TESTATE ESTATE OF VITO BORROMEO.  JOSE H. JUNQUERA, PETITIONER-APPELLEE, VS. CRISPIN BORROMEO, ET AL., OPPOSITORS-APPELLANTS, REPUBLIC OF THE PHILIPPINES, INTERVENOR-APPELLANT.

Vito Borromeo,
a widower and permanent resident of the City of Cebu, died on March 13, 1952, in Parañaque, Rizal, at the age of 88 years, without forced heirs but leaving extensive
properties in the province
of Cebu.

On April 19 of the same
year, Jose H. Junquera filed with the Court of First
Instance of said province a petition for the probate of a one page document as
the last will left by said deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo,
in equal and undivided shares, and designating Junquera
as executor thereof (Special Proceedings No. 916-R).  The document – now in the record as Exhibit
“A” – was dated May 17, 1945, drafted in Spanish, and allegedly signed
and thumb-marked by said deceased, in the presence of Dr. Cornelio G. Gandionco, Eusebio Cabiluna and Feliberto Leonardo
as attesting witnesses.

On June 14,
1952, the probate
court appointed Junquera as special administrator of
the estate.

On November 14 of the
same year, Teofilo Borromeo
filed an opposition to the probate of the will based on the follow­ing
grounds:  (1) that the formalities
required by law had not been complied with; (2) that the testator was mentally
in capable of making a will
at the time of its execution; (3) that the will was procured by undue and
improper influence, on the part of the beneficiaries and/or some other person;
(4) that the signature of the testator was procured by fraud; and (5) that the
testator acted by mistake or did not intend the instrument he signed to be his
will at the time he affixed his signature thereto.

Upon motion of the abovenamed oppositor, on June
9, 1953, the Court removed Junquera as special administrator and
appointed Dr. Patricio Beltran in his place.

On November 27, 1953,
Vitaliana Borromeo, a niece
of the deceased, filed her own opposition to the probate of the will, on the
ground that the signature “Vito Borromeo”
appearing thereon was a forgery.  Other
oppositions were subsequently filed by Patrocinio Borromeo de Tabotabo (her
opposition was later withdrawn), Lilia Morre de Tabotabo, Lamberto Morre, Patricia Morre de Ranario, Aurora Morre de Borromeo, Ramon Ocampo, Isagani Morre and Rosario Morre, invoking substantially the same grounds mentioned
heretofore.

Meanwhile, Tomas, Amelia and Fortunato Borromeo, mani­festly on behalf of the”Cebu
Arcade Company, T. L. Borromeo y Cia.”
a duly organized partnership controlled by them, filed a motion to exclude from
the inventory of the Estate previously filed by the new special administrator,
thirteen parcels of land situated in the City of Cebu
with a total area of 2,148 square meters, alleging that during his lifetime the
deceased testator had sold said lots to them, as evidenced by the do­cument now in the record as
Exhibit F-1 executed on May 17, 1945, confirming the alleged previous
sale.  After due hearing, the courts in its order of July 16, 1954, denied
the motion for exclusion, ruling that movants’ remedy
was to file a separate accion reivindicatoria against the administrator.

On October 28, 1955, the Republic
of the Philippines filed a motion for leave to intervene and join the oppositors in contesting the probate of the will, on the ground that, should the estate be adjudicated the latter by
intestacy, it stood to collect a considerable amount by way of estate and
inheritance taxes.  In its order of
December 10 of the same year, the Court allowed the intervention.

After a prolonged trial,
on May 28, 1960, the Court rendered a decision denying the probate of the will
and declaring itself without jurisdiction to pass upon the question of
ownership over the thirteen lots which the Cebu
Arcade etc. claimed as its own.  All the
parties appealed – the proponents of the will from the portion of the decision
denying probate, and the oppositors and the Republic of
the Philippines, from that portion thereof where the court refused to decide the
question of ownership of the thirteen lots already mentioned.

The proponents of the disputed will, mainly with the testimony of
the three attesting witnesses, Cornelio Gandionco, Filiberto Leonardo and Eusebio Cabiluna, sought to prove the following facts:

In the morning of May 17, 1945, Tomas Borromeo,
complying with the request of Vito Borromeo, went to
the house of Atty. Filiberto Leonardo to request him
to be a witness at the execution of the latter’s last will.  Dr. Cornelio Gandionco,
who at the time happened to be in the house of Leonardo, was likewise requested
to act as such. Together, the three went to the residence of Vito Borromeo at Ramos Street, Cebu
City.  Upon their arrival the third
witness, Eusebio Cabiluna,
who was living on the ground floor of the house, was asked to come
upstairs.  Thereafter, in their presence,
Vito Borromeo executed first, the document Exhibit
“F” (deed of confirmation of an alleged previous sale to Cebu Arcade Company, T. L. Borromeo
y Cia.) witnessed by Gandionco
and Cabiluna. 
Later, Vito Bor­romeo, being of sound and
disposing mind, and without pressure or influence exerted on him, dictated the
substance of his will to Tomas Borromeo, who in turn
typewrote it in proper legal language. 
The document was then read by Vito Borromeo,
who later signed and thumbmarked it (Exhibit
“A”) and carbon copies thereof (Exhibits “E” and
“K”) in the presence of the attesting witnesses, who, in-turn, signed
the will and its copies in the presence of Vito Borromeo
and of each other.

Proponents also placed the Rev. Fr. Julio Corres,
a Spanish Catholic priest who was the confessor of Vito Borromeo
from 1942 to 1946, the Rev. Fr. Sergio Alfafara, who
was his confessor from 1946 to 1947, and Vicenta Mañacap, a mid-wife who lived in the testator’s house and
had served him from May 1945 up to his death on March 30, 1952, on the witness
stand.  The gist of their testimony is to
the effect that at the time of the execution of the will, Vito Borromeo was still strong and could move around freely with
the aid of a cane; that he was still mentally alert and was a man of strong
will; that his right hand was unimpaired and he could write with it unaided;
that as a matter of fact – according to Vicente Mañacap
– he still wrote personal letters to Tomas Borromeo,
could eat by himself and even played the piano.

On the other hand, the oppositors
presented several witnesses who testified that the signatures purporting to be those
of Vito Borromeo on the document Exhibit
“A” and its copies were forgeries; that they were too good and too
perfect signatures and, therefore, quite impossible for the deceased – an ailing man already 82 years old on May
17, 1945 – to write; that he was found “positive for bacillus
leprosy” by Dr. Antonio Garcia as early as 1926 or 1927, having been
treated for it con­sistently by injections of chaulmoogra oil administered by
Dr. Max Borromeo and Dr. Cornelio Gandionco;
that Vito Borromeo’s usual signatures during his
better days had always been charac­terized by certain flourishes, technically
called “rubric”; that Vito Borromeo had
also reared and educated two of the op­positors,
Crispin Borromeo and the late Teofilo
Borromeo and there was no conceivable reason why they
were left out in the will, if any such will had really been made by him
knowingly; that the testamentary witness, Cornelio Gandionco,
is a nephew of the other witness, Filiberto Leonardo,
and was the fiance of Angeles Borromeo,
a sister of Tomas Borromeo, one of the insti­tuted
heirs; that the third testamentary witness, Eusebio Cabi­luna is the real father of Fortunato
Borromeo, another instituted heir, who admittedly
grew up and was reared by Vito Borromeo and his wife
Juliana Evangelista since he was barely three months; that Amelia Borromeo, the third instituted heir, is a younger sister of
Tomas Borromeo and dependent upon him; that on May
17, 1945, the deceased’s leprosy was so far advanced that the fingers of his
right hand were already hardened and atrophied, this making it difficult, if
not impossible, for him to write; and that on the same date, his sense of
hearing and his eyesight had been considerably impaired, his eyes being always
watery due to the progress of his leprosy.

The oppositors also presented Felipe
Logan of the National Bureau of Investigation and Jose G. Villanueva, as
handwriting experts, who testified, after examining the supposed signatures of
the deceased in Exhibit “A” and comparing them with his accepted standard
signatures, that the questioned signatures were forgeries.  The proponents, however, presented their own
handwriting expert, Martin Ramos, who testified to the contrary.

The trial court refused to believe the testimony of the attesting
witnesses and, as a result, denied the petition for probate, because, in its
opinion, they appeared not to be “wholly disinterested persons” and
because of the serious dis­crepancies in their testimonies with respect to the
number of copies made of the disputed document. 
The court also found that
the physical condition of the deceased at the time of the execution of the
questioned document was such that it was highly improbable, if not impossible,
for him to have affixed his sig­natures on the documents Exhibits A, E and K in the spontaneous and excellent manner they appear to have been written.  Thus,
the court was also led to believe the testimony of the hand­writing experts for
oppositors, – adverse to the genuiness
of the signatures of Vito Borromeo on the questioned
document more than that of the handwriting expert presented by the pro­ponents
of the will.

It seems clear,
therefore, that the main issue to be decided in the present appeal is whether
or not the evidence of record is
sufficient to prove the due
execution of the will in question.

It must be conceded that in this jurisdiction, the subscribing
witnesses to a contested will
are regarded as the best wit­nesses in connection with its due execution.  It is
similarly true, however, that to deserve full credit, their testimony
must be reasonable and unbiased, and that, as in the case of any other witness,
their testimony may be overcome by any competent evidence – direct or
circumstantial (Board etc. vs. Shasser, 10 Kan. 585;
168 Pac. 836  [1917]).

It is also an appellate practice of long standing in this
jurisdiction to accord great weight to the findings of fact made by the trial
court and not to disturb them unless said court had failed to consider material
facts and circumstances or had given undue weight to, or misconstrued the
testimony of parti­cular witnesses, the reason for this being that the trial
judge had full opportunity to hear and observe the conduct and demeanor of the
witnesses while testifying and was consequently in a better position than the reviewing court to determine the
question of their credibility.  While
this is not applicable to the present case because His Honor, the judge who
penned the appealed decision was not the same judge before whom the evidence of
the parties was presented, it must be stated that, judging from the carefully
written decision under review, it was only after a thorough study of the record
that His Honor arrived at the conclusion that the subscribing witnesses do not appear to be wholly
disinterested persons.

On the matter of the number of copies made of the questioned will
allegedly signed by the testator and the three subscribing witnesses, His Honor
found that Cabiluna was very uncertain and confused;
that at a certain stage of his examination, he said that only two copies
of the will were prepared – the original and one carbon copy – while at another
stage he affirmed that he did not know whether or not there was a duplicate and
that all he could say was that he had affixed his signature three times
(Transcript, Marquiala, August 22, 1953 pp.
49-50).  In truth, however, he really
signed six (6) times – twice on the original and twice on each of the two
copies.  Adding confusion to the situation is the answer he gave when he was
asked if Vito Borromeo also signed the carbon copy,
to which his answer was “I did not see” (Idem, p. 50).

On the other hand, the other subscribing witness, Atty. Filiberto Leonardo, testified categorically that there were
only the original and one carbon copy of the will and that the testator and all
the subscribing witnesses signed both (Transcript, Marquiala,
December 23, 1953, pp. 167, 210, and 218). 
However, the naked and highly disturbing fact is that, contrary to what is
inferable from the vacillating testimony of
Cabiluna and the categorical assertion of Atty.
Leonardo, the proponents of the questioned will themselves presented three
copies of said will:  the original, a
carbon duplicate copy and a carbon
triplicate copy, now in the record as Exhibits A, E and K, respectively.

While it is true that the testimony of these subscribing
witnesses was given around eight years after the alleged execution of the
questioned will, still we believe that the transaction in which they claim to
have taken an important part is of such character and importance that it can not be a very
easy matter for anyone of them to have a hazy recollection of the number of
copies signed by the testator and by them. 
Stranger still would it be for them to say something in open contradiction
with the reality on the matter.  If, as
may be clearly deduced from their testimony – Cabiluna
and Leonardo’s -, there was only the original and one copy signed by the
testator and the subscribing witnesses, why is it that three – original
and two copies – were really in existence and were produced in court during the
trial?

In the case of the third subscribing witness, Dr. Cornelio Gandionco, the imputation was made by two witnesses, Dr. Teofilo Borromeo and Judge
Crispin Borromeo, that he was the fiancé of Angeles Borromeo, sister of Tomas Borromeo,
who is one of the three heirs instituted in the questioned will, evidently to
show that he is not a completely disinterested witness.  The evidence to this effect appears to have
remained unimpeached, although the proponents of the
will could have done it by calling on Dr. Gandionco
himself or on Angeles Borromeo to deny the
imputation.

Moreover, the evidence also discloses that Dr. Gandionco was the uncle of the other subscribing witness,
Atty. Leonardo, and that, in fact, they were living together at the time of the
alleged execution of the will.  This
circumstance – apparently trivial – can not be taken lightly because in view of appellee’s
claim that Angeles Borromeo was the fiancé of Dr. Gandionco, it would not be unreasonable to entertain the
suspicion that both subscribing witnesses were not wholly disinterested.  Material to this point is the fact
established by the evidence that Atty. Leonardo was the notary public before
whom the document Exhibit 4-A – which purports to convey to a partnership
con­trolled by the heirs instituted in the questioned will thirteen parcels of
land situated in the commercial center of Cebu City –
was supposedly acknowledged by the testator on the same date May 17, 1945.

In the light of the foregoing, We can
not see our way clear to holding that the trial court erred in refusing to give
full credit to the testimony of the three subscribing witnesses.

It has also been held that the condition and physical appearance
of a questioned document constitute a valuable factor which, if correctly
evaluated in the light of surrounding cir­cumstances, may help in determining
whether it is genuine or forged. 
Subscribing witnesses may forget or exaggerate what they really know,
saw, heard or did; they may be biased and, therefore, tell only half truths to
mislead the court or favor one party to the prejudice of the other.  This can not be said of the condition and
physical appearance of the questioned do­cument itself.  Both, albeit silently, will
reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating
nothing.  For this reason,
independently of the conflicting opinions expressed by the handwriting experts
called to the witness stand by the parties, we have carefully examined and
considered the physical appearance and condition of the original and two copies
of the questioned will found in the record – par­ticularly the signatures
attributed to the testator – and We have come to the conclusion that the latter
could not have been written by him.

Upon the face of the original and two copies of the con­tested
will (Exhibits A, E, and K) appear a total of six alleged signatures of the
testator.  They are all well written
along a practically straight line, without any visible sign of tremor or lack
of firmness in the hand that wrote them. 
In fact, in the respects just adverted to, they appear better written
than the unquestioned signatures of attesting witnesses Gandionco
and Cabiluna, inspite of
the fact that on the date of the alleged execution of the will (May 17, 1945)
the testator was considerably older and in a much poorer physical condition
than they.  Accord­ing to the evidence,
the testator was then a sick man, eighty-two years old, with the entire left
half of his body paralyzed since six years before, while the oldest attesting
witness (Cabiluna) was around sixty-five years of age
and Leonardo and Gan­dionco were only forty-four and
forty-five years old, respectively, and were all in good health.  Despite the obviously very poor phy­sical
condition of the testator, Leonardo claims that he signed the alleged will
unaided, writing his name thereon slowly but continuously or without
interruption, and that, on the same occasion, he signed his name several times
not only on the original of the will and its
copies but also on the original and several copies of the alleged confirmatory sale Exhibit F-1 and on his residence
cer­tificate.  Considering all the
attendant circumstances, we agree with the lower court that Vito Borromeo could not have written the questioned signatures.

In view of what has been said heretofore, We find it unnecessary
to examine and consider in detail the conflicting testimony of the handwriting
experts presented by the parties:  Martin
Ramos by the proponents of the will, to sustain the genuineness of the
questioned signatures, and Felipe Logan and Jose G. Villanueva, by the oppositors, to prove that said sig­natures are
forgeries.  We shall limit ourselves in
this con­nection to quoting with approval the following portion of the appealed
decision:

“What the Court finds to be a weakness in the conclusions of
Martin Ramos, based on his comparative examination of the questioned and
standard signatures of Vito Borromeo, is his apparent
assumption that all the signatures were made by Vito Borromeo
under equal­ity or similarity of circumstances, that is, that in all instances
Vito Borromeo had normal use of both of his hands, –
the right and the left.  He failed to
take into account that when Vito Borromeo allegedly
affixed those signatures on May 17, 1945 on Exhibits ‘A’, ‘E’, and IK’ the left
portion of his body, including the left hand, was already paralyzed, and Vito Borromeo was represented to have written his name alone by
himself and unaided.  Maybe, if he was
previously apprised of those circumstances, he would hesitate to make the
conclusion that those flawless signatures reading Vito Borromeo,
written straight and in a form as good as, if not better than, the sig­natures
of three much younger attesting witnesses, were positively in the handwriting
of the 82-year old, ailing, and paralytic Vito Borromeo.  The Court con­sequently, finds itself not
disposed to adopt his conclusions, but on the contrary is inclined toward the views of the other two expert witnesses,
Felipe Logan and Jose G. Villanueva.”

As stated at the outset, the contested will is claimed to have been signed and thumbmarked by the testator.  An examination of the thumbmarks,
however, readily shows that, as the lower court found, the same are
“glaringly far from being distinct and
clear”; that “they are not a possible means of identification”
nor can “They possibly be identified to be those of Vito Bor­romeo, or for that matter, of any other person
whatsoever”.  It is, therefore, obvious, that they are
of little use in the reso­lution of the issue before Us.

We shall now consider the appeal taken by the oppositors
and the Republic of the Philippines from that portion of the decision where the
lower court declined to decide with finality the question of who owns the
thirteen parcels of land subject-matter of the confirmatory sale Exhibit F-1
and whether or not they should be included in or excluded from the inventory of
properties of the Estate of the deceased Vito Borromeo.

It appears that on February 11, 1954 Tomas, Amelia, and Fortunato Borromeo, through
counsel, filed a
motion for the exclusion from the inventory of the Estate of the
thirteen lots therein mentioned, with a total area of 2,348 square meters,
claiming that the same had been sold by the deceased Vito Bor­romeo
during his lifetime to the Cebu Arcade., T. L. Borromeo y Cia.  This motion for exclusion was denied by the
lower court in its order of July 16,
1954, and the ruling was reiterated in the appealed decision
“for the same reasons and considerations” upon which it rejected the
probate of the will.  The ruling on the
matter, however, was expressly made provisional in nature.

We believe, and so hold, that the resolution of the lower court
on this matter is correct because said court, acting in its capacity as a probate
court, had no jurisdiction to deter­mine with finality the question of
ownership involved.  That such matter
must be litigated in a separate action has been the established jurisprudence in this
jurisdiction (Ongsinco vs. Borja,
G.R. No. L-7635, 1955; Mallari vs. Mallari, G.R. No. L-4656, February 23, 1953; Garcia vs. Martin G. R. No. G.R. No.
L-9233, June 29, 1957; Cor­dova vs. Ocampo, 73 Phil.
661; Pascual vs. Pascual,
73 Phil. 561 and others), except where a party merely prays for the in­clusion
or exclusion from the inventory of any particular pro­perty, in which case the
probate court may pass upon, provi­sionally, the question of inclusion or
exclusion, but without prejudice to its final determination in an appropriate
separate action (Garcia vs. Garcia, 67 Phil. 353; Marcelino
vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144, 147).

IN VIEW OF ALL THE FOREGOING, the decision appealed from
is affirmed, with costs.

Concepcion, C.J., Reyes, Regala, Makalintal, Bengzon, Zaldivar, Sanchez, and Castro, JJ., concur.