IN THE MATTER OF THE LAST WILL AND TESTAMENT OF JOSE VAÑO, DECEASED. TEODORO VAÑO, PETITIONER AND APPELLANT, VS. PAZ VASO VDA. DE GARCES, ET AL., OPPOSITTORS AND APPELLEES.

This is an appeal by petitioner Teodoro Vaño from a decision of the
Court of First Instance of Cebu denying probate of the document
(Exhibit “A”), said to be the last will and testament of Jose Vaño. The
appeal was first taken to the Court of Appeals where the record on
appeal and the briefs of petitioner and oppositors were filed.
Subsequently, however, on joint motion of both parties requesting that
the appeal be elevated to the Supreme Court on the ground that the
value of the properties involved as shown by the inventory was more
than P50,000, the case was forwarded to this Tribunal where memoranda
were filed in lieu of oral argument.

Jose Vaño died on January 28, 1950, in the City of Cebu. According
to the certificate of the City Health Officer and Local Civil
Registrar, Exhibit “C”, he was 78 years old and he died of P. T. B.
(pulmonary tuberculosis). He left properties valued at P95,913.05 as
per inventory of the administrator but which according to the evidence
are worth much more. On February 11,1950, Teodoro Ceblero Vaño
petitioned the Court of First Instance of Cebu to have a document
supposed to be the last will and testament of Jose Vaño, and which he
attached to his petition, probated. We reproduce said document—

“LAST WILL AND TESTAMENT

IN THE NAME OF THE FATHER, THE SON AND THE HOLY GHOST, AMEN:

I,
Jose Vaño, single, Filipino citizen, of legal age and resident of Cebu
City, being of sound and disposing mind and memory, do hereby make,
execute and publish, this my Last Will and Testament in English, which
language is known to me and which I talk, read and understand, hereby
revoking and cancelling any and all testamentary provisions heretofore
made by me, and the following shall be my Last Will:

1. I hereby make known to the world that Teodoro Ceblero Vaño is my son.
2. That I hereby bequeath to aforesaid Teodoro Ceblero Vaño all my properties.

In witness whereof, I have hereunto affixed my name at the City of Cebu, Philippines this 11th day of December, 1949.

(Sgd.) Jose Vaño         
Testator         

We, the undersigned attesting witnesses, whose
residences are stated opposite our respective names, do hereby certify
that the testator whose name is signed herein-above, has published unto
us the foregoing will consisting of one page, as his Last Will and
Testament, and has signed the same in our presence, and in witness
whereof we have each signed the same in the presence of said testator
and in the presence of each other.

Cebu City, Philippines, this 11th day of December, 1949.

Pedro C. Ceniza—494-B. Junquera, Cebu City
O, Rama, M. D.—Basak, Sn. Nicolas, Cebu City
Nazario E. Paquiao—553 A. P. del Rosario, St., Cebu City”

Teodoro asked that he be appointed administrator of the estate and
that pending his appointment as regular administrator, he be designated
special administrator.

On March 24, 1950, Paz Vaño Vda. de Garces and the supposed heirs of
Jesus Vaño, brother of Jose Vaño, filed the following opposition—

“OPPOSITION

Comes now Paz Vaño Vda. de Garces, and the heirs of
Jesus Vaño, thru their undersigned attorneys, and to this Honorable
Court respectfully states:

1. That the oppositor Paz Vaño Vda. de Garces is the sister
   of the deceased Jose Vaño, and Filomena Vaño, Felicidad Vaño, Angel
   Vaño, Salvador Vaño, Norberto Vaño, Teodorico Vaño, and Ireneo Vaño,
   are the children and heirs of Jesus (brother of Jose Vaño), and all of
   them are entitled to participate in the said Estate of the deceased
   Jose Vaño in case of intestacy;

2. That the
   instrument now offered for probate as will of the deceased Jose Vaño
   was procured by undue and improper pressure and influence on the part
   of Teodoro Ceblero who is not an acknowledged natural child of the
   deceased Jose Vaño;

3. That the said Jose Vaño was mentally incapable to make a will on December 11th, 1949;
4. That the signature of the testator Jose Vaño was procured by fraud and
   trick on the part of Teodoro Ceblero and the said deceased Jose Vaño
   never intended that the said document should be his will at the time of
   fixing his signature thereto;

5. That the instrument
   now offered for probate as will of the deceased Jose Vaño is written in
   English language which is not the usual and proper language of the
   deceased, and if the deceased would have had made any will he should
   have it written in Spanish;

6. That the said deceased
   Jose Vaño never recognized Teodoro Ceblero as his acknowledged natural
   child, the same being a mere protege of the deceased, and not an
   adopted or acknowledged natural child;

7. That the
   deceased Jose Vaño had time and again told his sister and nephews that
   he will not execute a will because he wants to leave all his estate in
   favor of his brother and sister, and nephews;

8. That
   Dolores Garces de Falcon, a niece of the deceased Jose Vaño, being the
   nearest of kin, is a competent person to act as Administratrix of the
   estate of the deceased, and she is willing to serve as such;

PRAYER

For all the foregoing considerations, we
respectfully pray this Honorable Court that the said will of the
deceased Jose Vaño be declared null and void, and that it be not
admitted to probate; That an administratrix of the said estate be appointed who shall distribute the same among the legal heirs of the
deceased; That Dolores Garces de Falcon be appointed as Administratrix
of the Estate of the deceased Jose Vaño.

Cebu City, Philippines, March 23, 1950.”

On August 29, 1950, Ireneo Vaño one of the persons included in the opposition, filed a motion of the following. tenor.

“MOTION

Comes now Ireneo Vaño and to this Honorable Court respectfully states:

1. That he is the son and only heir of Jesus Vaño, now deceased,
2. That his father Jesus Vaño is a brother of Jose Vaño, also deceased.
3. That in this case a petition has been presented for the probate of the last will and testament of Jose Vaño.
4. That an opposition has been filed against the probate of said will.
5. That he is named as one of the oppositors, without his knowledge and consent.
6. That he does not oppose nor intends to oppose the probate of the will
   in question, because that document contains a true expression of the
   wish and desire of Jose Vaño as to who shall inherit his property.

7. That he has not authorized anybody to file an opposition in his name.

PRAYER

Wherefore, the undersigned respectfully prays this
Honorable Court to cancel his name from the list of oppositors
mentioned in the opposition to the petition filed by Teodoro Vaño.

Tagbilaran, Bohol (for the City of Cebu), August 8, 1950″ Said
motion of Ireneo Vaño was granted by the Court, In the course of the
hearing, he was presented as one of the witnesses for petitioner
Teodoro and he declared that he was the son of Jesus Vaño, already
dead; that he knew Filomena Falcon, Felicidad Calibo, Angel Falcon,
Salvador Flores, Norberto Calibo, and Teodorico Falcon, who are
sometimes known by the surname Vaño but that they were not related to
him because he had no brothers or sisters; that his father Jesus Vaño
was a younger brother of the testator Jose Vaño; that petitioner
Teodoro Vaño was the cousin, son of Jose Vaño, and that he knew of the
blood relationship between the testator and Teodoro Vaño because he
(Ireneo) since childhood used to go to his uncle’s house where Teodoro
lived and he saw that Teodoro was treated as a son by Jose Vaño, who
paid for Teodoro’s board at the Colegio del Nino where the two of them
were students; that he (Ireneo) never authorized anyone to include him
as oppositor to the probate of the will of Jose Vaño and that he did
not oppose its probate.

The three attesting witnesses Pedro Ceniza, Dr. Osmundo Rama and
Atty. Nazario Pacquiao testified for the petitioner and assured the
court that Exhibit “A” was the last will and testament of the late Jose
Vaño; that he signed Exhibit “A” in their presence, and that each of
them signed the same after him, in his presence and in the presence of
each other; that at the time of the execution of the document in the
afternoon of December 11, 1949, the testator was of sound and disposing
mind and memory and that it was his voluntary act, no pressure or
influence having been exerted on him; that the blank space after the
letter “I” in the first paragraph of Exhibit “A” was filled out by the
testator himself although they (witnesses) differ as to who filled out
the blank spaces on the document where the words “11th” and “December”
appear. Atty. Pacquiao told the court that it was he who prepared the
will (Exhibit A) pursuant to the wishes of the testator.

For the opposition Ciriaca Alse who formerly worked as a servant in
the household of Teodoro Vaño, Dolores Garces de Falcon, a daughter of
Paz Vaño Vda. de Garces and Carmen Vallore testified. The burden of
their testimony is that from November 1949, Jose Vaño was already very
sick; that in December he was in serious if not critical condition;
that he was always in bed, oftentimes unable to move or open his eyes
and he could not maintain any conversation with anyone; that he had to
be fed by some- one ; and that he was bed-ridden and already had
bed-sore. The idea sought to be conveyed by them was that the testator
was in no condition to execute a will.

Mr. Edgar Bond, an examiner of questioned documents and chief of the
Questioned Documents and Ballistics Division of the National Bureau of
Investigation was also presented by the opposition as a handwriting
expert and he told the court that after examining the supposed
signature of Jose Vaño on Exhibit “A” and comparing them with his
accepted standard signatures, he was convinced that the signatures on
Exhibit “A” were forgeries. His testimony was vigorously objected to by
counsel for the petitioner on the ground that the genuineness of the
signature of the testator on Exhibit “A” was never placed in issue
because the written opposition of the opponents virtually admitted said
genuineness and merely claimed that the will was not the testator’s
voluntary act because said signature was obtained thru trickery and
that undue pressure and influence were brought to bear upon him.

To counteract the testimony of Bond, the deposition of Dr. Paul
Rodriguez Versoza, another handwriting expert was taken and introduced
in evidence. Dr. Versoza claims that after examining the signatures of
Jose Vaño on Exhibit “A” and comparing them with accepted standard
signatures of the testator, he was convinced that the signatures on
Exhibit “A” were genuine and that any difference noted between them
were due to the age, weakness, and illness of the testator, especially
the fact that he was suffering from rheumatism. After hearing, the
learned trial court noting discrepancies in the testimonies of the
three attesting witnesses as to the due execution of Exhibit “A”, and
accepting the expert testimony of Mr. Bond over that of Dr. Versoza,
came to the conclusion that the supposed signatures of Jose Vaño on
Exhibit “A” are not genuine but imitated and held that Exhibit “A” was
not the last will and testament of Jose Vaño.

One of the errors assigned by petitioner-appellant is that the trial
court erred in permitting appellees over the objection of appellant to
present evidence which are contrary to their allegations in their
opposition. It is his contention that the opponents not only failed to
allege as a basis of their opposition that the signatures of the
testator on the supposed will were forged but that on the contrary,
they impliedly admitted the genuineness of said signatures, merely
claiming that said signatures were obtained through trickery and fraud
and under undue pressure and influence. This1 point brings us to a
discussion of what evidence an Opponent to a probate of a will may be
permitted to present at the hearing—whether or not he is limited to
presenting evidence to sustain the particular objection or ground on
which he bases his opposition to the probate.

In some jurisdictions in the United States the rule is that the
issue in contested wills is made up by the pleadings or framed from the
same, and no evidence can be introduced” except in support of
allegations contained in such pleadings. For instance, if the only
opposition to the probate of a will is lack of mental capacity of the
testator, then the oppositor in presenting evidence will be confined to
that point. In other jurisdictions, however, it is said that the issue
is fixed by the statute and is practically the old common law issue
“devisavit vel non,” is the instrument presented for probate the last
will and testament of the testator?; that said issue may not be varied
by the pleadings and that every ground of attack on the validity of the
will may be employed.

As the law in our jurisdiction on the probate of wills now stands,
we are inclined to adopt the second view, namely, that the law itself
fixes or determines the issue, because under section 12, Rule 77, of
the Rules of Court, before the probate court can allow the will it must
be satisfied upon proof taken and filed that the will was duly
executed, and that the testator at the time of its execution was of
sound and disposing mind and not acting under duress, menace, and undue
influence, or fraud. Also, under section 9 of the same rule, a will may
be disallowed (a) if not executed and attested as required by law; (b) if the testator was mentally incapable of making a will; (c) if it was executed under duress, or the influence of fear, or threats; (d) if it was procured by undue and improper pressure and influence on the part of the beneficiary; and (e)
if the signature of the testator was procured by fraud and trick. The
oppositors in the present case therefore were not precluded from
attacking the will on the ground of forgery despite the fact that their
opposition was confined to grounds (b), (c) and (d) of section 12, Rule 77 as stated above.

On the other hand, section 10 of the same rule 77 provides that
“anyone appearing to contest the will must file a writing stating his
grounds for opposing its allowance; and serve a copy thereof on the
petitioner and other residents of the province interested in the
estate.” The purpose of this legal provision is clear, and it is to
apprise the person or persons seeking the probate of will, as well as
any other person interested in the estate, of the reasons in opposing
probate so that they may prepare the necessary evidence to counteract
and disprove said ground of opposition, this, in addition to apprising
the court itself of the issue involved in the proceedings so that it
may intelligently direct the presentation of evidence during the
hearing. Of course, as we have already stated, an oppositor objecting
to the probate of the will on one or two specific grounds may, during
the hearing add to the grounds and submit evidence in support of the
same, but when this happen as it did in the present case, one is more
or less justified in inferring that the oppositors were not sure of
their ground; that they were in doubt as to the basis of their
opposition, a fact which naturally and not inconsiderably weakens their
stand. One of the grounds of their opposition was that the signature of
the testator was procured by fraud and trick, thereby leading one to
believe, including the court and the petitioner that said signature was
genuine but was not valid. At the hearing, said oppositors completely
changed their stand and claimed that the signature was actually forged.
As we have already said, that conduct and attitude, changeable and
uncertain, does not strengthen their position.

Let us now go to the evidence on the alleged forgery of the
signatures of the testator Jose Vaño. We have carefully read the
testimony of Mr. Bond for the oppositors and the deposition of Dr.
Verzosa for the petitioner. There is no reason for doubting the
qualifications, sincerity, and honesty of these two witnesses. Their
opinions seem to be plausible, arrived at after an analysis and
comparison of the questioned signatures with the standard and accepted
signatures of the testator; but we fear that the infirmity, age, and
state of health of the testator had not been given due consideration by
the witness of the opponents and by the court. There is no question
that there are differences and discrepancies between the two signatures
reading “Jose Vaño” on Exhibit “A” and the genuine, accepted signatures
of the testator even as late as the last part of the year 1949. But we
should not forget that on December 11th of the same year when he
executed Exhibit “A”, he was suffering from apparently advanced
pulmonary tuberculosis as well as rheumatism which according to Dr.
Osmundo Rama who had been treating him until the day he died, affected
his joints. The testator was then 78 years old, lying in bed most of
the time, so much so that he developed bed-sores, sitting up in bed
only once in a while, and at those times, his hands trembled. It is
natural that his signatures on Exhibit “A” should lack the firmness,
rhythm, lack of effort and continuity of motion that they had before he
became quite ill and infirm. Examining the signatures on Exhibit “A”,
the original of the will, and those on “3-A”, a carbon copy thereof, it
will be readily observed that while the signatures on the original are
already infirm, rough and jagged, suggesting a hand infirm and
trembling, those on the duplicate (Exhibit “3-A”) are still more so,
showing the effects of the concentration of attention, exertion and
effort of the testator in reading and signing the original.

But there are other and equally important considerations which favor
the conclusion that Exhibit “A” was duly signed and executed by the
testator. As already stated, in their written opposition the opponents
did not question but on the contrary, assumed if not conceded the
genuineness of the signatures of the testator. Then at the hearing,
they changed their attitude and for the first time put in issue the
genuineness of said signatures; this despite the fact that the original
of the will (Exhibit “A”) was filed in court on February 11,1950, and
the opposition was filed on March 24th of the same year. In other words
the opponents and their lawyers had almost one and a half months within
which to examine and scrutinize the signatures on Exhibit “A”, after
which examination they did not doubt their genuineness.

Again, the opponents included Ireneo Vaño, a son of Jesus Vaño, brother of the testator, among the oppositors.

This same Irineo later filed a motion in court repudiating the
action taken by the opponents, saying that he was included among the
oppositors without his knowledge or consent; that far from opposing the
probate of the will of his uncle, he believed that said will was a true
expression of the wish and desire of the testator. Not only this, but
he testified for the petitioner and said that the petitioner Teodoro
Vaño was the son of the testator and had been treated by him as such
since childhood.

The learned trial court lays emphasis on the uncertainty of the
three subscribing witnesses as to who filled out the blank spaces on
the will now occupied by the words “11th” and “December”, while they
are sure that the name Jose Vaño on the space at the beginning of the
first paragraph was written by the testator himself. Said uncertainty
on the part of the said three subscribing witnesses instead of
affecting their veracity, in our opinion, strengthens it, because it
refers to a minor detail and shows that they had not been rehearsed but
on the contrary, testified to what they remembered. In this connection,
there is every reason to believe that the fact that the space for the
name Jose Vaño on Exhibit “A” was left in blank to be filled out later
by the testator himself argues against the theory of forgery, because
if there had been forgery, by leaving the blank space for the name of
the testator to be filled out later, including the space for the date
and the month, the forgers would be laying themselves open and
unnecessarily creating an additional opportunity for the opponents and
for the court to detect the forgery.

After all, there was neither necessity nor occasion for forging the
signatures of the testator in the will because there is every reason to
believe that said testator would leave all his property to petitioner
Teodoro Vaño. The evidence shows that Teodoro was a natural son of the
testator. From childhood he had been raised by Jose Vaño, treated like
a son, and sent to school, and even after Teodoro had married, he and
his wife and family continued to live with the old man, or rather, the
old man lived with them. Jose Vaño in 1945, in a public instrument
entitled “Special Power of Attorney” (Exhibit “E”) referred to Teodoro
Vaño as his son and appointed him as his attorney-in-fact to lease to
the United States of America any, some or all real properties owned by
him in the City of Cebu, under such terms and conditions which Teodoro
may deem just and reasonable, and to execute and sign the corresponding
deeds of lease, and to collect and receive the rents. This was accepted
and acted upon by Teodoro Vaño. In 1946 and 1947 the testator appointed
Teodoro his attorney-in-fact giving him a power of attorney with
extensive powers such as to lease to the Republic of the Philippines
some of his real and personal properties in the City of Cebu, and to
collect and receive the rentals accruing from the leased properties; to
ask, demand, sue for, recover, and collect any and all sums of money,
debts, dues, accounts, legacies, bequests, interests, dividends, etc.
which thereafter become due or owing to him and to make, sign, execute,
and deliver contracts, documents, agreements, and other writings of
whatever nature with any and all third persons upon terms and
conditions acceptable to him (Teodoro), Exhibits “F” and “G”. In 1946
while the testator was in Bohol, he wrote to Teodoro a note (Exhibit
“I”) addressing him as his “dear son” and with the complimentary clause
“your loving Dad”, signing the same, asking Teodoro to send P5,000 to
him. It seems that at least in Cebu and Bohol petitioner Teodoro Vaño
was known by everyone to be the son of Jose Vaño because the latter had
treated and accepted, even recognized him as such, and shortly before
his death, entrusted him with the complete management of his business.
One of the witnesses for the opposition, Carmen Vallore, cousin-in-law
of the testator, in her testimony called Milagros Vaño, wife of Teodoro
Vaño, as the daughter-in-law of Jose Vaño, meaning that Teodoro was the
son of the testator. During the hearing and while, Teodoro Vaño was
testifying, counsel for the oppositors repeatedly referred to the
testator as his (Teodoro’s) father. Under all these circumstances, is
it any wonder that Jose Vaño should voluntarily by means of a will,
leave all his properties to his only son, though natural?

It js not improbable that one of the reasons prompting the filing of
the opposition to the petition for probate was that Paz Vaño Vda. de
Garces, sister of the testator, could not understand why her brother, a
wealthy man should leave all his wealth to a mere natural son (Teodoro)
and leave nothing to her; but it was not altogether strange because it
seems that the relations between Paz and the testator, were rather
strained and in 1949, according to the evidence, Paz had brought a
civil action against Jose Vaño and Irineo Vaño, the nephew of Jose Vaño
who refused to oppose the probate of the will. And during the last and
prolonged illness of the testator, Paz, living in the same city of
Cebu, did not even once visit her ailing and bed-ridden brother.

The three subscribing witnesses to the will, under oath assured the
court that Jose Vaño voluntarily signed Exhibit “A”, and these three
witnesses were in no way related to Teodoro or to the testator, had no
interest in the execution of the will and stood to gain nothing by its
probate. Pedro Ceniza is a responsible businessman, Dr. Osmundo Rama,
is a practicing physician and Atty. Nazario Pacquio, is a member of the
bar and at the time he prepared Exhibit “A”, he wa3 Assistant
Provincial Fiscal of Cebu. Their disinterested testimony cannot be
taken lightly. On this question of the weight to be given to the
testimony of subscribing witnesses, we held in the case of Roxas vs.
Roxas, et al., 48 Off. Gaz. (6) 2177; 87 Phil. 692, that—

“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.’

“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 of any one of them must be satisfactorily shown to the Court.’
(Section 11, Rule 77, Rules of Court.)”

In the present case, the opinions of the two handwriting experts
presented by the parties are conflicting and’ even assuming that there
is doubt to our mind as to which of the two is to be accepted, the
positive and clear testimony of the three subscribing witnesses should
prevail. In the case of In re Will of Medina, 60 Phil., 391, this Court
said:

“In the present case, two of the subscribing
witnesses are lawyers. This fact together with the circumstance that
they were not shown to have any interest in the subject of the
litigation, lead the trial court to consider their testimony as worthy
of credit. The intervention of professional men specially lawyers, in
the preparation and execution of wills, has been given by this Court
the consideration deserved.”

Reiterating the doctrine laid down in the case of Sotelo vs. Luzan, 59 Phil., 908, we further held in the same case:

“In one case it was said: ‘It is hardly conceivable
that any attorney of any standing would risk his professional
reputation by falsifying a will and then go before a court and give
false testimony.'”

There is no reason to believe that Atty. Pacquio who, at the time
was not only a member of the bar but was an assistant provincial
fiscal, should commit forgery by drafting Exhibit “A” and take part in
forging the signature of the testator and later falsely testify in
court on the due execution of said will and’ subject himself not only
to criminal prosecution and dismissal from his post as assistant
provincial fiscal, but also to disbarment proceedings.

In view of the foregoing, the decision appealed from is reversed and
Exhibit “A” is hereby allowed probate as the Last Will and Testament of
Jose Vaño, with costs against appellees.

Paras, C. J., Pablo, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador and Concepcion, JJ., concur.