IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE, CELSO ICASIANO, PETITIONER AND APPELLEE, VS. NATIVIDAD ICASIANO AND ENRIQUE ICASIANO, OPPOSITORS AND APPELLANTS.

Appeal from an order of the Court of First Instance of Manila
admitting to probate the document and its duplicate, marked as Exhibits
“A” and “A-1”, as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the
person named
This special proceeding was begun on October 2, 1958
of the original, Exhibit “A” as the alleged will of Josefa
Villacorte, deceased, and for the appointment of petitioner
Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published
for three (3) successive weeks, previous to the time appointed, in the newspaper “Manila Chronicle”, and also
caused personal service of copies thereof upon the known
heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the
testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator, to
which proponent objected. Hence, on November 18, 1958, the court issued
an order appointing the Philippine Trust Company as special
administrator.

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also
filed a manifestation adopting as his own Natividad’s opposition to the
probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion
for the admission of an amended and supplemental petition, alleging
that the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit “A-1”), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez
and Enrique Icasiano filed their joint opposition to the admission of
the amended and supplemental petition, but by order of July 20, 1959,
the court admitted said petition; and on July 30, 1959, oppositor
Natividad Icasiano filed her amended opposition. Thereafter, the
parties presented their respective evidence, and after several hearings
the court issued the order admitting the will and its duplicate to
probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the ground that
the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that
Josefa Villacorte died in the City of Manila on September 12, 1958;
that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and attested
by three instrumental witnesses, namely; attorneys Justo P. Torres, Jr.
and Jose V. Natividad, and Dr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong, Notary
Public in and for the City of Manila; and that the will was actually
prepared by attorney Fermin Samson, who was also present during the
execution and signing of the decedent’s last will and testament,
together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano, and a little girl. Of the said three instrumental witnesses
to the execution of the decedent’s last will and testament attorneys
Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of
the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also
attorney Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one original and
two copies of Josefa Villacorte’s last will and testament at his house
in Baliuag, Bulacan, but he brought only one original and one signed
copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition and marked
as Exhibit “A”, consists of five pages, and while signed at the end and
in every page, it does not contain the signature of one of the
attesting witnesses, Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit “A-l” is signed by the
testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show
that the original, of the will and its duplicate were subscribed at the
end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned
witnesses in the testatrix’s presence and in that of one another as
witnesses (except for the missing signature of attorney Natividad on
page three (3) of the original; that pages of the original and
duplicate of said will were duly numbered; that the attestation clause
thereof contains all the facts required by law to be recited therein
and is signed by the aforesaid attesting witnesses; that the will is
written in the language known to and spoken by the testatrix; that the
attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in
duplicate copies; and that both the original and the duplicate copy
were duly acknowledged before Notary Public Jose Oyengco Ong of Manila
on the same date—June 2, 1956.

Witness Natividad, who testified on his failure to sign page three
(3) of the original, admits that he may have lifted two pages instead
of one when he signed the same, but affirmed that page three (3) was
signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the
effect that the signatures of the testatrix in the duplicate (Exhibit
A-l) are not genuine, nor were they written or affixed on the same
occasion as the original, and further aver that granting that the
documents were genuine, they were executed through mistake and with
undue influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will
stand to benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the execution of the will
and the provisions and dispositions thereof, whereby
proponents-appellees stand to profit from properties held by them as
attomeys-in-fact of the deceased and not enumerated or mentioned
therein, while oppositors-appellants are enjoined not to look for other
properties not mentioned in the will, and not to oppose the probate of
it, on penalty of forfeiting their share in the portion of free
disposal.

We have examined the record and are satisfied, as the trial court
was, that the testatrix signed both original and duplicate copies
(Exhibits “A” and “A-l”, respectively) of the will spontaneously, on
the same occasion, in the presence of the three attesting witnesses,
the notary public who acknowledged the will, and Atty. Samson, who
actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix and Atty.
Fermin Samson together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the
testatrix and the witnesses. The opinion of expert for oppositors, Mr.
Felipe Logan, that the signatures of the testatrix appearing in the
duplicate original were not written by the same hand, which wrote the
signatures in the original will leaves us unconvinced, not merely
because it is directly contradicted by expert Martin Ramos for the
proponents, but principally because of the paucity of the standards
used by him to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer’s range of
normal scriptural variation. The expert has, in fact, used as standards
only three other signatures of the testatrix besides those affixed to
the original of the testament (Exh. A); and we feel that with so few
standards the expert’s opinion that the signatures in the duplicate
could not be those of the testatrix becomes extremely hazardous. This
is particularly so since the comparison charts Nos. 3 and 4 fail to
show convincingly that there are radical differences that would justify
the charge of forgery, taking into account the advanced age of the
testatrix, the evident variability of her signatures, and the effect of
writing fatigue, the duplicate being signed right after the original.
These factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering that standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting power.
On the whole, therefore, we do not find the testimony of the
oppositor’s expert sufficient to overcome that of the notary and the
two instrumental witnesses, Torres and Natividad (Dr. Diy, being in the
United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The
fact that some heirs are more favored than others is proof of neither
(see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson
vs. Coronel, 45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well
die intestate. The testamentary disposition that the heirs should not
inquire into other property and that they should respect the
distribution made in the will, under penalty of forfeiture of their
shares in the free part, do not suffice to prove fraud or undue
influence. They appear motivated by the desire to prevent prolonged
litigation which, as shown by ordinary experience, often results in a
sizeable portion of the estate being diverted into the hands of
non-heirs and speculators. Whether these clauses are valid or not is a
matter to be litigated on another occasion. It is also well to note
that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off.
Gaz. 163, fraud and undue influence are mutually repugnant and probate
shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per
se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the
testatrix an two other witnesses did sign the defective page, but also
by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted
as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where the purpose of the
law to guarantee the identity of the testament and its component pages
is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the full observance of
the statutory requisites. Otherwise, as stated in Vda. de Gil vs.
Murciano, 88 Phil. 260; 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) “witnesses may sabotage the will by muddling or
bungling it or the attestation clause”.

That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as well
as by the duplicate copy of the will, which bears a complete set of
signatures in every page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise evidence that no one
was aware of the defect at the time.

This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements, where the
purposes of the law are otherwise satisfied. Thus, despite the literal
tenor of the law, this Court has held that a testament, with the only
page signed at its foot by testator and witnesses, but not in the left
margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil.
476); and that despite the requirement for the correlative lettering
of the pages of a will, the failure to mark the first page either by
letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil.
429). These precedents exemplify the Court’s policy to require
satisfaction of the legal requirements in order to guard against fraud
and bad faith but without undue or unnecessary curtailment of the
testamentary privilege.

The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-l) is not entitled to
probate. Since they opposed probate of the original because it lacked
one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma: if the original is
defective and invalid, then in law there is no other will but the duly
signed If the original is valid and can be probated, then the objection
to the signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove
that the omission of one signature in the third page of the original
testament was inadvertent and not intentional.

That the carbon
duplicate, Exhibit A-1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court,
already conferred by the original publication of the petition for
probate. The amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the
contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or
claimed that the amendment deprived the appellants of any substantial
right, and we see no error in admitting the amended petition.

In view of the foregoing, the decision appealed from is affirmed, with costs against appellants.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala, and Makalintal, JJ., concur.