EN BANC
G.R. No. L-12190
August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased.
FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H.
Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of
heart failure in the University of Santo Tomas Hospital, leaving properties in
Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings
in the Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, substantially in these
words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na
pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan
ay aking ipinamamana sa aking mga kamag-anakang sumusunod:
Vicente Esguerra, Sr.
.............................................
5 Bahagi
Fausto E. Gan
.........................................................
2 Bahagi
Rosario E. Gan
.........................................................
2 Bahagi
Filomena Alto
..........................................................
1 Bahagi
Beatriz Alto
..............................................................
1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba
panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa
kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di
kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang
aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor executed any testament
during her lifetime.
After hearing the parties and considering their evidence,
the Hon. Ramon R. San Jose, Judge,1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to
establish its contents and due execution by the statements in open court of
Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose
testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad
Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a
will. She confided however that it would be useless if her husband discovered
or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad,
who was then preparing for the bar examinations. The latter replied it could be
done without any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra lost no time in
transmitting the information, and on the strength of it, in the morning of
November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad
wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of
Vicente), who was invited to read it. In the afternoon of that day, Felicidad
was visited by a distant relative, Primitivo Reyes, and she allowed him to read
the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a
cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again
in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the
U.S.T. Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap,
her husband, asked Felina for the purse: and being afraid of him by reason of
his well-known violent temper, she delivered it to him. Thereafter, in the same
day, Ildefonso Yap returned the purse to Felina, only to demand it the next day
shortly before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the will for
the last time.2
From the oppositor's proof it appears that Felicidad
Esguerra had been suffering from heart disease for several years before her
death; that she had been treated by prominent physicians, Dr. Agerico Sison,
Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to
the United States wherein for several weeks she was treated for the disease;
that thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she
suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying
the lower floors and of by the Yap spouses. Physician's help was hurriedly
called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly
breathing, lying in bed, her head held high by her husband. Injections and
oxygen were administered. Following the doctor's advice the patient stayed in
bed, and did nothing the whole day, her husband and her personal attendant,
Mrs. Bantique, constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence
for several reasons, the most important of which were these: (a) if according
to his evidence, the decedent wanted to keep her will a secret, so that her
husband would not know it, it is strange she executed it in the presence of
Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the
absence of a showing that Felina was a confidant of the decedent it is hard to
believe that the latter would have allowed the former to see and read the will
several times; (c) it is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when
she precisely wanted its contents to remain a secret during her lifetime; (d)
it is also improbable that her purpose being to conceal the will from her
husband she would carry it around, even to the hospital, in her purse which
could for one reason or another be opened by her husband; (e) if it is true
that the husband demanded the purse from Felina in the U.S.T. Hospital and that
the will was there, it is hard to believe that he returned it without
destroying the will, the theory of the petitioner being precisely that the will
was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to
accept the oppositor's evidence that Felicidad did not and could not have
executed such holographic will.
In this appeal, the major portion of appellant's brief
discussed the testimony of the oppositor and of his witnesses in a vigorous
effort to discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce the court
a quo to change its mind. The oppositor's brief, on the other hand, aptly
answers the criticisms. We deem it unnecessary to go over the same matters,
because in our opinion the case should be decided not on the weakness of the
opposition but on the strength of the evidence of the petitioner, who has the
burden of proof.
The Spanish Civil Code permitted the execution of
holographic wills along with other forms. The Code of Civil Procedure (Act 190)
approved August 7, 1901, adopted only one form, thereby repealing the other
forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic
wills in its arts. 810-814. "A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form and may be made in or out of the
Philippines, and need not be witnessed."
This is indeed a radical departure from the form and
solemnities provided for wills under Act 190, which for fifty years (from 1901
to 1950) required wills to be subscribed by the testator and three credible
witnesses in each and every page; such witnesses to attest to the number of
sheets used and to the fact that the testator signed in their presence and that
they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to
close the door against bad faith and fraud, to prevent substitution of wills,
to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476)
and to avoid those who have no right to succeed the testator would succeed him
and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz.,
1855). However, formal imperfections may be brushed aside when authenticity of
the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3
p. 194.)
Authenticity and due execution is the dominant requirements
to be fulfilled when such will is submitted to the courts for allowance. For
that purpose the testimony of one of the subscribing witnesses would be
sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other
additional witnesses) the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties
of truth and veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and signed by
the hand of the testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of authenticity, and as its own
safeguard, since it could at any time, be demonstrated to be — or not to be —
in the hands of the testator himself. "In the probate of a holographic
will" says the New Civil Code, "it shall be necessary that at least
one witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator.
If the will is contested, at least three such witnesses shall be required. In
the absence of any such witnesses, (familiar with decedent's handwriting) and
if the court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the
execution of the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the testator's
hand. However, the oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who after comparing the will
with other writings or letters of the deceased, have come to the conclusion
that such will has not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony may use its own
visual sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these
means of opposition, and of assessing the evidence are not available. And then
the only guaranty of authenticity3 — the testator's handwriting — has
disappeared.
Therefore, the question presents itself, may a holographic
will be probated upon the testimony of witnesses who have allegedly seen it and
who declare that it was in the handwriting of the testator? How can the
oppositor prove that such document was not in the testator's handwriting? His
witnesses who know testator's handwriting have not examined it. His experts can
not testify, because there is no way to compare the alleged testament with
other documents admittedly, or proven to be, in the testator's hand. The
oppositor will, therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest
and truthful; but they may have been shown a faked document, and having no
interest to check the authenticity thereof have taken no pains to examine and
compare. Or they may be perjurers boldly testifying, in the knowledge that none
could convict them of perjury, because no one could prove that they have not
"been shown" a document which they believed was in the handwriting of
the deceased. Of course, the competency of such perjured witnesses to testify
as to the handwriting could be tested by exhibiting to them other writings
sufficiently similar to those written by the deceased; but what witness or
lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his
statement: he has seen and read a document which he believed was in the
deceased's handwriting. And the court and the oppositor would practically be at
the mercy of such witness (or witnesses) not only as to the execution, but also
as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof
(and probate) of a lost or destroyed will by secondary — evidence the testimony
of witnesses, in lieu of the original document. Yet such Rules could not have
contemplated holographic wills which could not then be validly made here. (See
also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest
objections to the holographic will is that it may be lost or stolen4 — an
implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be
protocoled and presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who depose that
they have no reasonable doubt that the will was written by the testator (Art.
691). And if the judge considers that the identity of the will has been proven
he shall order that it be filed (Art. 693). All these, imply presentation of
the will itself. Art. 692 bears the same implication, to a greater degree. It
requires that the surviving spouse and the legitimate ascendants and
descendants be summoned so that they may make "any statement they may
desire to submit with respect to the authenticity of the will." As it is
universally admitted that the holographic will is usually done by the testator
and by himself alone, to prevent others from knowing either its execution or
its contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but whether
in the face of the document itself they think the testator wrote it. Obviously,
this they can't do unless the will itself is presented to the Court and to
them.
Undoubtedly, the intention of the law is to give the near
relatives the choice of either complying with the will if they think it
authentic, or to oppose it, if they think it spurious.5 Such purpose is
frustrated when the document is not presented for their examination. If it be
argued that such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct disadvantage,
and they have the right and privilege to comply with the will, if genuine, a
right which they should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the
document itself--in the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the
mutilation to the opponents of the will. The aforesaid tribunal declared that,
in accordance with the provision of the Civil Code (Spanish) the will itself,
whole and unmutilated, must be presented; otherwise, it shall produce no
effect.
Considerando que sentado lo anterior, y estableciendose en
el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido
el testamento olografo debera estar escrito todo el y firmado por testador, con
expression del año, mes y dia en que se otorque, resulta evidente que para la
validez y eficacia de esos testamentos, no basta la demostracion mas o menos
cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que
de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se
emplea, se desprende la necesidad de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la Autoridad competente, para au
adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso
es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por
el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio
de las acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto
insubsanable . . . .
This holding aligns with the ideas on holographic wills in
the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on
the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V,
ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ...
annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o
el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel
que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda,
sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o
el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be
compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute
the property of the deceased in accordance with his holographic will, unless
they are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil
Law considers the loss of the holographic will to be fatal. (Planiol y Ripert,
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have
seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we
are empowered to adopt this opinion as a Rule of Court for the allowance of
such holographic wills. We hesitate, however, to make this Rule decisive of
this controversy, simultaneously with its promulgation. Anyway, decision of the
appeal may rest on the sufficiency, rather the insufficiency, of the evidence
presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be
convenient to explain why, unlike holographic wills, ordinary wills may be
proved by testimonial evidence when lost or destroyed. The difference lies in
the nature of the wills. In the first, the only guarantee of authenticity is
the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic
will entails the loss of the only medium of proof; if the ordinary will is
lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince
three witnesses (four with the notary) deliberately to lie. And then their lies
could be checked and exposed, their whereabouts and acts on the particular day,
the likelihood that they would be called by the testator, their intimacy with
the testator, etc. And if they were intimates or trusted friends of the
testator they are not likely to end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account
of the will.
Whereas in the case of holographic wills, if oral testimony
were admissible9 only one man could engineer the fraud this way: after making a
clever or passable imitation of the handwriting and signature of the deceased,
he may contrive to let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for it, and in
court they would in all good faith affirm its genuineness and authenticity. The
will having been lost — the forger may have purposely destroyed it in an
"accident" — the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them need
be signed, the substitution of the unsigned pages, which may be the most
important ones, may go undetected.
If testimonial evidence of holographic wills be permitted,
one more objectionable feature — feasibility of forgery — would be added to the
several objections to this kind of wills listed by Castan, Sanchez Roman and
Valverde and other well-known Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will,
the three subscribing witnesses would be testifying to a fact which they saw,
namely the act of the testator of subscribing the will; whereas in the case of
a lost holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting
itself is not at hand.
Turning now to the evidence presented by the petitioner, we
find ourselves sharing the trial judge's disbelief. In addition to the dubious
circumstances described in the appealed decision, we find it hard to believe
that the deceased should show her will precisely to relatives who had received
nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another point: if she
wanted so much to conceal the will from her husband, why did she not entrust it
to her beneficiaries? Opportunity to do so was not lacking: for instance, her
husband's trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish
and probate a lost holographic will, we think the evidence submitted by herein
petitioner is so tainted with improbabilities and inconsistencies that it fails
to measure up to that "clear and distinct" proof required by Rule 77,
sec. 6.11
Wherefore, the rejection of the alleged will must be
sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista
Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.
