CLEMENTE CALDE, PETITIONER, VS. THE COURT OF APPEALS, PRIMO AGAWIN AND DOMYAAN APED, RESPONDENTS.

This is a petition for review by certiorari of the Decision,
dated March 27, 1990, of the Court of Appeals^[1] in
CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed
by Calibia Lingdan Bulanglang, who died on March 20, 1976.

The records show that decedent left behind nine thousand pesos
(P9,000.00) worth of property. She also
left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto,
dated July 24, 1973. Both documents
contained the thumbmarks of decedent. They were also signed by three (3) attesting witnesses each, and
acknowledged before Tomas A. Tolete, then the Municipal Judge and Notary Public
Ex-Officio of Bauko, Mt. Province.

Nicasio Calde, the executor named in the will, filed a Petition
for its allowance before the RTC of Bontoc, Mt. Province, Br. 36.^[2]
He died during the pendency of the proceedings, and was duly substituted by
petitioner. Private respondents,
relatives of decedent, opposed the Petition filed by Calde, on the following
grounds: that the will and codicil were
written in Ilocano, a dialect that decedent did not know; that decedent was
mentally incapacitated to execute the two documents because of her advanced
age, illness and deafness; that decedent’s thumbmarks were procured through
fraud and undue influence; and that the codicil was not executed in accordance
with law.

On June 23, 1988, the trial court rendered judgment on the case,
approving and allowing decedent’s will and its codicil. The decision was appealed to and reversed by
the respondent Court of Appeals. It
held:

“x x x (T)he will and codicil could pass the safeguards under
Article 805 of the New Civil Code but for one crucial factor of discrepancy in
the color of ink when the instrumental witnesses affixed their respective
signatures. When subjected to cross?examination,
Codcodio Nacnas as witness testified as follows:

‘Q And all of you signed on the same table?

‘A Yes, sir.

‘Q And when you were all signing this Exhibit ‘B’ and ‘B-1’, Exhibit ‘B’
and ‘B-1’ which is the testament was passed around all of you so that each of
you will sign consecutively?

‘A Yes, sir.

‘Q Who was the first to sign?

‘A Calibia Lingdan Bulanglang.

‘Q After Calibia Lingdan Bulanglang was made to sign – I withdraw the
question. How did Calibia Lingdan
Bulanglang sign the last will and testament?

‘A She asked Judge Tolete the place where she will affix her thumbmark so
Judge Tolete directed her hand or her thumb to her name.

‘Q After she signed, who was the second to sign allegedly all of you there
present?

‘A Jose Becyagen.

‘Q With what did Jose Becyagen sign the testament, Exhibit ‘B’ and ‘B-1’?

‘A    Ballpen.

‘Q And after Jose Becyagen signed his name
with the ballpen, who was the next to sign?

‘A    Me,
sir.

‘Q And Jose Becyagen passed you the paper and the ballpen, Exhibit ‘B’ and
‘B-1’ plus the ballpen which used to sign so that you could sign your name, is
that correct?

‘A Yes, sir.

‘Q And then after you signed, who was the next to sign the document,
Exhibit ‘B’ and ‘B-1’?

‘A Hilario Coto-ong.

‘Q So you passed also to Hilario Coto-ong the same Exhibit ‘B’ and ‘B-1’
and the ballpen so that he could sign his name as witness to the document, is
it not?

‘A Yes, sir.

‘Q And that is the truth and you swear that to be the truth before the
Honorable Court?

ATTY. DALOG:

He already testified
under oath, Your Honor.

COURT:

Witness may answer.

‘A Yes, sir.

“For his part, Obanan Ticangan likewise admitted during
cross-examination in regard to the codicil that:

‘Q When you signed Exhibit ‘D’ and ‘D-1’, did you all sign with the same
ballpen?

‘A    One.’

“Such admissions from instrumental witnesses are indeed
significant since they point to no other conclusion than that the documents
were not signed by them in their presence but on different occasions since the
same ballpen used by them supposedly in succession could not have produced a
different color from blue to black and from black to blue. In fact, the attestation clause followed the
same pattern. The absurd sequence was
repeated when they signed the codicil, for which reason, We have no other
alternative but to disallow the Last Will and Codicil. Verily, if the witnesses and testatrix used
the same ballpen, then their signatures would have been in only one color, not
in various ones as shown in the documents. Moreover, the signatures, in different colors as they are, appear to be
of different broadness, some being finer than the others, indicating that,
contrary to what the testamentary witnesses declared on the witness stand, not
only one ballpen was used, and, therefore, showing that the documents were not
signed by the testatrix and instrumental witnesses in the presence of one
another. x x x”‘ (Rollo, pp.
44-46. Citations omitted.)

Petitioner unsuccessfully moved for
reconsideration of the impugned Decision. His motion was denied by the respondent court in its Order, dated May
24, 1990.

Thus, this appeal by petitioner who now puts in issue the
correctness of the respondent court’s conclusion that both decedent’s will and
codicil were not subscribed by the
witnesses in the presence of the testator and of one another, contrary to the
requirements of Article 805 of the Civil Code. He contends that:

“1. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISION OF THE SUPREME COURT BY CONCLUDING BASED ON PURE SPECULATION OR
SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF JUDGE TOLETE WHICH IS AN
EVIDENCE OF SUBSTANCE THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG WERE SIGNED BY HER AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT
OCCASIONS;

“2. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISIONS OF THE SUPREME COURT BY DISREGARDING THE PROBATIVE VALUE OF THE
ATTESTATION CLAUSES OF THE LAST WILL AND TESTAMENT AND THE CODICIL OF THE LATE
CALIBIA LINGDAN BULANGLANG.”

The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the evidence
submitted, respondent appellate court erred in concluding that both decedent’s
Last Will and Testament, and its Codicil were subscribed by the instrumental
witnesses on separate occasions. As a
general rule, factual findings of the Court of Appeals are considered final and
conclusive, and cannot be reviewed on appeal to this court. In the present instance, however, there is
reason to make an exception to that rule, since the finding of the respondent
court is contrary to that of the trial court, viz.:

“x x x (Private respondents) pointed out however, that the
assertions of petitioner’s witnesses are rife with contradictions, particularly
the fact that the latter’s signatures on the documents in issue appear to have
been written in ballpens of different colors contrary to the statements of said
witnesses that all of them signed with only one ballpen. The implication is that the subscribing witnesses to the Will
and Codicil, and the testatrix did not simultaneously sign each of the
documents in one sitting but did
it piecemeal — a violation of Art. 805 of the Code. This conclusion of the (private respondents) is purely
circumstantial. From this particular
set of facts, numerous inferences without limits can be drawn depending on
which side of the fence one is on. For
instance, considering the time interval that elapsed between the making of the
Will and Codicil, and up to the filing of the petition for probate, the
possibility is not remote that one or two of the attesting witnesses may have
forgotten certain details that transpired when they attested the documents in
question. x x x” (Rollo,
pp. 36-37.)

A review of the facts and circumstances upon which respondent
Court of Appeals based its impugned finding, however, fails to convince us that
the testamentary documents in question were subscribed and attested by the
instrumental witnesses during a single occasion.

As sharply noted by respondent appellate court, the signatures of
some attesting witnesses in decedent’s will and its codicil were written in
blue ink, while the officers were in black. This discrepancy was not explained by petitioner. Nobody of his six (6) witnesses testified
that two pens were used by the signatories on the two documents. In fact, two (2) of petitioner’s witnesses
even testified that only one (1) ballpen was used in signing the two
testamentary documents.

It is accepted
that there are three sources from which a tribunal may properly acquire
knowledge for making its decisions, namely: circumstantial evidence, testimonial evidence, and real evidence or
autoptic proference. Wigmore explains
these sources as follows:

“If, for example, it is desired to ascertain whether the
accused has lost his right hand and wears an iron hook in place of it, one
source of belief on the subject would be the testimony of a witness who had
seen the arm; in believing this testimonial evidence, there is an inference
from the human assertion to the fact asserted. A second source of belief would be the mark left on some substance
grasped or carried by the accused; in believing this circumstantial evidence,
there is an inference from the circumstance to the thing producing it. A third source of belief remains, namely,
the inspection by the tribunal of the accused’s arm. This source differs from the other two in omitting any step of
conscious inference or reasoning, and in proceeding by direct self-perception,
or autopsy.

“It is unnecessary, for present purposes, to ask whether this
is not, after all, a third source of inference, i.e., an inference from the impressions
or perceptions of the tribunal to the objective existence of the thing
perceived. The law does not need and
does not attempt to consider theories of psychology as to the subjectivity of
knowledge or the mediateness of perception. It assumes the objectivity of external nature; and, for the purposes of
judicial investigation, a thing perceived by the tribunal as existing does exist.

“There are indeed genuine cases of inference by the tribunal
from things perceived to other things unperceived — as, for example, from a
person’s size, complexion, and features, to his age; these cases of a real use
of inference can be later more fully distinguished x x x. But we are here concerned with nothing more
than matters directly perceived — for example, that a person is of small
height or is of dark complexion; as to such matters, the perception by the
tribunal that the person is small or large, or that he has a dark or
light complexion, is a mode of acquiring belief which is independent of
inference from either testimonial or circumstantial evidence. It is the tribunal’s self-perception, or
autopsy, of the thing itself.

“From the point of view of the litigant party furnishing this
source of belief, it may be termed Autoptic
Proference.”^[3] (Citations omitted.)

In the case at bench, the autoptic proference contradicts the
testimonial evidence produced by petitioner. The will and its codicil, upon inspection by the respondent court, show
in black and white — or more accurately, in black and blue — that more than
one pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for respondent court to
disbelieve petitioner’s claim that both testamentary documents in question were
subscribed to in accordance with the provisions of Art. 805 of the Civil Code.

Neither did respondent court err when it did not accord great
weight to the testimony of Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two
testamentary documents were subscribed and attested to, starting from
decedent’s thumbmarking thereof, to the alleged signing of the instrumental
witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Tolete’s testimony is there any kind of
explanation for the different-colored signatures on the testaments.

IN VIEW WHEREOF, the instant Petition for Review is
DENIED. The Decision of respondent
Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 disallowing the
Last Will and Testament, and the Codicil thereto, of the decedent Calibia
Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Regalado, and Mendoza, JJ.,
concur.

^[1]
Through its Second Division, composed of Associate Justices Jose A.R. Melo
(ponente and chairman), Antonio M. Martinez, and Nicolas P. Lapeña.

^[2]
Presided by Judge Artemio B. Marrero. The case was docketed as SPL. PROC. CASE NO. 295.

^[3]
J.H. WIGMORE, A Treatise On The Anglo-American System Of Evidence In Trials At Common
Law, Vol. 4, Sec. 1150, pp. 237-8 (1940).