Tolentino vs. Francisco

A contested will may be admitted to probate despite repudiation by one or more attesting witnesses, so long as the court is satisfied from all the proof that it was executed and attested in the manner required by law.

Gregorio Tolentino, 66 at his death, had been married to Benita Francisco, with whom he accumulated a considerable estate worth probably about P150,000. The marriage was childless, and Tolentino supported and educated younger members of his wife's Francisco connection in his home at No. 2541 Lico Street, Santa Cruz, Manila. For several years he kept a prior will favoring those Francisco kin.

In October 1930, after grave disagreements with the Francisco relations, Gregorio Tolentino resolved to make a new will leaving legacies to a few individuals and the bulk of his estate to Adelaida Tolentino de Concepcion as universal heir. On October 17, 1930, he went to the office of attorney Eduardo Gutierrez Repide at 97 General Luna, Manila, to have the new will drafted, returning two days later with a copy of the prior will. The draft initially named Repide, Leoncio B. Monzon, and Ramon L. Sunico as attesting witnesses, at Tolentino's request that execution occur in Repide's office.

On the morning of October 21, Tolentino returned the draft with corrections, substituting Jose Syyap, Agustin Vergel de Dios, and Vicente Legarda as witnesses. According to Repide, Tolentino explained that he had indiscreetly told Syyap on the Escolta that a new will was being drawn with others as witnesses, and Syyap — draftsman and witness of the former will with Legarda and Vergel de Dios — took offense at their exclusion. Tolentino then arranged for the three to meet at five o'clock in the afternoon of October 22 to execute the will, first suggesting a chop-suey restaurant (panciteria) at Syyap's insistence. Just before noon on October 22, Repide delivered to Tolentino the completed original and carbon copy, instructing him to page both instruments himself in his own hand and to execute the copy with the same formality to guard against loss of the original.

At about 4:30 p.m. on October 22, Tolentino collected Syyap and Vergel de Dios and drove to La Previsora Filipina on Rizal Avenue, where Legarda was manager. When Legarda declined to go to a panciteria because of an engagement at the Cosmos Club, Tolentino asked that the will be signed in Legarda's office, to which Legarda agreed. Tolentino drew the original and duplicate from his pocket, declared them his last will and testament in duplicate, and read the original to the witnesses, after which Legarda also read it himself. Tolentino then paged both original and duplicate in ink as "Pagina Primera", "Pagina Segunda", etc., signed the original and each page as "G. Tolentino", and each of the three witnesses signed at the end of the will, at the end of the attesting clause, and in the left margin of each page, all present together and advertent to the solemnity. The duplicate was not similarly executed after Syyap objected that it was unnecessary, supported by Vergel de Dios. Before parting, Tolentino asked the witnesses not to disclose the contents, drove Syyap and Vergel de Dios home, and at about 6:15 p.m. deposited the original overnight in Repide's safe because it was too late for his compartment No. 333 in the Oriental Safe Deposit in the Kneedler Building and he feared his relatives would pry into his papers at home. He retrieved it the following day after first missing Repide and placed it in the safe deposit, where it remained until withdrawn by court order. On the morning of November 9, 1930, Tolentino was found dead in his bed, killed by an assassin.

At trial, Syyap and Vergel de Dios admitted the genuineness of their signatures but denied joint execution. Syyap claimed Tolentino brought the will to his house on the afternoon of October 21 and he signed then as complaisance because he could not attend the appointed execution, while Vergel de Dios claimed he signed alone in the evening of October 22 at the Hospital of San Juan de Dios in Intramuros. The trial court disbelieved them, crediting Vicente Legarda's affirmative account corroborated by Miguel Legarda and Urbana Rivera, disinterested employees of La Previsora Filipina present during execution, and finding the will properly executed.

• Due Execution and Attestation: Whether the will of Gregorio Tolentino was executed and attested in the manner required by law so as to warrant probate.
• Credibility of Repudiating Witnesses: Whether probate may be granted notwithstanding the repudiation by two of the three attesting witnesses of joint execution.

• Due Execution and Attestation: Yes. The will was properly executed and attested, as established by the corroborated testimony of the third witness and disinterested eyewitnesses and supporting physical and impeachment evidence.
• Credibility of Repudiating Witnesses: Yes. Probate does not require the united support of all attesting witnesses; it suffices that the court is satisfied from all the proof of due execution and attestation.

• Due Execution and Attestation: The affirmative proof of proper execution was adequate, consistent, and convincing. Vicente Legarda testified to joint presence, reading, paging by the testator, and successive signing on each page and the attesting clause, corroborated by two disinterested employees present in the office. The seven signatures of Syyap appeared to have been made with the same pen and ink used by Legarda, and probably so for Vergel de Dios, inconsistent with signings at different times and places. Syyap's claim of signing on October 21 was impossible because the completed instrument had not yet left the draftsman's hands.
• Credibility of Repudiating Witnesses: The repudiation was found to be an evident fabrication to defeat the will, pursuant to a conspiracy with the opponents. Both witnesses were impeached by prior contradictory statements admitting joint execution at La Previsora Filipina: Syyap to detective Nemesio Alferez during the murder investigation, and Vergel de Dios to policeman Ramon Llorente at the cemetery and later to Juan Concepcion and Genoveva de Mendoza. Because the proponent's duty to call all available attesting witnesses does not make validity depend on their unanimous support, the court properly relied on the whole record under Fernandez vs. Tantoco.

• Probate Despite Adverse Attesting Witness Testimony — When a will is contested, the proponent must call all available attesting witnesses, but validity does not depend on their united support. A will may be admitted to probate even if one or more subscribing witnesses fail to prove all facts of due execution, if the court is satisfied from all the proof that the will was executed and attested as required by law. Applied here to sustain probate on the testimony of one attesting witness plus corroboration, despite repudiation by the other two.
• Impeachment by Prior Contradictory Statements and Physical Evidence — Testimony denying due execution may be disbelieved where contradicted by the witnesses' own prior admissions and by physical circumstances such as identity of pen and ink. Applied to reject the separate-signing stories of Syyap and Vergel de Dios in light of their admissions to police officers and private persons and the appearance of their signatures.

• "When a will is contested it is the duty of the proponent to call all of the attesting witnesses, if available but the validity of the will in no wise depends upon the united support of the will by all of those witnesses." — States the procedural duty to present the witnesses and the substantive rule that unanimity is not required for validity.
• "A will may be admitted to probate notwithstanding the fact that one or more of the subscribing witnesses do not unite with the other, or others, in proving all the facts upon which the validity of the will rests." — Formulates the controlling ratio for admitting wills over hostile or repudiating attestation testimony, citing Fernandez vs. Tantoco.
• "It is sufficient if the court is satisfied from all the proof that the will was executed and attested in the manner required by law." — Defines the ultimate probate standard applied to affirm the trial court's finding of due execution.

• Fernandez vs. Tantoco, 49 Phil., 380 — Cited as controlling authority that a will may be probated despite the failure of one or more subscribing witnesses to support all facts of due execution, if the court is otherwise satisfied from the evidence.

Malcolm, Villamor, Villa-Real, Abad Santos, Hull and Vickers, JJ., concurred.