Case Digest: Garcia vs. Vasquez, G.R. No. L-26615, April 30, 1970

  Art. 808  | Succession, Blindness

Provision:

Art. 808.  If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged

Ponente:
Reyes, J.B.L. J.,

Petitioner: Rev. Father Lucio V. Garcia, Antonio de Jesus de Praga, Maria Natividad de Jesus and Dr. Jaime Rosario

Respondents: Hon. Conrado M. Vasquez and Consuelo Vda. de Precilla

Recit Version:

Doña Gliceria Avelino del Rosario executed two wills during her lifetime, one in Spanish in 1956, and another in Tagalog in 1960. After her, Consuelo S. Gonzales Vda. de Precilla, her niece, petitioned for probate of the 1960 will. Witnesses testified that Gliceria del Rosario, although needing assistance to walk, appeared of sound mind when she signed the will, while objectors claimed her poor eyesight made it impossible for her to read the document.

The ophthalmologist testified in court that Gliceria del Rosario had poor eyesight due to cataracts and possible glaucoma. Despite an operation and the use of corrective lenses, her vision remained mainly for viewing distant objects and not for reading print. The 1960 will was also closely typed without margins and contained typographical errors. 

The law requires a will to be read twice to a blind testator, ensuring their understanding of the provisions; however, there was no evidence of compliance with this requirement. As a result, the 1960 will was considered invalid.

Facts:

Doña Gliceria Avelino del Rosario executed two wills during her lifetime: 

1. On June 9, 1956 in Spanish, witnessed by Antonio Cabrera, Jesus Y. Ayala, and Valentin Marquez, and acknowledged before notary public Jose Ayala; and
2. On December 29, 1960 in Tagalog, witnessed by Vicente Rosales, Francisco Decena, and Francisco Lopez, and acknowledged before notary public Remigio M. Tividad.

On September 2, 1965, Gliceria del Rosario died unmarried in Manila, leaving no descendants, ascendants, brother or sister.

Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned for probate of Gliceria del Rosario's second last will and testament.

The instrumental witnesses for the 1960 will, testified that they were individually summoned by Alfonso Precilla, the late husband of the petitioner, to witness the execution of Gliceria del Rosario's last will.

The witnesses stated that on the day of the execution, Gliceria del Rosario appeared to be of sound mind, although she needed assistance when walking, and that the will, which was already prepared, was first read "silently" by the testatrix herself before she signed it.

According to the witnesses, Alfonso Precilla actively participated in the signing of the will as it appeared to have been prepared by one who is not conversant with the spelling of Tagalog words.

Several alleged heirs opposed the petition, including Rev. Fr. Lucio V. Garcia, Jaime Rosario and children, Antonio Jesus de Praga and Marta Natividad de Jesus, Remedios, Encarnacion, and Eduardo Narciso, Natividad del Rosario-Sarmiento, Maria Narciso, Pascuala Narciso de Manahan, Severina, Rosa, and Josefa Narciso, and Vicente and Delfin Mauricio.

They maintain that on December 29, 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses.

CFI-Manila: Admitted the will to probate.

Issue:

WoN the last  will and testament of Gliceria de Rosario executed on December 29, 1960 is valid. NO

Held:

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when Doña Gliceria del Rosario saw him for consultation on March 11, 1960 he found her left eye to have cataract (opaque lens),  and that it was "above normal in pressure", denoting a possible glaucoma, a disease that leads to blindness.

As to the conditions of her right eye, Dr. Tamesis declared:

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from which you could inform the court as to the condition of the vision of the patient as to the right eye?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which showed that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye with her correction 20 over 300 (20/300).

"Q In layman’s language, Doctor, what is the significance of that notation that the right had a degree of 20 over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for near."

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only "counting fingers," at five feet. 

The cross-examination of the doctor further elicited the following responses:

"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?

"A After her discharge from the hospital, she was coming to my clinic for further examination and then sometime later glasses were prescribed.

x       x       x

"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the eye which I operated — she could see only forms but not read. That is on the left eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye." 

(pages 34. 85. t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under medical supervision up to 1963 with apparently good vision", the doctor had this to say:

"Q When you said that she had apparently good vision you mean that she was able to read?

"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report was made on pure recollections and I recall she was using her glasses although I recall also that we have to give her medicines to improve her vision, some medicines to improve her identification some more.

x       x       x

"Q What about the vision in the right eve, was that corrected by the glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.

"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects."

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable of reading, and could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument "silently" which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, to much so that the words had to be written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &", apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doña Gliceria.

Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge’’, remained uncorrected, thereby indicating that execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of one’s worldly possessions should be embodied in an informal and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so. The record is thus convincing that the supposed testatrix could not have physically read or understood the alleged testament, Exhibit "D", and that its admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks shortly prior to the alleged execution of the testament, as appears from the photographs, in no way proves; that she was able to read a closely typed page, since the acts shown do not require vision at close range. It must be remembered that with the natural lenses removed, her eyes had lost the power of adjustment to near vision, the substituted glass lenses being rigid and uncontrollable by her. 

Neither is the signing of checks by her indicative of ability to see at normal reading distances. Writing or signing of one’s name, when sufficiently practiced, becomes automatic, so that one need only to have a rough indication of the place where the signature is to be affixed in order to be able to write it. Indeed, a close examination of the checks, amplified in the photograph, reinforces the contention of oppositors that the alleged testatrix could not see at normal reading distance: the signatures in the checks are written far above the printed base, lines, and the names of the payees as well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged."

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testator’s) other senses. 

In connection with the will here in question, there is nothing in the records to show that the above requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the deceased Doña Gliceria.

The oppositors’ petition was based allegedly on the existence in the special administratrix of an interest adverse to that of the estate. It was their contention that through fraud her husband had caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 reasoned out that since the properties were already sold no longer form part of the estate. The conflict of interest would not be between the estate and third parties, but among the different claimants of said properties, in which case, according to the court, the participation of the special administratrix in the action for annulment that may be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity of the conveyance or sale of the properties. In short, if proper, the action for annulment would have to be undertaken on behalf of the estate by the special administratrix, affecting as it does the property or rights of the deceased. For the rule is that only where there is no special proceeding for the settlement of the estate of the deceased may the legal heirs commence an action arising out of a right belonging to their ancestor.

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an ordinary and separate action would have to be instituted, the matter not falling within the competence of the probate court. 22 Considering the facts then before it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario on 10 January 1961, when she was already practically blind; and that the consideration of P30,000.00 seems to be unconscionably small for properties with a total assessed value of P334,050.00, there was likelihood that a case for annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to the estate. 22 Not only this, but the conduct of the special administratrix in securing new copies of the owner’s duplicates of TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority, and on the pretext that she needed them in the preparation of the inventory of the estate, when she must have already known by then that the properties covered therein were already "conveyed" to her husband by the deceased, being the latter’s successor, and having the contract bind the land through issuance of new titles in her husband’s name cannot but expose her to the charge of unfitness or unsuitableness to discharge the trust, justifying her removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the Hongkong and Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken action on the complaint against the alleged withdrawals from the bank deposits of the deceased, because as of that time the court had not yet been apprised that such deposits exist. Furthermore, as explained by the special administratrix in her pleading of 30 October 1965, the withdrawals referred to by the oppositors could be those covered by checks issued in the name of Gliceria del Rosario during her lifetime but cleared only after her death. That explanation, which not only appears plausible but has not been rebutted by the petitioners-oppositors, negates any charge of grave abuse in connection with the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of the register of deeds of the province in which the property is situated, if the action affects "the title or the right of possession of (such) real property." 23 In the case at bar, the pending action which oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that case is concerned merely with the correctness of the denial by the probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in controversy there is simply the fitness or unfitness of said special administratrix to continue holding the trust; it does not involve or affect at all the title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being meritorious, the appealed order is set aside and the court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased Doña Gliceria Avelino del Rosario as special administrator for the purpose of instituting action on behalf of her estate to recover the properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.