SPECPRO-Suntay Vs Suntay

[Nos. L-3087 and L-3088.
31 July 1954]
In re: Testate Estate of the deceased JOSÉ B. SUNTAY.

SILVINO SUNTAY, petitioner and appellant. In re:
Intestate Estate of the deceased JOSÉ B. SUNTAY,
FEDERICO C. SUNTAY, administrator and appellee
1. WlLLS; PROBATE OF WlLLS; ASSIGNMENT OF

INTEREST IN THE ESTATE, NOT A BAR TO PROBATE
OF A LOST OR FOREIGN WlLL.— In an intestate
proceeding that had already been instituted in the
Philippines, the widow and child of the testator are not
estopped from asking for the probate of a lost will or of a
foreign will just because of the transfer or assignment of
their share, right, title and interest in the estate of the
deceased. The validity and legality of such assignments
can not be threshed out in the probate proceeding which is
concerned only with the probate of the will.
2. ID.; ID.; PROOF OF LOST WILL; PROVISIONS OF

WILL MUST BE PROVED BY AT LEAST Two
CREDIBLE WITNESSES; WHO ARE CREDIBLE
WITNESSES.—Granting that a will was duly executed
and that it was in existence at the time of, and not
revoked before, the death of the testator, still the
provisions of the lost will must be clearly and distinctly
proved by at least two credible witnesses. "Credible
witnesses" mean competent witnesses and not those who
testify to facts from or upon hearsay.
501
VOL. 95, JULY 31, 1954 501
Suntay vs. Suntay
3. ID.; PROBATE OF WILL is A PROCEEDING IN REM;

NOTICE TO ALL PARTIES ESSENTIAL FOR ITS
VALIDITY.—In the absence of proof that the municipal
district court of Amoy is a probate court and on the
Chinese law of procedure in probate matters, it may be
presumed that the proceedings in the matter of probating
or allowing a will in the Chinese courts are the same as
those provided for in our laws on the subject. It is a
proceeding in rem and for the validity of such proceedings
/
personal notice or by publication or both to all interested
parties must be made.
4. ID. ; ID. ; PROCEEDINGS LIKENED TO A DEPOSITION

OR TO A PERPETUATION OF TESTIMONY.—The
proceedings had in the municipal district court of Amoy,
China, may be likened to a deposition or to a perpetuation
of testimony, and even if it were so, notice to all interested
parties was necessary for the validity of such proceedings.
5. ID.; WILLS PROVED IN A FOREIGN COUNTRY;

PROBATE SHOULD BE IN ACCORDANCE WlTH
ACCEPTED BASIC AND FUNDAMENTAL CONCEPTS
AND PRINCIPLES.—Where it appears that the
proceedings in the court of a foreign country were held for
the purpose of taking the testimony of two attesting
witnesses to the will and the order of the probate court did
not purport to allow the will, the proceedings cannot be
deemed to be for the probate of a will, as it was not done in
accordance with the basic and fundamental concepts and
principles followed in the probate and allowance of wills.
Consequently, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this
country.
6. WILL, PROBATE OF; LACK OF OBJECTION TO

PROBATE OF LOST WILL DOES EXECUTION.—The
lack of objection to the probate of a lost will does not
relieve the proponent thereof or the party interested in its
probate from establishing its due execution and proving
clearly and distinctly the provisions thereof by at least two
credible witnesses, as provided for in section 6, Rule 77 of
the Rules of Court.
7. ID. ; APPEALS ; JURISDICTION OF SUPREME COURT

TO REVIEW FINDINGS OF FACT AND LEGAL
PRONOUNCEMENTS IN CASES INVOLVING MORE
THAN P50,000.—In an appeal from a judgment of the
probate court, the Supreme Court, in the exercise of its
appellate jurisdiction, has the power to review and correct
erroneous findings of fact and legal pronouncements of the
probate court, where the amount involved is more than
P50,000.
502
502 PHILIPPINE REPORTS ANNOTATED

Suntay vs. Suntay
APPEAL from a decree of the Court of First Instance of

Bulacan. Pecson, J.
The facts are stated in the opinion of the Court
Claro M. Recto for appellant.
/
Sison & Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First

Instance of Bulacan disallowing the alleged will and
testament executed in Manila on November 1929, and the
alleged last will and testament executed in Kulangsu,
Amoy, China, on 4 January 1931, by Jose B. Suntay. The
value of the estate left by the deceased is more than
P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and
resident of the Philippines, died in the city of Amoy,
Fookien province, Republic of China, leaving real and
personal properties in the Philippines and a house in
Amoy, Fookien province, China, and children by the first
marriage had with the late Manuela T. Cruz namely,
Apolonio, Concepción, Angel, Manuel, Federico, Ana,
Aurora, Emiliano and Jose, Jr. and a child named Silvino
by the second marriage had with Maria Natividad Lim
Billian who survived him. Intestate proceedings were
instituted in the Court of First Instance of Bulacan (special
proceedings No. 4892) and after hearing letters of
administration were issued to Apolonio Suntay. After the
latted's death Federico C. Suntay was appointed
administrator of the estate. On 15 October 1934 the
surviving widow filed a petition in the Court of First
Instance of Bulacan for the probate of a last will and
testament claimed to have been executed and signed in the
Philippines on November 1929 by the late Jose B. Suntay.
This petition was denied because of the loss of said will
after the filing of the petition and before the hearing
thereof and of the insufficiency of the evidence to establish
the loss of the said will- An appeal was taken from said
order denying the probate of the will and this Court held
the evidence before the probate court sufficient to prove
503
VOL. 95, JULY 31, 1954 503

Suntay vs. Suntay
the loss of the will and remanded the case to the Court of
First Instance of Bulacan for further proceedings (63 Phil.,
793). In spite of the fact that a commission from the
probate court was issued on 24 April 1937 for the taking of
the deposition of Go Toh, an attesting witness to the will,
on 7 February 1938 the probate court denied a motion for
continuance of the hearing sent by cablegram from China
by the surviving widow and dismissed the petition. In the
meantime the Pacific War supervened. After liberation,
claiming that he had found among the files, records and
documents of his late father a will and testament in
/
Chinese characters executed and signed by the deceased on
4 January 1931 and that the same was filed, recorded and
probated in the Amoy district court, Province of Fookien,
China, Silvino Suntay filed a petition in the intestate
proceedings praying for the probate of the will executed in
the Philippines on November 1929 (Exhibit B) or of the will
executed in Amoy, Fookien, China, on 4 January 1931
(Exhibit N).
There is no merit in the contention that the petitioner
Silvino Suntay and his mother Maria Natividad Lim
Billian are estopped from asking for the probate of the lost
will or of the ex oreign will because of the transf er or
assignment of their share right, title and interest in the
estate of the late Jose B. Suntay to Jose G. Gutierrez and
the spouses Ricardo Gutierrez and Victoria Goño and the
subsequent assignment thereof by the assignees to
Francisco Pascual and by the latter to Federico C. Suntay,
for the validity and legality of such assignments cannot be
threshed out in this proceedings which is concerned only
with the probate of the will and testament executed in the
Philippines on November 1929 or of the foreign will
allegedly executed in Amoy on 4 January 1931 and claimed
to have been probated in the municipal district court of
Amoy, Fookien province, Republic of China.
As to prescription, the dismissal of the petition for
probate of the will on 7 February 1938 was no bar to the
504

Suntay vs. Suntay
filing of this petition on 18 June 1947, or before the

expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the

execution and validity of the same be established, and the will is
proved to have been in existence at the time of the death of the
testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge,
nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will

are Go Toh, an attesting witness, Anastacio Teodoro and
Ana Suntay. Manuel Lopez, who was an attesting witness
to the lost will, was dead at the time of the hearing of this
alternative petition. In his deposition Go Toh testifies that
he was one of the witnesses to the lost will consisting of
twenty-three sheets signed by Jose B. Suntay at the bottom /
of the will and each and every page thereof in the presence
of Alberto Barretto, Manuel Lopez and himself and
underneath the testator's signature the attesting witnesses
signed and each of them signed the attestation clause and
each and every page of the will in the presence of the
testator and of the other witnesses (answers to the 31st,
41st, 42nd, 49th, 50th, 55th and 63rd interrogatories,
Exhibit D-1), but did not take part in the drafting thereof
(answer to the 11th interrogatory, Id.) ; that he knew the
contents of the will written in Spanish although he knew
very little of that language (answers to the 22nd and 23rd
interrogatories and to X-2 cross-interrogatory, Id.) and all
he knows about the contents of the lost will was revealed to
him by Jose B. Suntay at the time it was executed (answers
to the 25th interrogatory and to X-4 and X-8 cross-
interrogatories, Id.); that Jose B. Suntay told him that the
contents thereof are the same as those of the draft (Exhibit
B) (answers to the 33rd interrogatory and to X-8 cross-
interrogatory, Id.) which he saw in the
505
VOL. 95, JULY 31, 1954 505

Suntay vs. Suntay
office of Alberto Barretto in November 1929 when the will

was signed (answers to the 69th, 72nd, and 74th
interrogatories, Id); that Alberto Barretto handed the draft
and said to Jose B. Suntay: "You had better see if you want
any correction" (answers to the 81st, 82nd and 83rd
interrogatories, Id.) ; that "after checking Jose B. Suntay
put the 'Exhibit B' in his pocket and had the original signed
and executed" (answers to the 91st interrogatory, and to X-
18 cross-interrogatory, Id.); that Mrs. Suntay had the draft
of the will (Exhibit B) translated into Chinese and he read
the translation (answers to the 67th interrogatory, Id.);
that he did not read the will and did not compare it (check
it up) with the draft (Exhibit B) (answers to X-6 and X-20
cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934
in the house of her brother Apolonio Suntay she learned
that her father left a will "because of the arrival of my
brother Manuel Suntay, who was bringing along with him
certain document and he told us or he was telling us that it
was the will of our ex ather Jose B. Suntay which was
taken from Go Toh. . . ." (p. 524, t. s. n., hearing of 24
February 1948} ; that she saw her brother Apolonio Suntay
read the document in her presence and of Manuel and
learned of the adjudication made in the will by her father of
his estate, to wit: one-third to his children, one-third to
Silvino and his mother and the other third to Silvino.
Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t.
s. n. Id.) ; that "after Apolonio read that portion, then he
/
turned over the document to Manuel, and he went away,"
(p. 528, t. s. n., Id.). On cross-examination, she testifies
that she read the part of the will on adjudication to know
what was the share of each heir (pp. 530, 544, t. s. n., Id.)
and on redirect she testifies that she saw the signature of
her father, Go Toh, Manuel Lopez and Alberto Barretto (p.
546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November
1934 (p. 273, t. s. n., hearing of 19 January 1948), before
the last postponement of the hearing granted by the Court,
506

Suntay vs. Suntay
Go Toh arrived at his law office in the De los Reyes

Building and left an envelope wrapped in red handkerchief
[Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that
he checked up the signatures on the envelope Exhibit A
with those on the will placed in the envelope (p. 33, t. s. n.,
Id.); that the will was exactly the same as the draft Exhibit
B. (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go
Toh to Anastacio Teodoro and returned by the latter to the
former because they could not agree on the amount of fees,
the former coming to the latter's office straight from the
boat (p. 315, t. s. n., hearing of 19 January 1948) that
brought him to the Philippines from Amoy, and that
delivery took place in November 1934 (p. 273, t. s. n., Id.),
then the testimony of Ana Suntay that she saw and heard
her brother Apolonio Suntay read the will sometime in
September 1934 (p. 524, t. s. n., hearing of 24 February
1948), must not be true.
Although Ana Suntay would be a good witness because
she was testifying against her own interest, still the fact
remains that she did not read the whole will but only the
adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw
only the signature, of her father and of the witnesses Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,
Id.). But her testimony on cross-examination that she read
the part of the will on adjudication is inconsistent with her
testimony in chief that after Apolonio had read that part of
the will he turned over or handed the document to Manuel
who went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B. in the
office of Alberto Barretto in November 1929 when the will
was signed, then the part of his testimony that Alberto
Barretto handed the draft to Jose B. Suntay to whom he
said: "You had better see if you want any correction" and
that "after checking Jose B. Suntay put the 'Exhibit B' in
his pocket and had the original signed and executed"
cannot be true, for it was not the time for correcting the
/
507
VOL. 95, JULY 31, 1954 507

Suntay vs. Suntay
draft of the will, because it must have been corrected before

and all corrections and additions written in lead pencil
must have been inserted and copied in the final draft of the
will which was signed on that occasion. The bringing in of
the draft (Exhibit B) on that occasion is just to fit it within
the framework of the appellant's theory. At any rate, all of
Go Toh's testimony by deposition on the provisions of the
alleged lost will is hearsay, because he came to know or he
learned of them from information given him by Jose B.
Suntay and from reading the translation of the draft
(Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C.
Suntay who testifies that he read the supposed will or the
alleged will of his father and that the share of the surviing
widow, according to the will, is two-thirds of the estate (p.
229, t. s. n., hearing of 24 October 1947). But this witness
testified to oppose the appointment of a co-administrator of
the estate, for the reason that he had acquired the interest
of the surviving widow not only in the estate of her
deceased husband but also in the conjugal property (pp,
148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the
original will or just the copy thereof (Exhibit B) is not clear.
For him the important point was that he had acquired all
the share, participation and interest of the surviving widow
and of the only child by the second marriage in the estate of
his deceased father. Be that as it may, his testimony that
under the will the surviving widow would take two-thirds
of the estate of the late Jose B. Suntay is at variance with
Exhibit B. and the testimony of Anastacio Teodoro.
According to the latter, the third for strict legitime is for
the ten children; the third for betterment is for Silvino,
Apolonio, Concepcion and Jose Jr.; and the third for free
disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by
Jose B. Suntay placed in the envelope (Exhibit A) and that
it was in existence at the time of, and not revoked before,
508

Suntay vs. Suntay
his death, still the testimony of Anastacio Teodoro alone

falls short of the legal requirement that the provisions of
the lost will must be "clearly and distinctly proved by at
least two credible witnesses." Credible witnesses mean
/
competent witnesses and those who testify to facts from or
upon hearsay are neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the
early part of 1929 he prepared or drew up two wills for Jose
B. Suntay at the latter's request, the rough draft of the ex
irst will was in his own handwriting, given to Manuel
Lopez for the final draft or typing and returned to him;
that after checking up the final with the rough draft he
tore it and returned the final draft to Manuel Lopez; that
this draft was in favor of all the children and the widow
(pp. 392-4, 449, t. s. n., hearing of 21 February 1948) ; that
two months later Jose B. Suntay and Manuel Lopez called
on him and the former asked him to draw up another will
favoring more his wife and child Silvino; that he had the
rough draft of the second will typed (pp. 395. 449 t. s. n.,
Id.) and gave it to Manuel Lopez (p. 396. t. s. n., Id.); that
he did not sign as witness the second will of Jose B. Suntay
copied from the typewritten draft [Exhibit B] (p. 420, t. s.
n., Id.) ; that the handwritten insertions or additions in
lead pencil to Exhibit B. are not his (pp. 415—7 435-6, 457,
t. s. n., Id.) ; that the final draft of the first will made up of
four or five pages (p. 400, t. s. n., Id.) was signed and
executed, two or three months after Suntay and Lopez had
called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office
at the Cebu Portland Cement in the China Banking
Building on Dasmariñas street by Jose B. Suntay, Manuel
Lopez and a Chinaman who had all come ex rom Hagonoy
(p. 398, t. s. n., Id.); that on that occasion they brought an
envelope (Exhibit A) where the following words were
written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s.
n., Id.); that after the signing of the will it was
509
VOL. 95, JULY 31, 1954 509

Suntay vs. Suntay
placed inside the envelope (Exhibit A) together with an

inventory of the properties of Jose B. Suntay and the
envelope was sealed by the signatures of the testator and
the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n.,
Id.); that he again saw the envelope (Exhibit A) in his
house one Saturday in the later part of August 1934,
brought by Go Toh and it was then in perfect condition (pp.
405-6, 411, 440-2, t. s. n., Id.) ; that on the following
Monday Go Toh went to his law office bringing along with
him the envelope (Exhibit A) in the same condition; that he
told Go Toh that he would charge P25,000 as fee for
probating the will (pp. 406, 440-2, Id.) ; that Go Toh did not
leave the envelope (Exhibit A) either in his house or in his
law office (p. 407, t. s. n., Id.); that Go Toh said he wanted
to keep it and on no occasion did Go Toh leave it to him (pp.
409, 410, t. s. n., Id.).
/
The testimony of Go Toh taken and heard by Assistant
Fiscal F. B. Albert in connection with the complaint for
estafa filed against Manuel Suntay for the alleged
snatching of the envelope (Exhibit A), corroborates the
testimony of Alberto Barretto to the effect that only one
will was signed by Jose B. Suntay at his office in which he
(Alberto Barretto), Manuel Lopez and Go Toh took part as
attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh
testified before the same assistant fiscal that he did not
leave the will in the hands of Anastacio Teodoro (p. 26, t. s.
n., Exhibit 6). He said, quoting his own words, "Because I.
can not give him this envelope even though the contract (on
fees) was signed. I. have to bring that document to court or
to anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4
January 1931 in Amoy, China, the law on the point is Rule
78, Section 1. of the rule provides:
Wills proved and allowed in a foreign country, according to the

laws of such country, may be allowed, filed, and recorded by the
proper Court of First Instance in the Philippines.
510

Suntay vs. Suntay
Section 2. provides:
When a copy of such will and the allowance thereof, duly

authenticated, is filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the

Philippines, the court shall so allow it, and a certificate of its
allowance, signed by the Judge, and attested by the seal of the
court, to which shall be attached a copy of the will, shall be filed
and recorded by the clerk, and the will shall have the same effect
as if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China,

is a probate court must be proved. The law of China on
procedure in the probate or allowance of wills must also be
proved. The legal requirements for the execution of a valid
will in China in 1931 should also be established by
competent evidence. There is no proof on these points. The
unverified answers to the questions propounded by counsel
ex or the appellant to the Consul General of the Republic of
China set forth in Exhibits R-1 and R-2, objected to by
/
counsel for the appellee, are inadmissible, because apart
from the fact that the office of Consul General does not
qualify and make the person who holds it an expert on the
Chinese law on procedure in probate matters, if the same
be admitted, the adverse party would be deprived of his
right to confront and cross-examine the witness. Consuls
are appointed to attend to trade matters. Moreover, it
appears that all the proceedings had in the municipal
district court of Amoy were for the purpose of taking the
testimony of two attesting witnesses to the will and that
the order of the municipal district court of Amoy does not
purport to probate the will. In the absence of proof that the
municipal district court of Amoy is a probate court and on
the Chinese law of procedure in probate
511
VOL. 95, JULY 31, 1954 511

Suntay vs. Suntay
matters, it may be presumed that the proceedings in the

matter of probating or allowing a will in the Chinese courts
are the same as those provided for in our laws on the
subject. It is a proceedings in rem and for the validity of
such proceedings personal notice or by publication or both
to all interested parties must be made. The interested
parties in the case were known to reside in the Philippines.
The evidence shows that no such notice was received by the
interested parties residing in the Philippines (pp. 474, 476,
481, 503-4, t. s. n., hearing of 24 February 1948). The
proceedings had in the municipal district court of Amoy,
China, may be likened to a deposition or to a perpetuation
of testimony, and even if it were so it does not measure or
come up to the standard of such proceedings in the
Philippines for lack of notice to all interested parties and
the proceedings were held at the back of such interested
parties.
The order of the municipal district court of Amoy, China,
which reads, as follows:
ORDER:
SEE BELOW
The above minutes were satisf actorily confirmed by the

interrogated parties, who declare that there are no errors, after
said minutes were loudly read and announced actually in the
court. Done and subscribed on the Nineteenth day of the English
month of the 35th year of the Republic of China in the Civil
Section of the Municipal District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
/
(Exhibit N-13, p. 89 Folder of Exhibits.)
does not purport to probate or allow the will which was the
subject of the proceedings. In view thereof, the will and the
alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and ex un-
512

Suntay vs. Suntay
damental concepts and principles followed in the probate

and allowance of wills. Consequently, the authenticated
transcript of proceedings held in the municipal district
court of Amoy, China, cannot be deemed and accepted as
proceedings leading to the probate or allowance of a will
and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this
country.
The decree appealed from is affirmed, without
pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion,

JJ., concur.
PARÁS, C. J., dissenting:
As a preliminary statement we may well refer to the case of

Maria Natividad Lim Billian, petitioner and appellant, vs.
Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose
Suntay, oppositors and appellees, 63 Phil., 793-797, in
which the following decision was rendered by this Court on
November 25, 1936, holding that the will executed by Jose
B. Suntay who died in the City of Amoy, China, on May 14,
1934, was lost under the circumstances pointed out therein,
and ordering the return of the case to the Court of First
Instance of Bulacan for further proceedings:
"On May 14, 1934, Jose B. Suntay died in the City of Amoy,
China. He married twice, the first time to Manuela T. Cruz with
whom he had several children now residing in the Philippines,
and the second time to Maria Natividad Lim Billian with whom
he had a son.
"On the same date, May 14, 1934, Apolonio Suntay, eldest son
of the deceased by his first marriage, filed the latter's intestate in
the Court of First Instance of Manila (civil case No. 4892).
"On October 15, 1934, and in the same court, Maria Natividad
Lim Billian also instituted the present proceedings for the probate
of a will allegedly left by the deceased.
"According to the petitioner, before the deceased died in China
he left with her a sealed envelope (Exhibit A) containing his will
and, also another document (Exhibit B. of the petitioner) said to
be a true copy of the original contained in the envelope. The
/
513
VOL. 95, JULY 31, 1954 513

Suntay vs. Suntay
will in the envelope was executed in the Philippines, with Messrs.

Go Toh, Alberto Barreto and Manuel Lopez as attesting
witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the
petitioner, arrived in the Philippines with the will in the envelope
and its copy Exhibit B. While Go Toh was showing this envelope
to Apolonio Suntay and Angel Suntay, children by first marriage
of the deceased, they snatched and opened it and, after getting its
contents and throwing away the envelope, they fled.
"Upon this allegation, the petitioner asks in this case that the
brothers Apolonio, Angel, Manuel and Jose Suntay, children by
the first marriage of the deceased, who allegedly have the
document contained in the envelope which is the will of the
deceased, be ordered to present it in court, that a day be set for
the reception of evidence on the will, and that the petitioner be
appointed executrix pursuant to the designation made by the
deceased in the will.
"In answer to the court's order to present the alleged will, the
brothers Apolonio, Angel, Manuel and Jose Suntay stated that
they did not have the said will and denied having snatched it from
Go Toh.
"In view of the allegations of the petition and the answer of the
brothers Apolonio, Angel, Manuel and Jose Suntay, the questions
raised herein are: The loss of the alleged will of the deceased,
whether Exhibit B. accompanying the petition is an authentic
copy thereof, and whether it has been executed with all the
essential and necessary formalities required by law for its
probate.
"At the trial of the case on March 26, 1934, the petitioner put
two witnessess upon the stand, Go Toh and Tan Boon Chong, who
corroborated the allegation that the brothers Apolonio and Angel
appropriated the envelope in the circumstances above-mentioned.
The oppositors have not adduced any evidence counter to the
testimony of these two witnesses. The court, while making no
express finding on this fact, took it for granted in its decision; but
it dismissed the petition believing that the evidence is insufficient
to establish that the envelope seized from Go Toh contained the
will of the deceased, and that the said will was executed with all
the essential and necessary formalities required by law for its
probate.
"In our opinion, the evidence is sufficient to establish the loss
of the document contained in the envelope. Oppositors' answer
admits that, according to Barretto, he prepared a will of the
deceased to which he later become a witness together with Go Toh
and Manuel Lopez, and that this will was placed in an envelope
which was signed by the deceased and by the instrumental
witnesses. In court there was presented and attached to the case
an open and empty envelope signed by Jose B. Suntay, Alberto
/
514

Suntay vs. Suntay
Barretto, Go Toh and Manuel Lopez. It is thus undeniable that

this envelope Exhibit A is the same one that contained the will
executed by the deceased—drafted by Barretto and with the
latter, Go Toh and Manuel Lopez as attesting witnesses. These
tokens sufficiently point to the loss of the will of the deceased, a
circumstance justifying the presentation of secondary evidence of
its contents and of whether it was executed with all the essential
and necessary legal formalities.
"The trial of this case was limited to the proof of loss of the will,
and from what has taken place we deduce that it was not
petitioner's intention to raise, upon the evidence adduced by her,
the other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B. is a true copy of the will and
whether the latter was executed with all the formalities required
by law for its probate. The testimony of Alberto Barreto bears
importantly in this connection.
"Wherefore, the loss of the will executed by the deceased
having been sufficiently established, it is ordered that this case be
remanded to the court of origin for further proceedings in
obedience to this decision, without any pronouncement as to the
costs. So ordered"
On June 18, 1947, Silvino Suntay, the herein petitioner,

filed a petition in the Court of First Instance of Bulacan
praying "that an order be issued (a) either directing the
continuation of the proceedings in the case remanded by
the Supreme Court by virtue of its decision in G. R. No.
44276 and fixing a date for the reception of evidence of the
contents of the will declared lost, or the allowance, filing
and recording of the will of the deceased which had been
duly probated in China, upon the presentation of the
certificates and authentications required by Section 41,
Rule 123 (Yu Chengco vs. Tiaoqui supra), or both
proceedings concurrently and simultaneously; (6) that
letters of administration be issued to herein petitioner as
co-administrator of the estate of the deceased together with
Federico Suntay; and (c) that such other necessary and
proper orders be issued which this Honorable Court deems
appropriate in the premises." While this petition was
opposed by Federico C. Suntay, son of the deceased Jose B.
Suntay with his first wife, Manuela T. Cruz, the
515
VOL. 95, JULY 31, 1954 515

Suntay vs. Suntay
/
other children of the first marriage, namely, Ana Suntay,
Aurora Suntay, Concepcion Suntay, Lourdes Guevara Vda.
de Suntay, Manuel Suntay and Emiliano Suntay, filed the
following answer stating that they had no opposition
thereto; "Come now the heirs Concepcion Suntay, Ana
Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay,
Manuel Suntay, and Emiliano Suntay, through their
undersigned attorney, and, in answer to the alternative
petition filed in these proceedings by Silvino Suntay,
through counsel, dated June 18, 1947, to this Honorable
Court respectfully state that, since said alternative petition
seeks only to put into effect the testamentary disposition
and wishes of their late father, they have no opposition
thereto."
After hearing, the Court of First Instance of Bulacan
rendered on April 19, 1948, the following decision:
"This action is for the legalization of the alleged will of Jose B.

Suntay, deceased.
"In order to have a comprehensive understanding of this case,
it is necessary to state the background on which the alternative
petition of the herein petitioner Silvino Suntay has been based.
"The decision of the Supreme Court (Exhibit O), in re will of
the deceased Jose B. Suntay, 63 Phil., 793-797, is hereunder
produced:
(As quoted above)
"The above quoted decision of the Supreme Court was

promulgated on November 25, 1936 (Exhibit 0).
"The Clerk of the Court of Court of First Instance of Bulacan
notified the parties of the decision on December 15, 1936; and the
case was set for hearing on February 12, 1937, but it was
transferred to March 29, 1937 (Exhibit C), on motion of the then
petitioner Maria Natividad Lim Billian (Exhibit F). Again, it was
postponed until 'further setting' in the order of court dated March
18, 1937, upon motion of the petitioner (Exhibit H).
"In the meantime, the deposition of Go Toh was being sought
(Exhibit H).
"The hearing of the case was again set for February 7, 1936, by
order of the court dated January 5, 1938, upon motion of Emiliano
Suntay and Jose Suntay, Jr. On the same day of the hearing
which had been set, the petitioner, then, Maria Natividad Lim
Billian, sent a telegram from Amoy, China, addressed to
516

Suntay vs. Suntay
the Court of First Instance of Bulacan moving for the

postponement of the hearing on the ground that Atty. Eriberto de
Silva who was representing her died (Exhibit K). The court,
instead of granting the telegraphic motion for postponement,
/
dismissed the case in the order dated February 7, 1938 (Exhibit
L).
"On July 3, 1947, the petitioner Silvino Suntay filed a motion
for the consolidation of the intestate Estate of the deceased Jose
B. Suntay, Special Proceeding No. 4892 and the Testate Estate of
Jose B. Suntay, Special Proceeding No. 4952, which latter case is
the subject of the said alternative petition. The motion for the
merger and consolidation of the two cases was' granted on July 3,
1947.
"The oppositor, Federico C. Suntay, in the Testate Proceeding
filed a motion to dismiss the alternative petition on November 14,
1947, which was denied by the court in its resolution of November
22, 1947. The said oppositor not being satisfied with the ruling of
this court denying the motion to dimiss, filed before the Supreme
Court a petition for a writ of certiorari with preliminary
injunction, which was dismissed for lack of merit on January 27,
1948.
"In obedience to the decision of the Supreme Court (Exhibit 0)
and upon the alternative petition of Silvino Suntay, and, further,
upon the dismissal of the petition for a writ of certiorari with
preliminary injunction, the court was constrained to proceed with
the hearing of the probate of the lost will, the draft of which is
Exhibit B, or the admission and recording of the will which had
been probated in Amoy, China.
"The evidence for the petitioner, Silvino Suntay, shows that
Jose B. Suntay married twice; first to Manuela T. Cruz who died
on June 15, 1920 and had begotten with her Apolonio, now
deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora,
Emiliano and Jose, Jr., all surnamed Suntay, and second, to
Maria Natividad Lim Billian with whom he had as the only child
Silvino Suntay, the petitioner herein.
"Some time in November 1929, Jose B. Suntay executed his
last will and testament in the office of Atty. Alberto Barretto in
Manila, which was witnessed by Alberto Barretto, Manuel Lopez
and Go Toh. The will was prepared by said Alberto Barretto upon
the instance of Jose B. Suntay, and it was written in the Spanish
language which was understood and spoken by said testator.
After the due execution of the will, that is signing every page and
the attestation clause by the testator and the witnesses in the
presence of each other, the will was placed inside the envelope
(Exhibit A), sealed and on the said envelope the testator
517
VOL. 95, JULY 31, 1954 517

Suntay vs. Suntay
and the three subscribing witnesses also signed, after which it

was delivered to Jose B. Suntay.
"A year or so after the execution of the will, Jose B. Suntay
together with his second wife Maria Natividad Lim Billian and
Silvino Suntay who was then of tender age went to reside in
/
Amoy, Fookien, China, where he died on May 14, 1934. The will
was entrusted to the widow, Maria Natividad Lim Billian.
"Upon the death of Jose B. Suntay on May 14, 1934, Apolonio
Suntay, the oldest son now deceased, instituted the Intestate
Proceedings No. 4892, upon the presumption that no will existed.
Maria Natividad Lim Billian who remained in Amoy, China, had
with her the will and she engaged the services of the law firm of
Barretto and Teodoro for the probate of the will. Upon the request
of the said attorneys the will was brought to the Philippines by Go
Toh who was one of the attesting witnesses, and it was taken to
the law office of Barreto and Teodoro. The law firm of Barreto and
Teodoro was composed of Atty. Alberto Barreto and Judge
Anastacio Teodoro. The probate of the will was entrusted to the
junior partner Judge Anastacio Teodoro; and, upon the
presentation of the sealed envelope to him, he opened it and
examined the said will preparatory to the filing of the petition for
probate. There was a disagreement as to the fees to be paid by
Maria Natividad Lim Billian, and as she (through Go Toh) could
not agree to pay, P20,000 as fees, the will was returned to Go Toh
by Judge Anastacio Teodoro after the latter had kept it in his
safe, in his office, for three days.
"Subsequently, the will inside the envelope was snatched from
Go Toh by Manuel Suntay and Jose, Jr., which fact has been
established in the decision of the Supreme Court at the beginning
of this decision. Go Toh could recover the envelope (Exhibit A) and
the piece of cloth with which the envelope was wrapped (Exhibit
C).
"The Testate Proceeding was filed nevertheless and in lieu of
the lost will a draft of the will (Exhibit B) was presented as
secondary evidence for probate. It was' disallowed by this court
through Judge Buenaventura Ocampo, but on appeal the
Supreme Court remanded the case to this court for further
proceeding (Exhibit C).
"In the meantime, a Chinese will which was executed in Amoy
Fookien, China, on January 4, 1931, by Jose B. Suntay, written in
Chinese characters (Exhibit P) was discovered in Amoy, China,
among the papers left by Jose B. Suntay, and said will had been
allowed to probate in the Amoy District Court, China, which is
being also presented by Silvino Suntay for allowance and
recording in this court.
518

Suntay vs. Suntay
"The said petition is opposed by Federico C. Suntay on the main

ground that Maria Natividad Lim Billian and Silvino Suntay have
no more interest in the properties left by Jose B. Suntay, because
they have already sold their respective shares, interests and
participations. But such a ground of opposition is not of moment
in the instant case, because the proposition involved herein in the
/
legalization of the lost will or the allowance and recording of the
will which had been probated in Amoy, China.
"It is now incumbent upon this court to delve into the evidence
whether or not Jose B. Suntay, deceased, left a will (the draft of
which is Exhibit B) and another will which was executed and
another will which was executed and probated in Amoy, China.
"There is no longer any doubt that Jose B. Suntay while he was
still residing in the Philippines, had executed a will; such is the
conclusion of the Supreme Court in its decision (Exhibit O). That
the will was snatched and it has never been produced in court by
those who snatched it, and consequently considered lost, is also an
established fact.
"The contention of the oppositor, Federico C. Suntay, is that
the will that was executed by Jose B. Suntay in the Philippines
contained provisions which provided for equal distribution of the
properties among the heirs; hence, the draft (Exhibit B) cannot be
considered as secondary evidence, because it does not provide for
equal distribution, but it favors Maria Natividad Lim Billian and
Silvino Suntay. He relies on the testimony of Atty. Alberto
Barretto who declared that the first will which he drafted and
reduced into a plain copy was the will that was executed by Jose
B. Suntay and placed inside the envelope (Exhibit A).
"Granting that the first will which Atty. Alberto Barretto had
drafted became the will of Jose B. Suntay and it was snatched by,
and, therefore, it had fallen into the hands of, Manuel Suntay and
the brothers of the first marriage, it stands to reason that said
Manuel Suntay and brothers would have been primarily
interested in the production of said will in court, for obvious
reasons, namely, that they would have been favored. But it was
suppressed and 'evidence willfully suppressed would be adverse if
produced' (Section 69 (e), Rule 123 of the Rules of Court). The
contention, therefore, that the first will which was drafted by
Atty. Barretto was the one placed inside the envelope (Exhibit A)
is untenable.
"It might be said in this connection that the draft of the will
(Exhibit B) has been admitted by Atty. Alberto Barretto as
identical in substance and form to the second draft which he
prepared in typewriting; it differs only, according to him, in style.
He denied that the insertions in long hand in the said draft are
519
VOL. 95, JULY 31, 1954 519

Suntay vs. Suntay
in his own handwriting; however, Judge Anastacio Teodoro

averred that the said insertions are the handwriting of Atty.
Alberto Barretto. But when Atty. Alberto Barretto was asked to
show any manuscript of his for purposes of comparison, he
declined to do so alleging that he did not have any document in
his possession showing his handwriting notwithstanding the fact
that he was testifying in his own house at 188 Sta. Mesa
Boulevard, Manila. He further testified that the first will he
/
drafted contained four or five pages, but the second draft
contained twenty-three pages; that he declared in one breath that
he did not read the will any more when it was signed by the
testator and the attesting witnesses because it would take up
much time, and in the same breath he declared that he checked it
before it was signed; and that he destroyed the draft of the first
will which was in his own handwriting, but he delivered the draft
of the second will which he prepared to Jose B. Suntay in the
presence of Manuel Lopez, now deceased.
"Whether or not the final plain copy of the draft of the will
(Exhibit B) was executed by the testator, Jose B. Suntay, and
attested by the subscribing witnesses, Atty. Alberto Barretto,
Manuel Lopez and Go Toh, is the pivotal point in this instant
case. Judge Anastacio Teodoro testified that he opened the sealed
envelope when it was given to him by Go Toh preparatory to the
presentation of the petition for the probate of the said will. As the
lawyer entrusted with that task, he had to examine the will and
have it copied to be reproduced or appended to the petition. He
could not do otherwise if he is worth his salt as a good lawyer; he
could not perform the stunt of 'blind flying' in the judicial
firmament. Every step must be taken with certainty and precision
under any circumstances. He could not have talked about the
attorney's fees with Go Toh, unless he has not examined the will
beforehand. And, declaring that it was the exact draft of the will
that was inside the envelope (Exhibit A), the testimony of Atty.
Alberto Barretto to the contrary notwithstanding.
"The testimony of Judge Anastacio Teodoro is corroborated by
Go Toh, one of the attesting witnesses, in his deposition (Exhibit
D-1).
"Ana Suntay, one of the heirs and who would be affected
adversely by the legalization of the will in question, also testified
on rebuttal that she saw the original will in the possession of
Manuel Suntay, immediately after the snatching. She read it and
she particularly remembers the manner in which the properties
were to be distributed. Exhibit B, was shown to her on the witness
stand and she declared that the provision regarding the
520

Suntay vs. Suntay
distribution of the properties in said Exhibit B, is the same as

that contained in the original will. Said testimony of Ana Suntay,
therefore, belies the testimony of Atty. Alberto Barretto.
"With respect to the proof of lost or destroyed will, Section 6 of
Rule 77 provides as follows:
'No will shall be proved as a lost or destroyed will unless the
proved to have been in existence at the time of the death of the
testator, or it is shown to have been fraudulently or accidentally
/
judge, under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.'
"Section 8 of the same Rule provides as follows:
'lf it appears at the time fixed for the hearing that the
subscribing witnesses are dead or insane, or that none of them
resides in the Philippines the court may admit the testimony of
other witnesses to prove the sanity of the testator, and the due
execution of the will; and as evidence of the due execution of the
will, it may admit proof of the handwriting of the testator and of
the subscribing witnesses, or any of them.'
"Manuel Lopez as one of the subscribing witnesses is dead.
Atty. Alberto Barretto and Go Toh are still living. The former
testified during the hearing, while Go Toh's deposition was
introduced in evidence which was admitted. In the absence of the
testimony of Manuel Lopez, deceased, the testimony of Judge
Anastacio Teodoro and Ana Suntay was received.
"It is an established fact that the will, draft of which is Exhibit
B, was lost or destroyed; that it was executed and valid and that
it existed at the time of the death of Jose B. Suntay. These
circumstances also apply to the will (Exhibit P) which was
executed in Amoy, China.
"The contents of the Chinese will is substantially the same as
the draft (Exhibit B). Granting that the will executed in the
Philippines is non-existent as contended by the oppositor,
although the findings of this court is otherwise, the will executed
and probated in China should be allowed and recorded in this
court. All the formalities of the law in China had been followed in
its execution, on account of which it was duly probated in the
Amoy District Court. There is no cogent reason, therefore, why it
should not be admitted and recorded in this jurisdiction.
"The said will (Exhibit P) in Chinese characters is presented as
an alternate in case the will executed in the Philippines would
521
VOL. 95, JULY 31, 1954 521

Suntay vs. Suntay
will, the draft of which is Exhibit B, has been duly executed in the
Philippines by Jose B. Suntay.
"Rule 78 of the Rules of Court covers the allowance of will
proved outside of the Philippines and administration of estate
thereunder.
"Section 1. of said rule provides:
'Wills proved and allowed in the United States, or any state or
territory thereof, or in foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines.'
"Section 2. of the same rule provides:
'When a copy of such will and the allowance thereof, duly
authenticated, is filed with a petition for allowance in the
/
Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance.'
"This court has delved deep into the evidence adduced during
the hearing with that penetrating scrutiny in order to discover the
real facts; it has used unsparingly the judicial scapel; and it has
winnowed the evidenced to separate the grain from the chaff. All
the facts lead to the inevitable conclusion that Jose B. Suntay, in
his sound and disposing mind and not acting under duress or
undue influence, executed the will which is lost, the draft of which
is Exhibit B, with all the necessary formalities prescribed by law.
He, likewise, executed the second will (Exhibit P) in Amoy, China,
which has been duly probated in Amoy District Court,—a
corroborative evidence that the testator really executed the will.
Copies of the said wills duly certified and under the seal of the
court are appended hereto, marked Exhibits B) and P, and they
form part of this decision.
"In view of the foregoing considerations, the court is of the
opinion and so declares that the draft of the will (Exhibit B) is, to
all legal intents and purposes, and testament of the deceased Jose
B. Suntay. With costs against the oppositor, Federico C. Suntay."
Oppositor Federico C. Suntay filed on May 20, 1948, a

motion for new trial and to set aside the decision rendered
on April 19, 1948, to which the petitioner filed an
opposition, followed by a reply filed by the oppositor and an
answer on the part of the petitioner. Without reopening
522

Suntay vs. Suntay
the Court of First Instance of Bulacan, on September 29,

1948, promulgated the following resolution setting aside
his first decision and disallowing the wills sought to be
probated by the petitioner in his alterative petition filed on
June 18, 1947:
"This is a motion for new trial and to set aside the decision
legalizing the will of Jose B. Suntay and allowing and recording
another will executed by him in Amoy, China.
"By virtue of this motion, this court is constrained to go over
the evidence and the law applicable thereto with the view of
ascertaining whether or not the motion is well founded. Both
parties have presented extensive memoranda in support of their
respective contentions.
"This court has gone over the evidence conscientiously, and it
reiterates its findings of the same facts in this resolution, whether
or not the facts established by the petitioner, Silvino Suntay,
warrant the legalization of the lost will and the allowance and
recording of the will that was executed in Amoy, China, is
therefore, the subject of this instant motion. /
"A. As to the legalization of the Lost Will.—There is no
question in the mind of this court that the original will which Jose
B. Suntay, deceased executed in the Philippines in the year 1929
was lost (Exhibit 0, Decision of the Supreme Court). The evidence
adduced by the petitioner during the hearing has established
through the testimony of Judge Anastacio Teodoro and that of Go
Toh (an attesting witness) that the will was executed by Jose B.
Luntay, deceased, with all the formalities required by law. For the
purpose of legalizing an original and existing will, the evidence on
record is sufficient as to the execution and attesting in the
manner required by law.
"Section 8 of Rule 77 provides as follows:
'SEC. 8. Proof when witnesses dead 'or insane or do not reside
in the Philippines.—If it appears at the time fixed for the hearing
that the subscribing witnesses are dead or insane, or that none of
them resides in the Philippines, the court may admit the
testimony of other witnesses to prove the sanity of the testator,
and the due execution of the will; and as evidence of the execution
of the will, may admit proof of the handwriting of the testator and
of the subscribing witnesses, or any of them.' "Section 11 of said
rule also provides as follows:
'SEC. 11. Subscribing witnesses produced or accounted for
where contest.—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 of them must
523
VOL. 95, JULY 31, 1954 523

Suntay vs. Suntay
be satisfactorily shown to the court. If all or some of the

subscribing witnesses are present in the Philippines, but outside
the province where the will has been filed, their deposition must
be taken. If all or some of the subscribing witnesses produced and
examined testify against the due execution of the will, or do not
remember having attested to it, or are otherwise of doubtful
credibility, the will may be allowed if the court is satisfied from
the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner
required by law."
"The three attesting witnesses were Manuel Lopez, deceased
Alberto Barreto and Go Toh. The last two Witnesses are still
living; the former testified against and the latter in favor. In other
words, the attesting witness, Go Toh, only, testified in his
deposition in favor of the due execution of the will. Hence, the
petitioner presented another witness, Judge Anastacio Teodoro, to
establish and prove the due execution of the said will. Ana Suntay
was also presented as a witness in rebuttal evidence. The
testimony of Go Toh in his deposition as an attesting witness,
coupled with the testimony of Judge Anastacio Teodoro who was
able to examine the original will that was executed by Jose B.
/
Suntay, deceased, when it was given to him by Go Toh for the
purpose of filing the petition in court for its legalization, and could
recognize the signitures of the testator as well as of the three
attesting witnesses on the said original will is sufficient to
convince the court that the original will was executed by the
deceased Jose B. Suntay with all the formalities required by law.
The original will, therefore, if it was presented in court to probate
would be allowed to all legal intents and purposes. But it was not
the original will that was presented, because it was lost, but an
alleged draft (Exhibit B) of the said original will which does not
bear the signature of the testator and any of the attesting
witness. The original will was duly executed with all the
formalities required by law, but it was unfortunately lost; and the
curtain falls for the next setting.
"The Court is now confronted with the legalization of the lost
will—whether or not the draft (Exhibit B) should be admitted as
secondary evidence in lieu of the lost will and allowed to probate.
"Section 6 of Rule 77 provides as follows:
'SEC. 6. Proof of lost or destroyed will—Certificate thereupon.—
No will shall be proved as a lost will or destroyed will unless the
proved to have been in existence at the time of the death of
524

Suntay vs. Suntay
the testator, or is shown to have been fraudulently or accidentally

Judge, under the seal of the court and the certificate must be filed
and recorded as other wills are filed and recorded.' (Italic Court's)
"From the above quoted provision of the law, it is clear that the
petitioner should not only establish the execution and validity of
the will, its existence at the time of the death of the testator or its
fraudulent and accidental destruction in the lifetime of the
testator without his knowledge, but also must prove its provisions
clearly and distinctly by at least two credible witnesses. The exact
language of the clause in the above quoted provision of the law is
'nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses.' The legalization of a lost will is not
so easy, therefore, as that of an original will. The question,
therefore, is boiled down to, and projected on the screen, in a very
sharp focus; namely, the execution and validity must be
established and the provisions must be clearly and distinctly
proved by at least credible witnesses.
"Granting that the execution and validity of the lost will have
been established through the testimony of Judge Anastacio
Teodoro and Go Toh, and perhaps superficially by the rebuttal
witness, Ana Suntay, does it follow that the provisions of the lost
/
will have been clearly and distinctly proved by at least two
credible witnesses? A careful review of the evidence has revealed
that at most the only credible witness who testified as to the
provisions of the will was Judge Anastacio Teodoro, and yet he
testified on the provisions of the lost will with the draft (Exhibit
B) in his hands while testifying. It may be granted, however, that
with or without the draft of the will (Exhibit B) in his hands, he
could have testified clearly and distinctly on the provisions of the
said lost will, because he had kept the will in his safe, in his office,
for three days, after opening it, and he is well versed in Spanish
language in which the will as written. But did the attesting
witness Go Toh, testify in his deposition and prove clearly and
distinctly the provisions of the lost will? He did not, and he could
not have done so even if he tried because the original will was not
read to him nor by him before or at the signing of the same. It was
written in Spanish and he did not and does not understand the
Spanish language. Neither was there any occasion for him to have
the contents of the said will, after its execution and sealing inside
the envelope (Exhibit A), read to him be
525
VOL. 95, JULY 31, 1954 525

Suntay vs. Suntay
cause it was opened only when Judge Teodoro had examined it

and then subsequently snatched from Go Toh. Ana Suntay on
rebuttal did not, likewise, prove clearly and distinctly the
provisions of the said lost will because she has not had enough
schooling and she does possess adequate knowledge of the
Spanish language as shown by the fact that she had to testify in
Tagalog on the witness stand.
"It is evident, therefore, that although the petitioner has
established the execution and validity of the lost will, yet he has
not proved clearly and distinctly the provisions of the will by at
least two credible witnesses..
"B. As to the Allowance and Recording of the will Executed in
Amoy, China.—Jose B. Suntay, while he was residing in China
during the remaining years of his life, executed also a will,
written in Chinese characters, the translation of which is marked
Exhibit P. It was allowed to probate in the District Court of Amoy,
China. The question is whether or not the said will should be
allowed and recorded in this jurisdiction.
"Section 1. of Rule 78 provides as follows:
'SEC. 1. Will proved outside Philippines may be allowed here.—
Will proved and allowed in the United States, or any state or
territory thereof, or in a foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and
recorded by the proper court of First Instance in the Philippines.'
"Section 2. of the same Rule also provides:
'SEC. 2. Notice of hearing for allowance.—When a copy of such
will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines by the executor or other
/
person interested, in the Court having jurisdiction, such court
shall fix a time and place for the hearing, and cause notice thereof
to be given as in case of an original will presented for allowance.'
"Sections 41 and 42 of Rule 123 provides as follows:
'SEC. 41. Proof of Public or official record.—An official record
or an entry therein, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested
by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If
the office in which the record is kept is within the United States
or its territory, the certificate may be made by a judge of a court
of record of the district or political subdivision in which the record
is kept, authenticated by the seal of the court, or may be made by
any public officer having a seal of the office and having official
duties in the district or
526

Suntay vs. Suntay
political subdivision in which the record is kept, authenticated by

the seal of his office. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of
embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the
United States stationed in the foreign country in which the record
is kept, and authenticated by the seal of his office.'
'SEC. 42. What attestation of copy must state.—Whenever a
copy of writing is attested for the purpose of evidence, the
attestation must state, in substance, that the copy is a correct
copy of the original, or a specific Apart thereof, as the case may
be. The attestation must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court having a
seal, under the seal of such court.'
"In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600,
our Supreme Court said:
'Section 637 of the Code of Civil Procedure says that wills
proved and allowed in a foreign country, according to the laws of
such country, may be allowed, filed, and recorded in the Court of
First Instance of the province in which the testator has real or
personal estate on which such will may operate; but section 638
requires that the proof of the authenticity of a will executed in a
foreign country must be duly "authenticated". Such
authentication, considered as a foreign judicial record, is
prescribed by section 304, which requires the attestation of the
clerk or of the legal keeper of the records with the seal of the court
annexed, if there be a seal, together with a certificate of the chief
judge or presiding magistrate that the signature of either of the
functionaries attesting the will is genuine, and, finally, the
certification of the authenticity of the signature of such judge or
presiding magistrate, by the ambassador, minister, consul, vice
/
consul or consular agent of the United States in such foreign
country. And, should the will be considered, from an
administrative point of view, as a mere official document "'of a
foreign country", it may be proved, "by the original, or by a copy
certified by the legal keeper thereof, with a certificate, under the
seal of the country or sovereign, that the document is a valid and
subsisting document of such country, and that the copy is duly
certified by the officer having the legal custody of the original".
(Sec. 313, par. 8).'
"In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613,
our Supreme Court said:
'lt is the theory of the petitioner that the alleged 'will was
executed in Elkins, West Virginia, on November 3, 1925, by Hix
527
VOL. 95, JULY 31, 1954 527

Suntay vs. Suntay
who had his residence in that jurisdiction, and that the laws of
West Virginia govern. To this end, there was submitted a copy of
section 3868 of Acts 1882, c. 84 as found in West Virginia Code,
Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as
certified to by the Director of the National Library. But this was
far from compliance with the law. The laws of a foreign
jurisdiction do not prove themselves in our courts. The courts of
the Philippine Islands are not authorized to take judicial notice of
the laws of the various States of the American Union. Such laws
must be proved as facts. (In re Estate of Johnson (1918), 39 Phil.,
156.) Here the requirements of the law were not met. There was
no showing that the book from which an extract was taken was
printed or published under the authority of the State of West
Virginia, as provided in section 300 of the Code of Civil Procedure.
Nor was the extract from the law attested by the certificate of the
officer having charge of the original under the seal of the\ State
of West Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract
from the laws of West Virginia was in force at the time the alleged
will was executed.
'lt was also necessary for the petitioner to prove that the
testator had his domicile in West Virginia and not in the
Philippine Islands. The only evidence introduced to establish this
fact consisted of the recitals in the alleged will and the testimony
of the petitioner.
'While the appeal was pending submission in this court, the
attorney for the appellant presented an unverified petition asking
the court to accept as part of the evidence the documents attached
to the petition. One of these documents discloses that a paper
writing purporting to be the last will and testament of Edward
Randolph Hix, deceased, was presented for probate on June 8,
1929, to the clerk of Randolph County, State of West Virginia, in
vacation, and was duly proven by the oaths of Dana Vansley and
Joseph L. Madden, the subscribing witnesses thereto, and ordered
/
to be recorded and filed. It was shown by another document that
in vacation, on June 8, 1929, the clerk of court of Randolph
County, West Virginia, appointed Claude E. Maxwell as
administrator, cum testamento annexo, of the estate of Edward
Randolph Hix, deceased . . . However this may be no attempt has
been made to comply with the provisions of sections 637, 638, and
639 of the Code of Civil Procedure, for no hearing on the question
of the allowance of a will said to have been proved and allowed in
West Virginia has been requested. * * *.'
"Granting that the will of Jose B. Suntay which was executed
in Amoy, China, was validly done in accordance with the law of
the
528

Suntay vs. Suntay
Republic of China on the matter, is it necessary to prove in this

jurisdiction the existence of such law in China as a prerequisite to
the allowance and recording of said will? The answer is in the
affirmative as enunciated in Fluemer vs. Hix, supra, and in Yañez
de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the
Supreme Court said:
'A foreign law may be proved by the certificate of the officer
having in charge of the original, under the seal of the state or
country. It may also be proved by an official copy of the same
published under the authority of the particular state and
purporting to contain such law. (Secs. 300 and 301, Act No. 190.),
(Syllabus.)
"The provisions of section 300 and 301 of the Code of Civil
Procedure (Act No. 190) are as follows:
'SEC. 300. Printed laws of the State or Country.—Books printed
or published under the authority of the United States, or one of
the States of the United States, or a foreign country, and
purporting to contain statutes, codes, or other written law of such
State or country or proved to be commonly admitted in the
tribunals of such State or country an evidence of the written law
thereof, are admissible in the Philippine Islands are evidence of
such law.
'SEC. 301. Attested copy of foreign laws.—A copy of the written
law or other public writing of any state or country, attested by the
certificate of the officer having charge of the original, under the
seal of the state or country, is admissible as evidence of such law
or writing.'
"The petitioner has presented in evidence the certification of
the Chinese Consul General, Tsutseng T. Shen, of the existence of
the law in China (Exhibit B-3), relative to the execution and
probate of the will executed by Jose B. Suntay in Amoy, China
(Exhibit P). Is that evidence admissible, in view of the provisions
of Sections 41 and 42 of the Rules of the Rules of Court. Is the
said certification of the Chinese Consul General in the Philippines
/
a substantial compliance with the provisions of the above
mentioned section 41 and 42 of our Rules of Court?
"This court has its doubts as to the admissibility in evidence of
the Chinese Consul General in the Philippines of the existence of
the laws of Republic of China relative to the execution and
probate of a will executed in China. Such law may exist in China,
but—
'An official record or an entry therein, when admissible for any
purpose, may be evidence by an official publication thereof or by a
copy attested by the officer having the legal custody of the record,
or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. *
* * If the office in which the record is kept is in a foreign coun
529
VOL. 95, JULY 31, 1954 529

Suntay vs. Suntay
try, the certificate may be made by a secretary of embassy or

legation, consul general, consul, vice consul, or consular agent or
by any officer in the foreign service of the United States stationed
in the foreign country in which the record is kept, and
authenticated by the seal of his office.' (Sec. 41 of Rule 123.)
"The law of the Republic of China is a public or official record
and it must be proved in this jurisdiction through the means
prescribed by our Rules of Court. It is, therefore, obvious that the
Chinese Consul General in the Philippines who certified as to the
existence of such law is not the officer having the legal custody of
the record, nor is he a deputy of such officer. And, if the office in
which the record is kept is in a foreign country, the certificate
may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in
the foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal
of his office.
It is clear, therefore, that the above provisions of the Rules of
Court (Rule 123, sec. 41) not having been complied with, the
doubt of this court has been dissipated, and it is of the opinion
and so holds that the certification of the Chinese Consul General
alone is not admissible as evidence in the jurisdiction.
"The evidence of record is not clear as to whether Jose B.
Suntay, who was born in China, but resided in the Philippines for
a long time, has become a Filipino citizen by naturalization, or he
remained a citizen of the Republic of China. The record does not,
likewise, show with certainty whether or not he had changed his
permanent domicile from the Philippines to Amoy, China. His
change of permanent domicile could only be inferred. But the
question of his permanent domicile pales into insignificance in
view of the overtowering fact that the law of China pertinent to
the allowance and recording of the said will in this jurisdiction
has been satisfactorily established by the petitioner.
/
"Both the petitioner and the oppositor have extensively urged
in their respective memorandum and in the oral argument in
behalf of the oppositor the question of estoppel. The consideration
of the points raised by them would open the door to the
appreciation of the intrinsic validity of the provisions of the will
which is not of moment at the present stage of the proceeding.
While the probate of a will is conclusive as to the compliance with
all formal requisites necessary to the lawful execution of the will,
such probate does not affect the intrinsic validity of the provisions
of the will.
530

Suntay vs. Suntay
With respect to the latter the will is governed by the substantive

law relative to descent and distribution. (In re Johnson, 39 Phil.,
157).
"!N VIEW OF THE FOREGOING, and upon reconsideration,
the previous decision rendered in this case allowing the will
(Exhibit B) and allowing and recording the foreign will (Exhibit P)
is set aside; and this court is of the opinion and so holds that the
said two wills should be, as they are hereby disallowed. Without
special pronouncement as to costs."
It is very significant that in the foregoing resolution, the

Court of First Instance of Bulacan "reiterates its finding of
the same facts in this resolution," and merely proceeds to
pose the sole question "whether or not the facts established
by the petitioner, Silvino Suntay, warrant the legalization
of the lost will and allowance and recording of the will that
was executed in Amoy, China." The somersault executed by
the trial court is premised on the ground that "although the
petitioner has established the execution and validity of the
lost will, yet he has not proved clearly and distinctly the
provisions of the will by at least two credible witnesses";
and that, assuming that the will of Jose B. Suntay executed
in Amoy, China, was in accordance with the law of the
Republic of China, the certification of the Chinese Consul
General in the Philippines as the existence of such law is
not admissible evidence in this jurisdiction. In effect the
resolution on the motion for reconsideration promulgated
by the trial court, and the decision of the majority herein,
adopt the position that the testimony of Judge Anastacio
Teodoro as to the provisions of the lost will, while credible
and perhaps sufficient in extent, is not corroborated by the
witnesses Go Toh and Ana Suntay and, therefore, falls
short of the requirement in section 6, Rule 77, of the Rules
of Court that the provisions of the lost will must be "clearly
and distinctly proved by at least two witnesses." That this
requirement was obviously construed to mean that the
exact provisions are to be established, may be deduced from
/
the following dialogue between his Honor, Judge
Potenciano Pecson, and Attorney Teofilo Sison, new counsel
for oppositor Federico C. Suntay, who appeared
531
VOL. 95, JULY 31, 1954 531

Suntay vs. Suntay
for the first time at the ex parte hearing of oppositor's

motion for new trial on September 1, 1949:
"COURT: However, Rule 77, Section 6, provides in proving a lost

will, the provisions of the lost will must be distinctly stated and
certified by the Judge.
"ATTY. TEOFILO SISON: Yes, Your Honor.
"COURT: That presupposes that the judge could only certify to
the exact provisions of the will from the evidence presented.
"ATTY. TEOFILO SISON: That is our contention, provided
that provision is clearly established by two credible witnesses so
that the Court could state that in the decision, we agree, that is
the very point.
(t s. n. 75, Session of Sept. 1, 1948)"
The sound rule, however, as we have found- it to be, as to

the degree of proof required to establish the contents of a
lost or destroyed will, is that there is sufficient compliance
if two witnesses have substantiated the provisions affecting
the disposition of the testator's properties; and this is
especially necessary to prevent the "perpetration of fraud
by permitting a presumption to supply the suppressed
proof," to keep a wrong-doer from utilizing the rule as his
"most effective weapon," or to avoid the enjoyment of a
"premium from the rascality of one whose interests might
suggest the destruction of a will."
"Section 1865 of the Code requires that the provisions of a lost

will must be clearly and distinctly proved by at least two credible
witnesses before it can be admitted to probate; but this section
must receive a liberal construction (Hook vs. Pratt, 8 Hun.
102109) and its spirit is complied with by holding that it applies
only to those provisions which affect the disposition of the
testator's property and which are of the substance of the will."
"The allegations of the contents of the will are general, and
under ordinary circumstances, would be in sufficient; but the fact
alleged, if proven as alleged, would certainly authorize the
establishment of the will so far as its bequests are concerned. To
require that a copy of the will or the language of the bequests, in
detail, should be pleaded, where no copy has been preserved, and
where the memory of the witnesses does not hold the exact words,
would not only deny the substance for mere form, but would offer
a premium upon the rascality of one whose interests might
suggest the destruction of a will. As said in Anderson vs. Irwin,
101 111. 411: 'The instrument in controversy having been
/
532

Suntay vs. Suntay
destroyed without the fault of the defendant in error * * * and

there not appearing to be any copy of it in existence, it would be
equivalent to denying the complainant relief altogether to require
her to prove the very terms in which it was conceived. All that
could reasonably be required of her under the circumstances could
be to show in general terms the disposition which the testator
made of his property by the instruments; that it purported to be
his will and was duly attested by the requisite number of
witnesses.' In Allison vs. Allison, 7 Dana 91, it was said in
speaking of the character and extent of proof required in such a
case:' nor is there any just ground to object to the proof because
the witnesses have not given the language of the will or the
substance thereof. They have given the substance of the different
devises as to the property or interest devised, and to whom devised
and we would not stop, in the case of a destroyed will, to scan with
rigid scrutiny the form of the proof, provided we are satisfied of the
substance of its provisions.'" (Joses vs. Casler 139 Ind. 392, 38 N.
E. 812).
"The evidence in the case falls short of establishing the
existence of such a writing, except as it may be presumed, under
the maxim Omnia preasumuntur in odium spoliateris." There was
evidence tending to show that the second will of Anne Lambie was
in the possession of Francis Lambie, and that it came to the hands
of the proponents, warranting the inference that it has been
suppressed or destroyed. If from this evidence the jury found such
paper destroyed the law permits the presumption that it was
legally drawn and executed, notwithstanding the terms of the
statute, which requires the revoking instrument to be formally
executed. // a will be lost, secondary evidence may be given of its
contents; if suppressed or destroyed, the same is true; and, if
necessary the law will prevent the perpetration of a fraud by
permitting a presumption to supply the suppressed proof. We
cannot assent to the proposition that the statute is so right as to be
the wrongdoer's most effective weapon. The misconduct once
established to the satisfaction of the jury, it is no hardship to the
wrongdoer to say. 'Produce the evidence in your possession, or we
will presume that your opponent's contention is true.' When one
deliberately destroys, or purposely induces another to destroy, a
written instrument subsequently become a matter of judicial
inquiry between the spoliator and an innocent party, the latter will
not be required to make strict proof of the contents of such
instrument in order to establish a right founded thereon. Brook,
Leg. Max. 576, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's
Estate, 97 Mich. 55, 56 N. W. 225)
Judged from the standard set forth in the foregoing

authorities, and bearing in mind that the circumstances
/
533
VOL. 95, JULY 31, 1954 533

Suntay vs. Suntay
of this case lead to the only conclusion that the loss of the
will in question is of course imputable to those whose
interests are adverse to the petitioner and the widow Lim
Billian, we have no hesitancy in holding the view that the
dispositions of the properties left by the deceased Jose B.
Suntay as provided in his will which was lost or snatched
in the manner recited in the decision of this Court in the
case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been
more than sufficiently proved by the testimony of Judge
Anastacio Teodoro, Go Toh, and Ana Suntay, supported
conclusively by the draft of the lost will presented in
evidence as Exhibit "B", and even by the testimony of
oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first
decision of April 19, 1948, made the following express
findings with respect to the testimony of Judge Teodoro:
"Judge Anastacio Teodoro testified that he opened the
sealed envelope when it was given to him by Go Toh
preparatory to the presentation of the petition for the
probate of the said will. As the lawyer entrusted with that
task, he had to examine the will and have it copied to be
reproduced or appended to the petition. He could not do
otherwise if he is worth his salt as a good lawyer. He could
not perform the stunt of 'blind flying' in the judicial
firmament. Every step must be taken with certainty and
precision under any circumstances. He could not have
talked about the attorney's fees with Go Toh, unless he has
not examined the will beforehand. And, when he was
shown Exhibit B, he did not hesitate in declaring that it
was the exact draft of the will that was inside the envelope
(Exhibit A), the testimony of Atty. Alberto Barretto to the
contrary notwithstanding."
We should not forget, in this connection, that in the
resolution on the motion for reconsideration the trial Judge
reiterated the findings in his decision, although as regards
the testimony of Judge Teodoro admittedly "the only
credible witness who testified as to the provisions of the
will," he observed that Judge Teodoro had
534

Suntay vs. Suntay
the draft Exhibit "B" in his hands while testifying. We

cannot see any justification for the observation, assuming
that Judge Teodoro consulted the draft, since even the trial
/
Judge granted that he "could have testified clearly and
distinctly on the provisions of the said lost will, because he
had kept the will in his safe, in his office, for three days,
after opening it, and he is well versed in Spanish language
in which the will was written." As a matter of fact,
however, 'it is not true that Judge Teodoro had the draft in
question before him while testifying as may be seen from
the following passages of the transcript:
"Q. And, have you read that will which was inside this envelope,
Exhibit A?—"A. Yes.
"Q. Do you remember more or less the contents of the will?
"ATTY. FERRIN: With our objection, the best evidence is
original will itself, Your Honor.
"ATTY. RECTO: We are precisely proving by means of
secondary evidence, the contents of the will, because according to
the Supreme Court, and that is a fact already decided, that the
will of Jose B. Suntay was lost and that is res adjudicata.
"Court: Witness may answer.
"WITNESS: I. remember the main features of the will because
as I. said I. was the one fighting for the postponement of the
hearing of the intestate case because I. was asked by Don Alberto
Barretto to secure the postponement until the will that was
executed by the deceased is sent here by the widow from China,
with whom we communicated with several letters, and when the
will arrived I. had to check the facts as appearing in the will, and
examined fully in connection with the facts alleged in the
intestate, and there was a striking fact in the intestate that
Apolonio Suntay has.
"ATTY. FERRIN: (Interrupting) May we ask that the witness
answer categorically the questions of Atty. Recto, it seems that
the answers of the witness are kilometric . . .
"ATTY. RECTO: Sometimes the question cannot be answered
fully unless the witness would relate and give all the ex acts.
"COURT: The Attorney for the Administrator may move for the
striking out of any testimony that is not responsive to the
question.
"ATTY. FERRIN: That is why, our objection, the answer is out
of the question.
"COURT: Atty. Recto may propound another question.
"ATTY. RECTO: I. heard the witness was saying something
and he has not finished the sentence, and I. want to ask the Court
just to allow the witness to finish his sentence.
535
VOL. 95, JULY 31, 1954 535

Suntay vs. Suntay
"COURT: You may finish.

"WITNESS: "A. There was a sentence, the point I. was trying
to check first was whether the value of the estate left by the
deceased was SIXTY THOUSAND PESOS (P60,000.00) as
/
Apolonio Suntay made it appear in his petition, and when I.
looked at the original will, I. found out that it was several
hundred thousand pesos, several thousands of pesos, hundreds of
pesos, that was very striking fact to me because the petition for
intestate was for SIXTY THOUSAND PESOS (P60,000.00), and I.
came to know that it was worth more than SEVEN HUNDRED
THOUSAND (P700,000.00) PESOS.
"Q. Do you remember, Judge, the disposition of the will, the
main disposition of the will?—"A. Yes, because our client were the
widow, Maria Natividad Lim Billian, and his son, Silvino, the only
son in the second marriage, that was very important for me to
know.
"Q. How were the properties distributed according to that will?
—
"A. The properties were distributed into three (3) parts, one
part which we call legitima, corta, were equally distributed to the
ten (10) children, nine (9) in the first marriage, and one (1) in the
second marriage with Maria Natividad Lim Billian. The other
third, the betterment was given to four (4) children, Concepcion,
and Apolonio getting a quite substantial share in the betterment,
around SIXTY THOUSAND (P60,000.00) for Concepcion,
Apolonio the the amount of SEVENTY THOUSAND (70,000.00)
PESOS or little over, and then about ONE HUNDRED
THOUSAND (P100,000.00) PESOS of the betterment in favor of
Silvino, the minor of the second marriage, and to Jose equal to
Concepcion.
"Q. So the betterment, as I. understand from you went to four
(4) children?—"A. Yes.
"Q. Silvino in the second mariage, Concepcion, Apolonio and
Jose in the first marriage?—"A. Yes.
"Q. What about the free disposal?—"A. The free disposal was
disposed in favor of the widow, Maria Natividad Lim Billian and
Silvino, his minor son in equal parts.
"Q. What about, if you remember, if there was something in the
will in connection with that particular of the usufruct of the
widow?—"A. It was somewhat incorporated into the assets of the
estate left by the deceased.
"Q. Do you remember the number of pages of which that will
consisted?—"A. Twenty-three (23) pages.
"Q. Do you remember if the pages were signed by the testator?
—
"A. Yes, sir, it was signed.
"Q. And the foot of the testament or the end of the testament,
was it signed by the testator?—"A. Yes, sir, and the attestation
clause was the last page signed by the three instrumental
witnesses,
536

Suntay vs. Suntay
/
Alberto Barreto, one Chinaman Go Toh, and Manuel Lopez, my
former Justice of the Peace of Hagonoy.
"Q. Do you remember if these witnesses signed on the different
pages of the will?—"A. Yes, sir, they signed with their name
signatures."
"Q. Showing you this document consisting of twenty-three (23)
pages in Spanish and which document appears already attached
to this same testamentary proceedings and already marked as
EXHIBIT B, will you please tell the Court if and for instance on
page eight (8) of this document, pagina octavo, it says, there are
handwritings in pencil, some of which read as follows: 'Los
cincooctavos (5|8) partes corresponds a mi hijo Emiliano', can you
recognize whose handwriting is that?—"A. From my best estimate
it is the handwriting of Don Alberto Barretto.
"Q. About the end of the same page eight (8) pagina octavo, of
the same document Exhibit B, there is also the handwriting in
pencil which reads: 'La otra sexta parte (6.a) corresponde a
Bonifacio Lopez', can you recognize that handwriting?—"A. Yes,
sir, this is the handwriting of Don Alberto Barretto, and I. wish to
call the attention of the Court to compare letter "B" which is in
capital letter with the signature of Don Alberto Barretto in the
envelope, 'Alberto Barretto' and stroke identifies one hand as
having written those words.
"Q. Will you please go over cursorily this document, Exhibit B.
composed of twenty-three (23) pages and please tell the Court if
this document had anything to do with the will which according to
you was contained in the envelope, Exhibit A?—"A. This is exactly
the contents of the original will which I. received and kept in my
office inside the safe for three (3) days, and I. precisely took
special care in the credits left by the deceased, and I. remember
among them, were the De Leon family, and Sandiko, well known
to me, and then the disposition of the estate, divided into three (3)
equal parts, and I. noticed that they are the contents of the will
read."
His Honor, Judge Pecson, was positive in his first decision

that "the testimony of Judge Anastacio Teodoro is
corroborated by Go Toh, one of the attesting witnesses, in
his deposition (Exhibit D-1)." Yet in setting aside his first
decision, he remarked that Go Toh's testimony did not
prove clearly and distinctly the provision of the lost will,
because: "He did not, and he could not have done so even if
he tried because the original will was not read to him nor
by him before or at the signing of the same. It was written
in Spanish and he did not and does not
537
VOL. 95, JULY 31, 1954 537

Suntay vs. Suntay
understand the Spanish language. Neither was there any

occasion for him to have the contents of the said will, after
/
its execution and sealing inside the envelope (Exhibit A),
read to him, because it was opened only when Judge
Teodoro had examined it and then subsequently snatched
from Go Toh."
The later position thus taken by Judge Pecson is
palpably inconsistent with the following unequivocal
statements of Go Toh contained in his desposition taken in
Amoy, China, on April 17, 1938, and in oppositor's Exhibit
"6":
"26. State what you know of the contents of that will. ". . .
.Regarding (1) expenditures (2) Philippine citizenship; (3)
Distribution of estates among children (4) Taking care of grave
lot; (5) guardianship of Silvino Suntay and (6) after paying his
debts he will have approximately 720,000 pesos left. This amount
will be divided into three equal parts of 240,000 pesos each. The
first part is to be divided equally among the ten children born by
the first and second wives and the second part among the three
sons Silvino Suntay, 75,000 approximately; Apolonio Suntay,
50,000 pesos approximately; Jose Suntay and Concepcion Suntay,
36,000 each approximately. The third part is to be divided
between Maria Lim Billian and Silvino Suntay; each will get
approximately 110,000 pesos. Silvino Suntay will get a total of
210,000 pesos approximately, Maria Natividad Lim Billian a total
of 290,000 approximately, and Apolonio Suntay a total of 80,000
approximately, Concepcion Suntay and Jose Suntay will get
60,000 pesos each approximately. The rest of the children will get
approximately 29,000 each. The way of distribution of the
property of Jose B. Suntay, movable and immovable, and the
outstanding debts to be collected was arranged by Jose B.
Suntay."
* * * * * * *
"78. On the occasion of the execution of the testament of Jose

B. Suntay, state whether or not you say Exhibit B—. . . Yes,
"79. In the affirmative case, state if you know who had the
possesion of Exhibit B. and the testament the first time you saw
them on that occasion.—. . . Yes, I. know who had possession of
them.
"80. Can you say whether or not Jose B. Suntay happened to
get those documents later on, on that same occasion?—. . . He got
them after the execution.
538

Suntay vs. Suntay
"81. Please name the person who gave those documents to Mr.
Suntay.—. . . Alberto Barretto gave the documents to Jose B.
Suntay,
"82. Did the person who gave those documents to Suntay say
anything to him (Suntay) at the time of giving them?—. . . Yes.
/
"83. If so what was it that he said, if he said any?—. . . He said,
'You had better see if you want any correction.'
"84. What did Mr. Suntay do after those documents were given
to him?—. . . Jose B. Suntay looked at them and then gave one
copy to Manuel Lopez for checkin
"85. State whether or not Mr. have one of those documents to
another man.—. . . Yes
"86. In the affirmative case, can you say which of the two
documents was given and who the man was?—. . . Yes he gave
Exhibit B. to Manuel Lopez.
"87. State whether or not Mr. Suntay said something to the
man to whom he gave one of those documents.—. . . Yes.
"88. In the affirmative case can you repeat more or less what
Mr. Suntay said to that man?—. . . He told him to read it for
checking.
"89. State if you know what did the man do with one of those
documents given to him.—. . . He took it and read it for checking.
"90. What did in turn Mr. Suntay do with the other one left
with him?—. . . Jose B. Suntay looked at the original and checked
them.
"91. What was done with those documents later on if there was
anything done with them?—. . . After checking, Jose B. Suntay
put Exhibit B. in his pocket and had the original signed and
executed.
"92. What was done with the testament of Jose B. Suntay after
it was signed by the testator and its witnesses?—. . . It was taken
away by Jose B. Suntay." (Exhibit D, D-1.)
"Q. Did you know the contents of this envelope?—"A. I. knew
that it was a will.
"Q. But did you know the provisions of the will?—"A. It is about
the distribution of the property to the heirs.
"Q. Did you know how the property was distributed according to
the will?—"A. I. know that more than P500,000 was for the widow
and her son, more than ex 100,000 for the heirs that are in the
family." (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will
and that the will was written in Spanish. Was it written in
typewriting or to' handwriting of somebody?—"A. That will was
written in typewriting.
"Q. Did you read the contents of that will, or do you know the
contents of that will?—A. No; sir, because I. do not know Spanish.
539
VOL. 95, JULY 31, 1954 539

Suntay vs. Suntay
"Q. How do you know that it was the will of Jose B. Suntay?—"A.
Because was one of the signers and I. saw it." (Exhibit "6", p. 19.)
"22. Do you understand the language in which that will was
written?—... I. know a little Spanish."
"23. Do you talk or write that language? I. can write and talk a
little Spanish." (Exhibits D, D-1.)
/
As to Ana Suntay's corroborating testimony, Judge Pecson
aptly made the following findings: "Ana Suntay, one of the
heirs and who would be affected adversely by the
legalization of the will in question, also testified on rebuttal
that she saw the original will in the possession of Manuel
Suntay immediately after the snatching. She read it and
she particularly remembers the manner in which the
properties were to be distributed. Exhibit B. was shown to
her on the witness stand and she declared that the
provision regarding the distribution of the properties in
said Exhibit B. is the same as that contained in the original
will. Said testimony of Ana Suntay, therefore, belies the
testimony of Atty. Alberto Barretto." And yet in the
resolution on the motion for new trial, the trial Judge had
to state that "Ana Suntay on rebuttal did not, likewise,
prove clearly and distinctly the provisions of the said lost
will, because she has not had enough schooling and she
does not possess adequate knowledge of the Spanish
language as shown by the fact that she had to testify in
Tagalog on the witness stand." The potent error committed
by Judge Pecson in reversing his views as regards Ana's
testimony, is revealed readily in the following portions of
the transcript:
"P. Cuantas páginas tenía aquel documento a que usted se

refiere?—"R. Probablemente sería más de veinte (20) páginas.
"P. No serían treinta (30) paginas?—"ABOGADO RECTO: La
testigo ha contestado ya que más de veinte (20).
"JUZGADO: Se estima
"ABOGADO MEJIA:
"P. Usted personalmente leyo el documento?—"R. Yo leyo mi
hermano en presencia mía,
"P. La pregunta es, si usted personalmente ha leido el
documento?—"R. Si, lo he visto.
540

Suntay vs. Suntay
"P. No solamente le pregunto a usted si Vd. ha visto el testamento

sino si usted ha leido personalmente el testamento?—"R. Si la
parte de la adjudicación lo he leido para asegurarme a que
porcion corresponder a cada uno de nosotros.
"P. Puede usted repetir poco mas o menos esa porción a que se
hacia la distribución del alegado testamento?-"R. Como ya he
declarado, que las propiedades de mi difunto padre se habian
dividido en tres partes, una tercera parte se nos adjudica a
nosotros diez (10) hijos en primeros nupcias y segunda nupcia, la
segunda tercera parte los adjudica a la viuda y a Silvino, y la otra
tercera parte se lo adjudica a sus hijos como mejora a Silvino,
Apolonio, Concepcion y Jose.
/
"P. Eso, tal como usted personalmente lo leyo en el documento?
—"R. Si Senor,
"P. Quiere usted tener la bondad, señora, de repetir poco mas o
menos las palabras en ese documento que se distribuia las
propiedades del defundo padre usted como usted relata aquí?
"ABOGADO RECTO: Objetamos a la pregunta por falta de base,
porque elle solamente se fijo en la parte como se distribuian las
propiedades pero no ha dicho la testigo que ella lo ha puesto de
memoria, ni Vd. ha preguntado en que lenguaje estaba escrito el
testamento . . .
"JUZGADO: Se estima.
"ABOGADO MEJIA:
"P. Sabe usted en que lenguaje estaba redactado el documento
que usted leyo personalmente?-"R. En Castellano.
"P. Puede usted repetirnos ahora en Castellano algunas frases
o palabras como se hizo la distribucion en aquél supuesto
testamento?—
"ABOGADO RECTO: Objeción, por falta de base, uno puede
entender el español y sin embargo no podra repetir lo que ha
leido, y no se sabe todavia si ha estudiado el español bastante
hasta el punto de poder hablarlo.
"JUZGADO: Se estima.
Abogado Mejia
"P. Usted dijo que estaba puesto en castellano el supuesto
testamento que Vda. leyó, usted poso el castellano?—"R. Yo
entiendo el castellano, pero no puedo hablar bien.
"P. Usted estudio el castellano en algun colegio?—"R. Si, señor,
en Sta. Catalina
"P. Cuantos años?-"R. Nuestros estudios no han sido
continuous porque mi padre nos ingresaba en el colegio y despues
nos sacaba para estar afuera, y no era continuo nuestro estudio.
"P. Pero en total, como cuantos meses o años estaba usted en el
colegio aprendiendo el castellano?-"R. Unos cuatro o cinco años.
"P. Entonces usted puede leer el castellano con facilidad,
senorá?—"R. Si, castellano sencillo puedo entender y lo puedo
leer.
541
VOL. 95, JULY 31, 1954 541

Suntay vs. Suntay
"P. Usted entiende las preguntas que se le dirigian aquí en

castellano sin interpretación un sin el interprete?—"R. Si, Señor.
"P. Puede usted contestar en castellano?—"R. Bueno, pero
como usted debe comprender quisiera asegurarme del significado
antes de contestar, por eso quiero que la pregunta se me traduzca
antes. así puedo contestar debidamente." (t. s. n. pp. 533-534.)
We are really at a loss to understand why, without any

change whatsoever in the evidence, the trial Judge
reversed his first decision, particularly when he announced
therein that "it is now incumbent upon this court to delve
/
into the evidence whether or not Jose B. Suntay, deceased,
left a will (the draft of which is Exhibit B) and another will
which was executed and probated in Amoy, China." His
action is indeed surprising when we take into account the
various circumstancial features presently to be stated, that
clearly confirm the testimony of Judge Anastacio Teodoro,
Go Toh and Ana Suntay, or otherwise constitute visible
indicia of oppositor's desire to frustrate the wishes of his
father, Jose B. Suntay.
In our opinion the most important piece of evidence in
favor of the petitioner's case is the draft of the lost will,
Exhibit "B." Its authenticity cannot be seriously
questioned, because according to the trial Judge himself,
oppositor's own witness, Atty. Alberto Barretto, admitted it
to be "identical in substance and form to the second draft
which he prepared in typewriting." Indeed, all the "A's" and
"B's" in the handwritten insertions on the draft are very
similar to those in Barretto's admittedly genuine signature
on the envelope, Exhibit "A." The finding of Judge Pecson
on the point in his first decision (reiterated expressly in the
resolution on the motion for new trial), should control, not
only because it is in accordance with the evidence but
because the oppositor had failed and did not even attempt
to have the trial Judge reconsider or reverse his factual
conclusions. The draft, Exhibit "B," having been positively
identified by the witnesses for the petitioner to be an exact
copy of the lost will of Jose B. Suntay, is therefore
conclusive. Oppositor's effort to show that said draft was
never signed in
542

Suntay vs. Suntay
final form, and was thought of merely to deceive

petitioner's mother, Lim Billian, and that the will actually
executed and put in the envelope, Exhibit "A", provided
that the testator's estate would be divided equally among
his heirs, as in the case of intestacy, was necessarily futile
because, if this allegation is true, the will would not have
been "snatched" from Go Toh—and the loss certainly
cannot be imputed to the widow Lim Billian or the
petitioner; the snatched will would have been produced to
put an end to petitioner's and his mother's claim for greater
inheritance or participation under the lost will; and the
envelope containing the first will providing for equal
shares, would not have been entrusted to the care and
custody of the widow Lim Billian,
It is very noteworthy that out of the nine children of the
first marriage, only Angel, Jose and Federico Suntay had
opposed the probate of the will in question; the rest,
namely, Ana, Aurora, Concepcion, Lourdes, Manuel and
/
Emiliano Suntay, having expressly manifested in their
answer that they had no opposition thereto, since the
petitioner's alternative petition "seeks only to put into
effect the testamentary disposition and wishes of their late
father." This attitude is significantly an indication of the
justness of petitioner's claim, because it would have been to
their greater advantage if they had sided with oppositor
Federico Suntay in his theory of equal inheritance for all
the children of Jose B. Suntay. Under the lost will or its
draft Exhibit "B", each of the Suntay children would
receive only some P25,000.00, whereas in case of intestacy
or under the alleged will providing for equal shares, each of
them would receive some P100,000.00. And yet the Suntay
children other than Angel, Jose and Federico had chosen to
give their conformity to the alternative petition in this
case.
Another unequivocal confirmation of the lost will is the
will which Jose B. Suntay executed in Amoy, Fookien,
China, on January 4, 1931, and probated in Amoy District
Court, China, containing virtually the same provisions
543
VOL. 95, JULY 31, 1954 543

Suntay vs. Suntay
as those in the draft Exhibit "B". What better evidence is

there of an man's desire or insistence to express his last
wishes than the execution of a will reiterating the same
provisions contained in an earlier will. Assuming that the
Chinese will cannot be probated in the jurisdiction, its
probative value as corroborating evidence cannot be
ignored.
Oppositor himself had admitted having read the will in
question under which the widow Lim Billian was favored;
and this again in a way goes to corroborate the evidence for
the petitioner as to the contents of the will sought to be
probated.
"COURT:
"Q. Have you read the supposed will or the alleged will of your
father?—"A. Yes, sir.
"COURT:
"Q. Can you tell the court the share or participation in the
inheritance of Maria Natividad Lim Billian according to the will?
—
"A. Yes sir, she will inherit, I. think, two-thirds (⅔) of the estate,
in other words she is the most favored in the will, so when they
sold that, they sold everything, they are selling everything even
the conjugal property." (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony

of Atty. Alberto Barretto, forgetful perhaps of the fact that
the trial Judge gave no credence to said witness. It should /
be repeated that Judge Pecson reiterated in the resolution
on the motion for new trial all his findings in the first
decision. If as Atty. Barretto testified, Lim Billian was
entitled under the will actually signed by Jose Suntay only
to P10,000.00, in addition to properties in China valued at
P15,000.00, the fees of P25,000.00 admittedly asked by him
would absorb her entire inheritance; and this would
normally not be done by any law practitioner. Upon the
other hand, there is evidence to the effect that Atty.
Barretto might have become hostile to the petitioner and
his mother Lim Billian in view of the latter's refusal to
agree to the amount of P25,000.00 and her offer to pay only
P100.00 There is also evidence tending to show that as
early as 1942,
544

Suntay vs. Suntay
Atty. Barretto was paid by oppositor Federico Suntay the

sum of P16,000.00 which, although allegedly for services in
the testate proceedings, was paid out of the personal funds
of said oppositors to supply Atty. Barretto's needs. This
circumstances perhaps ex urther explains why the latter
had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the
"snatching" case and the first decision of Judge Pecson in
this case, both in the hope and in the belief (1) that the first
would reveal the manner by which those adversely affected
had planned to prevent the last wishes of the deceased Jose
B. Suntay from being carried ont, and (2) that the second,
by the facts correctly recited therein and by the force and
accuracy of its logic would amply show the weakness and
utter lack of foundation of the resolution on the motion for
reconsideration. We have set forth at length pertinent
portions of the testimony of various witnessess to
demonstrate more plainly the plausibility of the original
decision of Judge Pecson, and the latter's consequent bad
judgment in having forced himself to accomplish a
somersault, a feat which the majority, in my opinion, have
mistakenly commended. We have found this to be one of
the cases of this court in which we have had .occasion to
participate, where there can be absolutely no doubt as to
the result—outright reversal—for which, with due respect
to the majority opinion, we vote without hesitancy.
Montemayor and Jugo, JJ., concur.
Decree affirmed.
RESOLUTION
/
5 November 1954
PADILLA, J.:
This is a motion for reconsideration of the decision

promulgated on 31 July 1954, affirming the decree of the
Court of First Instance of Bulacan which disallowed the
alleged last will and testament executed in November 1929
and the alleged last will and testament executed in Ku-
545
VOL. 95, JULY 31, 1954 545

Suntay vs. Suntay
langsu, Amoy, China, on 4 January 1931, by Jose B.

Suntay, without pronouncement as to costs, on grounds
that will presently be taken up and discussed.
Appellant points to an alleged error in the decision
where it states that—
* * * This petition was denied because of the loss of said will after
the filing of the petition and before the hearing thereof, * * *
because according to him the "will was lost before not after
(the) filing of the petition." This slight error, if it is an error
at all, does not, and cannot, after the conclusions and
pronouncements made in the judgment rendered in the
case. In his alternative petition the appellant alleges:
4. That on October 15, 1934, Maria Natividad Lim Billian, the

mother of herein petitioner filed a petition in this court for the
allowance and probate of a last will and testament executed, and
signed in the Philippines in the year 1929 by said deceased José
B. Suntay. (P. 3, amended record on appeal.)
If such last will and testament was already lost or

destroyed at the time of the filing of the petition by Maria
Natividad Lim Billian (15 October 1934), the appellant
would have so stated and alleged. If Anastacio Teodoro, a
witness for the appellant, is to be believed when he
testified—
* * * that one day in November 1934 (p. 273, t. s. n., hearing of 19

January 1948), * * * Go Toh arrived at his law office in the De los
Reyes Building and left an envelope wrapped in red handkerchief
[Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); * * *
and—
If the will was snatched after the delivery thereof by Go Toh to

Anastacio Teodoro and returned by the latter to the former
because they could not agree on the amount of fees, * * *
then on 15 October 1934, the date of the filing of the

petition, the will was not yet lost. And if the facts alleged in /
paragraph 5 of the appellant's alternative petition which
states:
That this Honorable Court, after hearing, denied the aforesaid

petition for probate filed by Maria Natividad Lim Billian in view
546

Suntay vs. Suntay
of the loss and/or destruction of said will subsequent to the filing

of said petition and prior to the hearing thereof, and the alleged
insufficiency of the evidence adduced to established the loss
and/or destruction of the said will, (Italics supplied. P. 3, amended
record on appeal.)
may be relied upon, then the alleged error pointed out by

the appellant, if it is an error, is due to the allegation in
said paragraph of his alternative petition. Did the
appellant allege the facts in said paragraph with reckless
abandon? Or, did the appellant make the allegation as
erroneously as that which he made in paragraph 10 of the
alternative petition that "his will which was lost and
ordered probated by our Supreme Court in G. R. No. 44276,
above referred to?" (P. 7, amended record on appeal.) This
Court did not order the probate of the will in said case
because if it did, there would have been no further and
subsequent proceedings in the case after the decision of
this Court referred to had been rendered and had become
final. Be that as it may, whether the loss of the will was
before or subsequent to the filing of the petition, as already
stated, the fact would not affect in the slightest degree the
conclusions and pronouncements made by this Court.
The appellant advances the postulate that the decision
of this Court in the case of Lim Billian vs. Suntay, G. R.
No. 44276, 63 Phil., 793, constitutes 'res judicata, on these
points: (a) that only one will was prepared by attorney
Baretto, and (b) that the issue to be resolved by the trial
court was whether the draft (Exhibit B) is a true copy or
draft of the snatched will, and contends that these points
already adjudged were overlooked in the majority opinion.
The decision of this Court in the case referred to does not
constitute res judicata on the points adverted to by the
appellant. The only point decided in that case is that "the
evidence is sufficient to establish the loss of the document
contained in the envelope." In the opinion of this Court,
this circumstance justified "the presentation of secondary
evidence of its contents and of whether it was executed
with all the essential and necessary
547
/
VOL. 95, JULY 81, 1954 547
Suntay vs. Suntay
legal formalities." That is all that was decided. This Court

ex urther said:
The trial of this case was limited to the proof of loss of the will,
and from what has taken place we deduce that it was not
petitioner's intention to raise, upon the evidence adduced by her,
the other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B) is a true copy of the will and
whether the latter was executed with all the formalities required
by law for its probate. The testimony of Alberto Barretto bears
importantly in this connection. (P. 796, supra.)
Appellant's contention that the question before the probate

court was whether the draft (Exhibit B) is a true copy or
draft of the snatched will is a mistaken interpretation And
view of the decision of this Court in the case referred to, for
if this Court did make that pronouncement, which, of
course, it did not, such pronouncement would be contrary
to law and would have been a grievous and irreparable
mistake, because what the Court passed upon and decided
in that case, as already stated, is that there was sufficient
evidence to prove the loss of the will and that the next step
was to prove by secondary evidence its due execution in
accordance with the formalities of the law and its contents,
clearly and distinctly,
1
by the testimony of at least two
credible witnesses.
The appellant invokes Rule 133 to argue that Rule 77
should not have been applied to the case but the provisions
of section 623 of the Code of Civil Procedure (Act No. 190),
for the reason that this case had been commenced before
the Rules of Court took effect But Rule 133 cited by the
appellant provides:
These rules shall take effect on July 1, 1940. They shall govern all
cases brought after they take effect, and also all further
proceedings in cases then pending, except to the extent that in the
opinion of the court their application would not be feasible or
would work injustice, in which event the former procedure shall
apply. (Italics supplied.)
So, Rule 77 applies to this case because it was a further

proceedings in a case then pending. But even if section
_______________
1 Section 6, Rule 77.
548

Suntay vs. Suntay
/
623 of the Code of Civil Procedure were to be applied, still
the evidence to prove the contents and due execution of the
will and the fact of its unauthorized destruction,
cancellation, or obliteration must be established "by full
evidence to the satisfaction of the Court." This requirement
may even be more strict and exacting than the twowitness
rule provided for in section 6, Rule 77. The underlying
reason for the exacting provisions found in section 623 of
Act No. 190 and section 6, Rule 77, the product of
experience and wisdom, is to prevent imposters from
foisting, or at least to make for them difficult to foist, upon
probate courts alleged last wills or testaments that were
never executed.
In commenting unfavorably upon the decree disallowing
the lost will, both the appellant and the dissenting opinion
suffer from an infirmity born of a mistaken premise that all
the conclusions and pronouncements made by the probate
court in the first decree which allowed the probate of the
lost will of the late Jose B. Suntay must be accepted by this
Court. This is an error. It must be borne in mind that this
is not a petition for a writ of certiorari to review a
judgment of the Court of Appeals on questions of law where
the findings of fact by said Court are binding upon this
Court. This is an appeal from the probate court, because
the amount involved in the controversy exceeds P50,000,
and this Court in the exercise of its appellate jurisdiction
must review the evidence and the findings of fact and legal
pronouncements made by the probate court. If such
conclusions and pronouncements are unjustified and
erroneous this Court is in duty bound to correct them. Not
long after entering the first decree the probate court was
convinced that it had committed a mistake, so it set aside
the decree and entered another. This Court affirmed the
last decree not precisely upon the facts found by the
probate court but upon facts found by it after a careful
review and scrutiny of the evidence, parole and
documentary. After such review this Court has found that
the provisions of the will had not been established clearly
and distinctly by at least two
549
VOL. 95, JULY 31, 1954 549

Suntay vs. Suntay
credible witnesses and that conclusion is unassailable

because it is solidly based on the established facts and in
accordance with law.
The appellant and the dissent try to make much out of a
pleading filed by five (5) children and the widow of
Apolonio Suntay, another child of the deceased by the first
marriage, wherein they state that—
/
* * * in answer to the alternative petition filed in these
proceedings by Silvino Suntay, through counsel, dated June 18,
1947, to this Honorable Court respectfully state that, since said
alternative petition seeks only to put into effect the testamentary
disposition and wishes of their late father, they have no
opposition thereto. (Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of

the lost will? Of course not. If the lost will sought to be
probated in the alternative petition was really the will of
their late father, they, as good children, naturally had,
could have, no objection to its probate. That is all that their
answer implies and means. But such lack of objection to
the probate of the lost will does not relieve the proponent
thereof or the party interested in its probate from
establishing its due execution and proving clearly and
distinctly the provisions thereof by at least two credible
witnesses. It does not mean that they accept the draft
Exhibit B) as an exact and true copy of the lost will and
consent to its probate. Far from it. In the pleading copied in
the dissent, which the appellant has owned and used as
argument in the motion for reconsideration, there is
nothing that may bolster up his contention. Even if all the
children were agreeable to the probate of said lost will, still
the due execution of the lost will must be established and
the provisions thereof proved clearly and distinctly by at
least two credible witnesses, as provided for in section 6,
Rule 77. The appellant's effort failed to prove what is
required by the rule. Even if the children of the deceased by
the first marriage, out of generosity, were willing to donate
their shares in the estate of their deceased father or parts
thereof to their step mother and her only child, the herein
appellant, still the donation, if
550

Suntay vs. Suntay
validly made, would not dispense with the proceedings for

the probate of the will in accordance with section 6, Rule
77, because the former may convey by way of donation
their shares in the state of their deceased father or parts
thereof to the latter only after the decree disallowing the
will shall have been rendered and shall have become final.
If the lost will is allowed to probate there would be no room
for such donation except of their respective shares in the
probated will.
The part of the deposition of Go Toh quoted in the
motion for reconsideration which appellant underscores
does not refer to Go Toh but to Manuel Lopez. Even if Go
Toh heard Manuel Lopez read the draft (Exhibit B) for the
purpose of checking it up with the original held and read by
/
Jose B. Suntay, Go Toh should not have understood the
provisions of the will because he knew very little of the
Spanish language in which the will was written (answer to
22nd and 23rd interrogatories and to X-2 cross-
interrogatory). In fact, he testifies in his deposition that all
he knows about the contents of the lost will was revealed to
him by Jose B. Suntay at the time it was executed (answers
to 25th interrogatory and to X-4 and X-8 cross-
interrogatories); that Jose B. Suntay told him that the
contents thereof are the same as those of the draft [Exhibit
B] (answers to 33rd interrogatory and to X-8 cross-
interrogatory); that Mrs. Suntay had the draft of the will
(Exhibit B) translated into Chinese and he read the
translation (answer to the 67th interrogatory) ; that he did
not read the will and did not compare it (check it up) with
the draft [Exhibit B] (answers to X-6 and X-20 cross-
interrogatories). We repeat that—
* * * all of Go Toh's testimony by deposition on the provisions of

the alleged lost will Is hearsay, because he came to know or he
learned of them from information given him by Jose B. Suntay
and from reading the translation of the draft (Exhibit B) into
Chinese.
This finding cannot be contested and assailed.

The appellant does not understand how the Court came
to the conclusion that Ana Suntay, a witness for the
551
VOL. 95, JULY 31, 1954 551

Suntay vs. Suntay
appellant could not have read the part of the will on

adjudication. According to her testimony "she did not read
the whole will but only the adjudication," which, this Court
found, "is inconsistent with her testimony in chief (to the
effect) that 'after Apolonio read that portion, then he
turned over the document to Manuel, and he went away.'"
(P. 528, t. s. n., hearing of 24 February 1948.) And
appellant asks the question: "Who went away? Was it
Manuel or Apolonio?" In answer to his own question the
appellant says: "The more obvious inference is that it was
Apolonio and not Manuel who went away." This inference
made by the appellant not only is not obvious but it is also
illogical, if it be borne in mind that Manuel came to the
house of Apolonio and it happened that Ana was there,
according to her testimony. So the sentence "he went away"
in Ana's testimony must logically and reasonably refer to
Manuel, who was a caller or visitor in the house of his
brother Apolonio and not to the latter who was in his
house. If it was Apolonio who "went away," counsel for the
appellant could have brought that out by a single question.
As the evidence stands could it be said that the one who /
went away was Apolonio and not Manuel? The obvious
answer is that it was Manuel. That inference is the result
of a straight process of reasoning and clear thinking.
There is a veiled insinuation in the dissent that Alberto
Barretto testified as he did because he had been paid by
Federico C. Suntay the sum of P16,000. Federico C. Suntay
testifies on the point thus—
Q. You mentioned in your direct testimony that you paid certain

amount to Atty. Alberto Baretto for services rendered, how much
did you pay?—A. Around SIXTEEN THOUSAND (P16,000.00).
Q. When did you make the payment?—A. During the Japanese
time.
Q. Did you state that fact in any accounts you presented to the
Court?—A. I. do not quite remember that.
* * * (P. 180, t. s. n., hearing of 24 October 1947.)
552

Suntay vs. Suntay
Q. When you made that payment, was (it) your intention to

charge it to the state or to collect it later from the estate?—A. Yes,
sir.
Q. More or less when was such payment made, during the
Japanese time, what particular month and year, do you
remember?—A. I. think in 1942.
Q. And you said you paid him because of services he rendered?
—
A. Upon the order to the Court.
Q. And those services were precisely because he made a will
and he made a will which was lost, the will of Jose B. Suntay? * *
*
(P. 181, t. s. n., supra.)—A. I. think I. remember correctly
according to ex-Representative Vera who is the administrator
whom I. followed at that time, that was paid according to the
services rendered by Don Alberto Barretto with regard to our case
in the testamentaria but he also rendered services to my father.
Q. At least your Counsel said that there was an order of the
Court ordering you to pay that, do you have that copy of the
order?—A. Yes, sir, I. have, but I. think that was burned. (P. 184,
t. s. n., supra.)
So the sum of P16,000 was paid upon recommendation of

the former administrator and order of the probate court for
services rendered by Alberto Baretto not only in the
probate proceedings but also for services rendered to his
father. But if this sum of P16,000 paid to Alberto Barretto
upon recommendation of the previous administrator and
order of the probate court for professional services rendered
in the probate proceedings and to the deceased in his
lifetime be taken against his truthf ulness and veracity as
to affect adversely his testimony, what about the /
professional services of Anastacio Teodoro who appeared in
this case as one of the attorneys for the petitioner-
appellant? (P. 2, t. s. n., hearing of 13 October 1947.) Would
that not likewise or by the same token affect his
credibility? Is not the latter's interest more compelling than
the former's?
For the ex oregoing reasons, the motion ex or
reconsideration is denied.
Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.
553
VOL. 95, JULY 31, 1954 553

Heacock Co. vs. National Labor Union, et al.
Parás, C. J., dissenting:
For the same reasons and considerations set forth in detail

in my dissent promulgated on July 31, 1954, I. vote to
grant the motion for reconsideration.
Montemayor and Jugo, JJ., concur.
Motion for reconsideration denied.
——o0o——
© Copyright 2020 Central Book Supply, Inc. All rights reserved.

SPECPRO-Suntay Vs Suntay

Uploaded by

Copyright:

Available Formats

SPECPRO-Suntay Vs Suntay

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

SPECPRO-Suntay Vs Suntay

Uploaded by

Copyright:

Available Formats

[Nos. L-3087 and L-3088.

In re: Testate Estate of the deceased JOSÉ B. SUNTAY.

1. WlLLS; PROBATE OF WlLLS; ASSIGNMENT OF

2. ID.; ID.; PROOF OF LOST WILL; PROVISIONS OF

VOL. 95, JULY 31, 1954 501

Suntay vs. Suntay

3. ID.; PROBATE OF WILL is A PROCEEDING IN REM;

4. ID. ; ID. ; PROCEEDINGS LIKENED TO A DEPOSITION

5. ID.; WILLS PROVED IN A FOREIGN COUNTRY;

6. WILL, PROBATE OF; LACK OF OBJECTION TO

7. ID. ; APPEALS ; JURISDICTION OF SUPREME COURT

502 PHILIPPINE REPORTS ANNOTATED

APPEAL from a decree of the Court of First Instance of

This is an appeal from a decree of the Court of First

VOL. 95, JULY 31, 1954 503

504 PHILIPPINE REPORTS ANNOTATED

filing of this petition on 18 June 1947, or before the

No will shall be proved as a lost or destroyed will unless the

The witnesses who testified to the provisions of the lost will

VOL. 95, JULY 31, 1954 505

office of Alberto Barretto in November 1929 when the will

506 PHILIPPINE REPORTS ANNOTATED

Go Toh arrived at his law office in the De los Reyes

VOL. 95, JULY 31, 1954 507

draft of the will, because it must have been corrected before

508 PHILIPPINE REPORTS ANNOTATED

his death, still the testimony of Anastacio Teodoro alone

VOL. 95, JULY 31, 1954 509

placed inside the envelope (Exhibit A) together with an

Wills proved and allowed in a foreign country, according to the

510 PHILIPPINE REPORTS ANNOTATED

When a copy of such will and the allowance thereof, duly

If it appears at the hearing that the will should be allowed in the

The fact that the municipal district court of Amoy, China,

VOL. 95, JULY 31, 1954 511

matters, it may be presumed that the proceedings in the

The above minutes were satisf actorily confirmed by the

512 PHILIPPINE REPORTS ANNOTATED

damental concepts and principles followed in the probate

Pablo, Bengzon, A. Reyes, Labrador and Concepcion,

PARÁS, C. J., dissenting:

As a preliminary statement we may well refer to the case of

VOL. 95, JULY 31, 1954 513

will in the envelope was executed in the Philippines, with Messrs.

514 PHILIPPINE REPORTS ANNOTATED

Barretto, Go Toh and Manuel Lopez. It is thus undeniable that

On June 18, 1947, Silvino Suntay, the herein petitioner,

VOL. 95, JULY 31, 1954 515

"This action is for the legalization of the alleged will of Jose B.

(As quoted above)

"The above quoted decision of the Supreme Court was

516 PHILIPPINE REPORTS ANNOTATED

the Court of First Instance of Bulacan moving for the

VOL. 95, JULY 31, 1954 517

and the three subscribing witnesses also signed, after which it

518 PHILIPPINE REPORTS ANNOTATED

"The said petition is opposed by Federico C. Suntay on the main

VOL. 95, JULY 31, 1954 519