FEDERICO AZ AOLA vs .
CESARIO SINGSON
SECOND DIVISION
[G.R. No. L-14003. August 5, 1960.]
FEDERICO AZAOLA, petitioner-appellant, vs. CESARIO SINGSON,
oppositor-appellee.
F. Lavides and L. B. Alcuaz for appellant.
Vicente J. Cuna and P. S. Singson for appellee.
SYLLABUS
1.
WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF;
REQUISITE AS TO NUMBER OF WITNESSES. Since the authenticity of the
holographic will was not contested, proponent was not required to produce more
than one witness; but even if the genuineness of the holographic will were
contested, Article 811 of our present Civil Code cannot be interpreted as to
require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied. Since no
witness may have been present at the execution of a holographic will, none
being required by law, it becomes obvious that the existence of witnesses
possessing the requisite qualications is a matter beyond the control of the
proponent.
2.
ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE.
Where the will is holographic, no witness need be present and the rule
requiring production of three witnesses must be deemed merely permissive if
absurd results are to be avoided.
3.
ID.; RESORT TO EXPERT EVIDENCE. Under Article 811, the resort
to expert evidence is conditioned by the words "if the Court deem it necessary",
which reveals that what the law deems essential is that the Court should be
convinced of the will's authenticity.
DECISION
REYES, J. B. L., J :
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This appeal, taken on points of law from a decision rendered on 15 January
1958 by the Court of First Instance of Quezon City in its Special Proceedings No.
Q-2640, involves the determination of the quantity of evidence required for the
probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App.
pp. 22-24):
"Briey speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13
Luskot, Quezon City, known to be the last residence of said testatrix; that
Francisco Azaola, petitioner herein for probate of the holographic will,
submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola
was made the sole heir as against the nephew of the deceased Cesario
Singson; that witness Francisco Azaola testied that he saw the holographic
will (Exh. C) one month, more or less, before the death of the testatrix, as
the same was handed to him and his wife; that the witness testied also that
he recognized all the signatures appearing in the holographic will (Exh. C) as
the handwriting of the testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special power of attorney (Exh. F),
and the general power of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an adavit (Exh. G-2), and that there were
further exhibited in court two residence certicates (Exhs. H and H-1) to
show the signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testied that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing therein are the signatures of the testatrix; that said
witness, in answer to a question of his counsel admitted that the
holographic will was handed to him by the testatrix, "apparently it must have
been written by her" (t.s.n., p. 11). However, on page 16 on the same
transcript of the stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and handwriting of the
deceased Fortunata Vda. de Yance, he answered positively in the armative
and when he was asked again whether the penmanship referred to in the
previous answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would denitely say it is hers"; that it was also
established in the proceedings that the assessed value of the property of
the deceased in Luskot, Quezon City, is in the amount of P7,000.00."
The opposition to the probate was on the ground that (1) the execution of the will
was procured by undue and improper pressure and inuence on the part of the
petitioner and his wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually written either on the
5th or 6th day of August 1957 and not on November 20, 1956 as appears on the
will.
The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested; and
because the lone witness presented by the proponent "did not prove suciently
that the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: rst, that he was not bound to produce more than
one witness because the will's authenticity was not questioned; and second, that
Article 811 does not mandatorily require the production of three witnesses to
identify the handwriting and signature of a holographic will, even if its authenticity
should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
"ART. 811.
In the probate of a holographic will, 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 of
such witnesses shall be required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to. (691a)"
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but even if the
genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present Civil Code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of witnesses possessing
the requisite qualications is a matter beyond the control of the proponent. For it is
not merely a question of nding and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not so express) "that the will and
the signature are in the handwriting of the testator". There may be no available
witness acquainted with the testator's hand; or even if so familiarized, the
witnesses may be unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility. That is evidently the
reason why the second paragraph of Article 811 prescribes that
"in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to."
As can be seen, the law foresees the possibility that no qualied witness may be
found (or what amounts to the same thing, that no competent witness may be
willing to testify to the authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was derived from
the rule established for ordinary testaments (cf. Cabang vs. Delnado, 45 Phil., 291;
Tolentino vs. Francisco, 57 Phil. 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of ordinary testaments,
precisely because the presence of at least three witnesses at the execution of
ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (Art. 10), and the rule requiring production
of three witnesses must be deemed merely permissive if absurd results are to be
avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words
"if the Court deem it necessary", which reveal that what the law deems essential is
that the Court should be convinced of the will's authenticity. Where the prescribed
number of witnesses is produced and the court is convinced by their testimony that
the will is genuine, it may consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting experts.
The duty of the court, in ne, is to exhaust all available lines of inquiry, for the state
is as much interested as the proponent that the true intention of the testator be
carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of
1889, the noted Commentator, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely
remarks:
"La manera como est concebida la redaccin del ltimo apartado de
dicho precepto induce la conclusin de que siempre o por lo menos, en la
mayor parte de los casos, el Juez debe acudir al criterio pericial para que le
ilustre acerca de la autenticidad del testamento olgrafo, aunque ya estn
insertas en los autos del expediente las declaraciones testicales. La
prudencia con que el Juez debe de proceder en resoluciones de
transcendencia as lo exige, y la ndole delicada y peligrosa del testamento
olgrafo lo hace necesario para mayor garanta de todos los intereses
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una comrmacin
facultativa del dicho profano de los testigos y un modo de desvanecer las
ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que
trata de averiguar y declarar. Para eso se ha escrito la frase del citado ltimo
apartado, (siempre que el Juez lo estime conveniente), haya habido o no
testigos y dudaran o no estos respecto de los extremos por que son
preguntados.
El arbitrio judicial en este caso debe de formarse con independencia de
los sucesos y de su signicacin, para responder debidamente de las
resoluciones que haya de dictar."
And because the law leaves it to the trial court to decide if experts are still needed,
no unfavourable inference can be drawn from a party's failure to oer expert
evidence, until and unless the court expresses dissatisfaction with the testimony of
the lay witnesses.
Our conclusion is that the rule of the rst paragraph of Article 811 of the Civil Code
is merely directory and is not mandatory.
Considering, however, that this is the rst occasion in which this Court has been
called upon to construe the import of said article, the interest of justice would be
better served, in our opinion, by giving the parties ample opportunity to adduce
additional evidence, including expert witnesses, should the Court deem them
necessary.
In view of the foregoing, the decision appealed from is set aside, and the records
ordered remanded to the Court of origin, with instructions to hold a new trial in
conformity with this opinion. But evidence already on record shall not be retaken.
No costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcin, Barrera, and Gutirrez
David, JJ., concur.
