversed

and that court is directed to enter an order in the usual form probating the will

involved in this litigation.FACTS:

Barut applied for the probate of the will of deceased, MariaSalomon. The testatrix stated in the will that being unable to read or write, the will was read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix. The probate was contested by a number of the relatives of the deceased on various grounds. The probate court found that the will was not entitled to probate because the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than to the person whose handwriting it was alleged to be (i.e. The probate court denied probate because the signature seemed to not have been by Severo Agayan but by another witness).ISSUE:

Was the dissimilarity in handwriting sufficient to deny probate of the will?HELD:

No. The SC found that the mere dissimilarity in writing is sufficient to overcome the uncontradicted testimony of all the

witnesses that the signature of the testatrix was written by Severo Agayan. It is also immaterial who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the witnesses to the execution of the will. Based on Section 618 of the Code of Civil Procedure, it is clear that with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of 3 witnesses and that they attested and subscribed it in her presence and in the presence of each other. It may be wise that the one who signs the testators name signs also his own; but that is not essential to the validity of the will. The court also held that the 3 cases cited by the lower court was not applicable. In those cases, the person who signed the will for the testator wrote his own name instead of the testators, so that the testators name nowhere appeared in the will, and were thus wills not duly executed.G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.

FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284,1 just decided by this court, wherein there was an application for the probate of an alleged last will and testament of the same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said will Pedro Barut received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds, among them that a later will had been executed by the deceased. The will referred to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the probate of this later will were pending at the time. The evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by Severo Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is immaterial who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will it is necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed below that of the testatrix as the person who signed her name, being, from its appearance, not the same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his expenses direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each. . . .

This is the important part of the section under the terms of which the court holds that the person who signs the name of the testator for him must also sign his own name The remainder of the section reads:

The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. That is all the statute requires. It may be wise as a practical matter that the one who signs the testator's name signs also his own; but that it is not essential to the validity of the will. Whether one parson or another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the statute relating to the execution of wills do not in any sense require such a provision. From the standpoint of language it is an impossibility to draw from the words of the law the inference that the persons who signs the name of the testator must sign his own name also. The law requires only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be signed by another by express direction to any instrument known to the law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign his own name also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as would enable a person proving the document to demonstrate more readily the execution by the principal. But as a matter of essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the case last above stated gives an indication of what all of cases are and the question involved in each one of them. It says:

The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the will. Held, That the will was not duly executed.