G. R. Nos. L-3087 and L-3088. July 31, 1954

This is a motion for reconsideration of the decision promulgated on
31 July 1954 affirming the decree of the Court of First Instance of
Bulacan which disallowed the alleged last will and testament executed
in November 1929 and the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without
pronouncement as to costs, on grounds that will presently be taken up
and discussed. Appellant points to an alleged error in the decision
where it states that—

* * * This petition was denied because of the loss
of said will after the filing of the petition and before the hearing
thereof, * * *

because according to him the “will was lost before not after (the)
filing of the petition.” This slight error, if it is an error at all,
does not, and cannot, alter the conclusions and pronouncements made in
the judgment rendered in the case. In his alternative petition the
appellant alleges:

4. That on October 15, 1934, Maria Natividad

Lim Billian, the mother of herein petitioner filed a petition in
this court for the allowance and probate of a last will and testament
executed, and signed in the Philippines in the year 1929 by said
deceased Jose B. Suntay. (P. 3, amended record on appeal.)

If such last will and testament was already lost or destroyed at the
time of the filing of the petition by Maria Natividad Lim Billian (15
October 1934), the appellant would have so stated and alleged. If
Anastacio Teodoro, a witness for the appellant, is to be believed when
he testified—

* * * that one day in November 1934 (p. 273, t.s.n.,
hearing of 19 January 1947), * * * Go Toh arrived at his law office in
the De los Reyes Building and left an envelope wrapped in red
handkerchief “Exhibit C” (p. 32, t.s.n., hearing of 13 October 1947);

and—

If the will was snatched after the delivery thereof
by Go Ton to Anastacio Teodoro and return by the latter to the former
because they could not agree on the amount of fees, * * *

then on 15 October 1934, the date of the filing of the petition, the
will was not yet lost. And if the facts alleged in paragraph 5 of the
appellant’s alternative petition which states:

That this Honorable Court, after hearing, denied the aforesaid
petition for probate filed by Maria Natividad Lim Billian in view of
the loss and/or destruction of said will subsequent to the filing of said petition and prior
to the hearing thereof, and the alleged insufficiency of the evidence
adduced to establish the loss and/or destruction of the said will,
(Italics supplied. P. 3, amended record on may be relied upon, then the
alleged error pointed out by the appellant, if it is an error, is due
to the allegation in said paragraph of his alternative petition. Did
the appellant allege the facts in said paragraph with reckless abandon?
or; did as which the appellant make the allegation erroneously as that
he made in paragraph 10 of the alternative petition that “his will
which was lost and ordered probated by our Supreme Court in
G.R. No. 44276, above referred to?” (P. 7, amended record on appeal.)
This Court did not order the probate of the will in said case because
if it did, there would have been no further and subsequent proceedings
in the case after the decision of this Court referred to had been
rendered and had become final. Be that as it may, whether the loss of
the will was before or subsequent to the filing of the petition, as
already stated, the fact would not affect in the slightest degree the
conclusions and pronouncements made by this Court.

The appellant advances the postulate that the decision of this Court in the case of Lim Billian vs. Suntay, G.R. No. 44276, 63 Phil. 793, constitutes res judicata on these points: (a) that only one will was prepared by attorney Barretto, and (b)
that the issue to be resolved by the trial court was whether the draft
(Exhibit B) is a true copy or draft of the snatched will, and contends
that these points already adjudged were overlooked in the majority
opinion. The decision of this Court in the case referred to does not
constitute res judicata on the points adverted to by the
appellant. The only point, decided in that case is that “the evidence
is sufficient to establish the loss of the document contained in the
envelope.”

In the opinion of this Court, this circumstance justified “the
presentation of secondary evidence of its contents and of whether it
was executed with all the essential and necessary legal formalities.”
That is all that was decided. This Court further said:

The trial of this case was limited to the proof of
loss of the will, and from what has taken place we deduce that it was
not petitioner’s intention to raise, upon the evidence adduced by her,
the other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of the will and whether the
latter was executed with all the formalities required by law for its
probate. The testimony of Alberto Barretto bears importantly in this
connection. (P. 796, supra.)

Appellant’s contention that the question before the probate court
was whether the draft (Exhibit B) is a true copy or draft of the
snatched will is a mistaken interpretation and view of the decision of
this Court in the case referred to, for if this Court did make that
pronouncement, which,, of course, it did not, such pronouncement would
be contrary to law and would have been a grievous and irrep3rable
mistake, because what the Court passed upon and decided in that case,
as already stated, is that there was sufficient evidence to prove the
loss of the will and that the next step was to prove by secondary
evidence its due execution in accordance with the formalities of the
law and its contents, clearly and distinctly, by the testimony of at
least two credible witnesses.^[1]

The appellant invokes Rule 133 to argue that Rule 77 should not have
been applied to the case but the provisions of section 623 of the Code
of Civil Procedure (Act No. 190), for the reason that this case had
been commenced before the Rules of Court took effect. But Rule 133
cited by the appellant provides:

These rules shall take effect on July 1, 1940.

They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending,
except to the extent that in the opinion of the court their application
would not be feasible or would work injustice, in which event the
former procedure shall apply. (Italics supplied.)

So, Rule 77 applies to this case because it was a further
proceedings in a case then pending. But even if section 623 of the Code
of Civil Procedure were to be applied, still the evidence to prove the
contents and due execution of the will and the fact of its unauthorized
destruction, cancellation, or obliteration must be established “by full
evidence to the satisfaction of the Court.” This requirement may even
be more strict and exacting than the two-witness rule provided for in
section 6, Rule 77. The underlying reason for the exacting provisions
found in section 623 of Act No. 190 and section. 6, Rule 77, the
product of experience and wisdom, is to prevent impostors from
foisting, or at least to make for them difficult to foist, upon probate
courts alleged last wills or testaments that were never executed.

In commenting unfavorably upon the decree disallowing the lost will,
both the appellant and the dissenting opinion suffer from an infirmity
born of a mistaken premise that all the conclusions and pronouncements
made by the probate court in the first decree which allowed the probate
of the lost will of the late Jose B. Suntay must be accepted by this
Court.

This is an error. It must be borne in mind that this is not a
petition for a writ of certiorari to review a judgment of the Court of
Appeals on questions of law where the findings of fact by said Court
are binding upon this Court. This is an appeal from the probate court,
because the amount involved in the controversy exceeds 50,000, and this
Court in the exercise of its appellate jurisdiction must review the
evidence and the findings of fact and legal pronouncements made by the
probate court. If such conclusions and pronouncements are unjustified
and erroneous this Court is in duty bound to correct them. Not long
after entering the first decree the probate had court was convinced
that it/committed a mistake, so it set aside the decree and entered
another. This Court affirmed the last decree not precisely upon the
facts found by the probate court but upon facts found by it after a
careful review and scrutiny of the evidence, parole and documentary.
After such review this Court has found that the provisions of the will
had not been established clearly and distinctly by at least two
credible witnesses and that conclusion is unassailable because it is
solidly based on the established facts and in accordance with law.

The appellant and the dissent try to make much out of a pleading
filed by five (5) children and the widow of Apolonio Suntay, another
child of the deceased by the first marriage, wherein they state that—

* * * in answer to the alternative petition filed in
these proceedings by Silvino Suntay, through counsel, dated June 18,
1947, to this Honorable Court respectfully state that, since said
alternative petition seeks only to put into effect the testamentary
disposition and wishes of their late father, they have no opposition
thereto. (Pp. 71-72, amended record on appeal.)

Does that mean that they were consenting to the probate of the lost
will? Of course not. If the lost will sought to be probated in the
alternative petition was really the will of their late father, they, as
good children, naturally had, could have, no objection to its probate.
That is all that their answer implies and means. But such lack of
objection to the probate of the lost will does not relieve the
proponent thereof or the party interested in its probate from
establishing its due execution and proving clearly and distinctly the
provisions thereof by at least two credible witnesses. It does not mean
that they accept the draft Exhibit B as an exact and true copy of the
lost will and consent to its probate. Far from it. In the pleading
copied in the dissent, which the appellant has owned and used as
argument in the motion for reconsideration, there is nothing that may
bolster up his contention. Even if all the children were agreeable to
the probate of said lost will, still the due execution of the lost will
must be established and the provisions thereof proved clearly and
distinctly by at least two credible witnesses, as provided for in
section 6, Rule 77. The appellant’s effort failed to prove what is
required by the rule. Even if the children of the deceased by the first
marriage, out of generosity, were willing to donate their shares in the
estate of their deceased father or parts thereof to their step mother
and her only child, the herein appellant, still the donation, if
validly made, would not dispense with the proceedings for the probate
of the will in accordance with section 6, Rule 77, because the former
may convey by way of donation their haires in the estate of their
deceased father or parts thereof to the latter only after the decree
disallowing the will shall have been rendered and. shall have become
final. If the lost will is allowed to probate there would be no room
for such donation except of their respective shares in the probated
will.

The part of the deposition of Go Toh quoted in the motion for
reconsideration which appellant underscores does not refer to Go Toh
but to Manuel Lopez. Even if Go Toh heard Manuel Lopez read the draft
(Exhibit B) for the purpose of checking it; up with the original held
and read by Jose1 B. Suntay, Go Toh could not have understood the
provisions of the will because he knew very little of the Spanish
language in which the will was written (answers to 22nd and 23rd
interrogatories and to X-2 cross-interrogatory). In fact, he testifies
in his deposition that all he knows about the contents of the lost will
was revealed to him by Jose B. Suntay at the time it was execute:
(answers to 25th interrogatory and. to X-4 and X-8
cross-interrogatories); that Jose B. Suntay told him that the contents
thereof are the same as those of the draft [Exhibit B] (answers to 33rd
interrogatory and to X-S cross-interrogatory); that Mrs. Suntay had the
draft of the will (Exhibit B) translated into Chinese and he read the
translation (answer to the 67th interrogatory); that he did not read
the will and did not compare it (check it up) with the draft [Exhibit
B] (answers to X-6 and X-20 cross-interrogatories). We repeat that—

* * *all of Go Ton’s testimony by deposition on the
provisions of the alleged lost will is hearsay, because he came to know
or he learned of them from information given him by Jose B. Suntay and
from reading the translation of the draft (Exhibit B) into Chinese.
This finding cannot be contested, and assailed.

The appellant does not understand how the Court came to the
conclusion that Ana Suntay, a witness for the appellant, could not have
read the part of the will on adjudication. According to her testimony
“she did not read the whole will but only the adjudication,” which,
this Court found, “is inconsistent with her testimony in chief (to the
effect) that after Apolonio read that portion, then he turned over the
document to Manuel, and he went away.” (P. 526, t.s.n., hearing of 24
February 1947.) And appellant asks the question: “Who went away? Was it
Manuel or Apolonio?” In answer to his own question the appellant says:
“The more obvious inference is that it was Apolonio and not Manuel who
went away.” This inference made by the appellant not only is not
obvious but it is also illogical, if it be borne in mind that Manuel
came to the house of Apolonio and it happened that Ana was there,
according to her testimony. So the sentence “he went away” in Ana’s
testimony must logically and reasonably refer to Manuel, who was a
caller or visitor in the house of his brother Apolonio and not to the
latter who was in his house. If it was Apolonio who “went away,”
counsel for the appellant could have brought that out by a single
question. As the evidence stands could it be said that the one who went
away was Apolonio and not Manuel? The obvious answer is that it was
Manuel. That inference is the result of a straight process of reasoning
and clear thinking.

There is a veiled insinuation in the dissent that Alberto Barretto
testified as he did because he had been paid by Federico C. Suntay the
sum of P16,000. Federico C. Suntay testifies on the point thus—

 

Q	You mentioned in your direct testimony that you paid certain amount to Atty. Alberto Barretto for services rendered, how much did you pay?
A	Around SIXTEEN THOUSAND (P16,000.00).
Q	When did you make the payment?
A	During the Japanese time.
Q	Did you state that fact in any accounts you presented to the Court?
A	I do not quite remember that.

* * * (P. 180, t.s.n., hearing of 24 October 1947.)

Q	When you made that payment, was (it) your intention to charge it to the estate or to collect it later from the estate?
A	Yes, sir.
Q	More or less when was such payment made, during the Japanese time, what particular month and year, do you remember?
A	I think in 1942.
Q	And you said you paid him because of services he rendered?
A	Upon the order of the Court.
Q	And those services were precisely because he made a will and he made a will which was lost, the will of Jose Suntay?

* * * (P. 161, t.s.n., supra.)

A	I think if I remember correctly according to ex-Representative Vera who is the administrator whom I followed at that time, that was paid according to the services rendered by Don Alberto Barretto with regard to our case in the testamentaria but he also rendered services to my father.
Q	At least your Counsel said that there was an order of the Court ordering you to pay that, do you have that copy of the order?
A	Yes, sir, I have, but I think that was burned. (P. 14, t.s.n., supra.)

So the sum of P16,000 was paid upon recommendation of the former
administrator and order of the probate court for services rendered by
Alberto Barretto not only in the probate proceedings but also for
services rendered to his father. But if this sum of P16,000 paid to
Alberto Barretto upon recommendation of the previous administrator and
order of the probate court for professional services rendered in the
probate proceedings and to the deceased in his lifetime be taken
against his truthfulness and veracity as to affect adversely his
testimony, what about the professional services of Anastacio Teodoro
who appeared in this case as one of the attorneys for the
petitioner-appellant? (P. 2, t.s.n., hearing of 13 October 1947.) Would
that not likewise or by the same token affect his credibility Is not
the latter’s interest more compelling than the former’s? For the
foregoing reasons, the motion for reconsideration is denied.

Paras, C.J., Pablo, Bengzon, Montemayor, Reyes, A., Jugo, Labrador, and Concepcion, JJ., concur

Mr. Justice Bautista Angelo and Mr. Justice J. B. L. Reyes took no part.

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DISSENTING

PARAS, C.J.:

For the same reason and considerations set forth in detail in my
dissent promulgated on July 31, 1954, I vote to grant the motion for
reconsideration

I concur in the above dissent.