EN BANC
G.R. No. L-27200 August 18, 1972
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased, CONSUELO S. GONZALES VDA. DE PRECILLA, petitioner-administratrix,
vs.
SEVERINA NARCISO, ROSA NARCISO, JOSEFA NARCISO, VICENTE MAURICIO, DELFEN MAURICIO, REMEDIOS NARCISO, ENCARNACION NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS-DR. JAIME ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO, and PASCUALA NARCISO-MANAHAN, oppositors-appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S. Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila.
Leandro Sevilla & Ramon C. Aquino for petitioner-administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, et al. .
Pedro Garcia for oppositors-appellant Dr. Jaime Rosario et al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.
Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, et al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del Rosario-Sarmiento, et al.
Separate Opinions
REYES, J.B.L., J., dissenting:
I am constrained to express my disconformity with the resolution remanding this case for reception of further evidence on the question of whether the late Doña Gliceria del Rosario was able to read the will, Exhibit "D", before she signed the same on 29 December 1960, for the reason that no further evidence is needed beyond that extant on record.
The resolution of remand is predicated on the alleged ambiguity or deficiency of the testimony of the ophthalmologist Dr. Jesus Tamesis on the visual acuity (sharpness) of the deceased's right eye, because he made reference to his notes of her vision of her distant objects "leaving unsaid what such notations of the visual acuity for distance of his patient indicate regarding her capacity to read ordinary print".
I submit that the resolution, in stressing the importance of visual acuity for distant vision and its relation to acuity of vision for near objects in the same person, completely misses the basic fact that sharpness of vision depends upon the eyes' ability to focus at the required distance. The resolution overlooks that both the right and the left eyes of Dona Gliceria had been previously operated for cataract. This is clearly proved not only by the clinical record of Dr. Tamesis but also by his transcribed testimony.
As to the right eye, the clinical record (Exhibit "3-A", Narciso) carries the following notation:
COMPLAINTS & HISTORY: Rt eye operated by Ocampo 1954. (Emphasis supplied)
And in his testimony in Court, Dr. Tamesis clarified:
A. From the meager data set down by my assistant however, after examining her, the right eye would be seen to be operated for cataract, that her optic nerve and retina showed regeneration, that she was wearing lens with the grade that was noted by my assistant. (t.s.n., page 19, Session of 23 March 1966) (Emphasis supplied)
As to Da. Gliceria's left eye, the undisputed records of Our Lady of Lourdes Hospital are to the effect that Dr. Tamesis also operated on it for cataract (Exhibit "4-B", Narciso) on 8 August 1960 (Decision, 32 SCPA 499).
The cataract operation consists in the removal of the eye lenses that have become opaque and useless for seeing (a matter so well known as to be of judicial notice). The removed lenses formerly located inside the eyeball then have to be replaced by external eyeglasses. Under these conditions the ability to read does not merely, or even largely, depend upon visual acquity: the question becomes whether with the glasses furnished her for normal or distant vision Da. Gliceria could adjust or accomodate for vision of near objects or for reading. In normal eyes operation of the accommodation mechanism is described thus:
A C C O M O D A T I O N
It will be remembered that the lens is suspended by the radially directed fibers of the suspensory ligament which join it to the rink of ciliary muscle. These fibers are under tension, so that the lens is pulled radially outwards all round its circumference. The effect is to flatten the curved surfaces, so making the lens thinner than when unconstrained. Thus it must be emphasized that when no accommodative effort is made and the eye is set for distant vision, the ciliary muscle is relaxed the suspensory ligament is tense, and the lens is made to have less curved surfaces than when removed from the eye and left free to assume its natural shape.
When a near object is to be viewed. the ring of ciliary muscle contracts, so shrinking into a ring of smaller diameter. The tension is the suspensory fibers is thereby reduced; the lens is therefore pulled less strongly outwards and accordingly the equator shrinks to a circle of smaller diameter so that the lens itself becomes thicker, as the surfaces assume a grater degree of curvature. The lens is now stronger, and can bend rays more, as is required to bring the more divergent rays a point. (Harry Asher, "Experiments in Seeing", Physiology Department, Birmingham University, December, 1960)
From this explanation, it can be readily seen that a normal eye varies the thickness of its lens in order to achieve near vision; but it is precisely this process that was not possible for Da. Gliceria to perform at the time her alleged will was executed. Why? Because, as pointed out in the original decision, (page 10), both her natural eye lenses been removed (through the cataract operations which she had undergone) and had been replaced by external lens of glass that are rigid and not deformable at will, as they were no longer subject to the action of the ciliary muscle and suspensory fibers of her eyeballs.
The essential fact is that, having lost the power to adjust or accommodate for near vision, even if with the glasses prescribed and used by Da. Gliceria she had normal 20/20 vision for distance, she would still remain unable to read due to her previous operations for cataract on both eyes.
The correctness of the foregoing observations is attested to by the affidavit of Dr. Geminiano de Ocampo, Annex "B" of the motion to reconsider. In paragraph 6 of Ocampo's affidavit, he states:
6. In fact, a person with the above-stated visual acuity could read print in pica or elite type in two ways, i.e., either with reading glasses, meaning glasses for near vision, or even with his distance glasses, provided that it is slid down the bridge of the nose to place it farther from the eye. This act of sliding the glasses down the bridge of the nose takes place of automatic adjustment that the natural lenses of a normal eye make when one is reading.
Yet no evidence exists on record that Da. Gliceria possessed reading glasses or resorted to the maneuver scribed by Dr. Ocampo.
It is further objected that Dr. Tamesis failed to state categorically whether or not his patient could read print with the glasses he had equipped her, or whether he prescribed glasses for near vision. But the doctor was asked on those points, and certainly the burden of clarifying the matter lay squarely on the shoulders of the appellees, proponents of the will, whose duty it was to establish satisfactorily that Da. Gliceria was able to read the same. That their cross examination of Dr. Tamesis did not touch on those basic points is no ground for remanding the case for additional evidence, unless the doctrine is to be laid that a party whose proof is found on appeal to be deficient must be given opportunity to cure the deficiency. If that is the proposition, then it flies in the teeth of all precedents as to what constitutes newly discovered evidence, and throw overboard long and well established jurisprudence.
And this is not all. If Da. Gliceria had been prescribed glasses for near vision by any ophthalmologist (not necessarily by Dr. Tamesis) then she must have replaced the distance glasses she ordinarily wore when, after greeting and talking with the instrumental witnesses, she sat down to read and sign the purported will. But no witness ever testified about her changing eyeglasses in order to read and sign the will. None of the witnesses asserted that in order to read and sign the paper on the table in front of her she resorted to the unusual and extra-ordinary maneuver suggested in Dr. Gemeniano de Ocampo's affidavit ( jam quoted) of pushing down her glasses to the tip of her nose. Such action is so out of the ordinary that none of the witnesses would have failed to notice and testify about it. Is the case then being remanded to enable these witnesses to bridge the gaps in their previous testimony? I need not stress how dangerous such a policy would be.
The best proof that Da. Gliceria could not read her purported will is the fact that the document's extra ordinarily cramped aspect, the repeated replacement in it of the word "and" by the sign "&" in order to save space, and the obvious typographical errors, for example, "HULINH" for "HULING", "MERCRDAS" for "MERCEDES" etc. (See first Decision, 32 SCPA page 501) were passed over without any comment, remark or protest from her. She was apparently oblivious of the need for clarity in such an important document as her last will and testament. The instrumental witnesses stated (t.s.n., pages 164-165)) that the alleged testatrix merely read the document "silently" — a surmise that reminds one of the gypsy who insisted this horse could read, only it could not pronounce what was reading.ℒαwρhi৷
The resolution declares that in probate cases the court has the right to be satisfied by the evidence. Is this not true in every case? Yet the rule is that civil cases are to be decided by preponderance of evidence (Rule 133) and probate cases are civil cases. How often has this court refused to reopen trial because the evidence proffered was not newly discovered, but only forgotten evidence that did notjustify a remand?
Since the deficiencies in the technical evidence do no touch or refer to the essential facts required for pronouncing a judgment, and the facts that served as bases for the previous decision appear of record clear and unrebutted, I submit that the order of remand is unnecessary, unjustified and improper.
This is particularly true when it is considered that the Del Rosario estate proceedings were initiated in the Court of First Instance since 1960; our first decision on appeal was arrived at in 30 April 1970. Now after two more years a remand is ordered; when will the final decision be arrived at? Yet this Court has repeatedly held that the policy of the Rules is to close up the estates as promptly and as economically as possible;1 that the state fails wretchedly in its duty to its citizens if the machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome, unwieldy and expensive that a considerable portion of the estate is absorbed in the process of such division.2
WHEREFORE, I dissent from the resolution, and vote to deny the motion for reconsideration.
Concepcion, C.J., Makalintal and Castro, JJ., concur.
Footnotes
1 Lizarriga Hermanos vs. Abada, 40 Phil. 124; Pascual vs. Santos, 62 Phil. 148.
2 Moran on Rules of Court, Vol. 3, (1970 Ed.) 499-500: McMicking vs. Sy Cong Bieng 21, Phil. 211, 220; Mendoza vs. Pacheco, 64 Phil. 134: Borja vs. Borja, 83 Phil. 405.
Separate Opinions
TEEHANKEE, J., concurring:
I concur in the resolution setting aside the decision of April 30, 1970 which reversed the lower court's allowance to probate of the purported last will and testament of the late Gliceria Avelino del Rosario dated 29 December 1960 and ordering the remand of the case to the court a quo for the reception of further evidence relative to the factual question of whether or not the said decedent had actually read or understood the said document as her last will and testament.
I had concurred in the original decision of April 30, 1970 on the premises therein stated that "the supposed testatrix could not have physically read or understood (her) alleged testament" and that "for all intents and purposes 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"1 which requisites had not been complied with.
However, upon further consideration of the record as extensively and forcefully discussed in the resolution penned by Mr. Justice Barredo, serious doubts have arisen in my mind as to whether Dr. Tamesis' testimony vaguely and loosely given and the vital portions thereof as to the decedent's ability to read being inconclusively "made on pure recollections, etc." would justify the conclusion in the original decision that the decedent was "not unlike a blind testator" whose will must be governed not by the normal strict requirements of Article 805 of the Civil Code but by the special and extra-strict requirements of Article 808 of the Code, that the will be read to the testatrix service, once, by one of the subscribing witnesses and again by the acknowledging notary public.
This is in contrast to the direct evidence of the three instrumental witnesses of the will uniformly declaring that the testatrix read the will silently in their presence and that of the notary public before signing the same, which direct evidence was given full credence by the trial court. This, in turn, gives rise to another serious question of whether or not the secondary and professional testimony of Dr. Tamesis provides sufficient basis for this Court to overthrow the lower court's acceptance of such direct evidence.
Consequently, it cannot be said that the evidence of record is sufficiently preponderant as to warrant setting aside such an important document as the decedent's last will and testament which has been executed with all the formalities required by law.
Under these circumstances and even at the cost of the inevitable delay that would ensue, since it is vital to determine whether indeed the questioned document was indeed decedent's last will and testament so that in the affirmative case her intention and mandate as the "life and soul of a will" may be duly obeyed and implemented by her heirs, I believe that the best interests of justice and of the contending heirs themselves would be subserved by ordering the remand of the case to the trial court for the purposes, indicated in the main resolution.
Makasiar, J., concurs.
Footnotes
1 Original decision of April 30, 1970, at pp. 10 and 11. Article 808, Civil Code, quoted therein provides: "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."
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