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[IN RE WILL OF DECEASED JOSE B. SUNTAY. MARIA NATIVIDAD LIM BILLIAN v. APOLONIO SUNTAY](https://lawyerly.ph/juris/view/c1cd1?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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63 Phil. 793

[ G. R. No. 44276, November 25, 1936 ]

IN RE WILL OF THE DECEASED JOSE B. SUNTAY. MARIA NATIVIDAD LIM BILLIAN, PETITIONER AND APPELLANT, VS. APOLONIO SUNTAY, ANGEL SUNTAY, MANUEL SUNTAY, AND JOSE SUNTAY, OPPOSITORS AND APPELLEES.

D E C I S I O N

AVANCEƃ'A, C.J.:

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 will in the envelope was executed in the Philippines, with Messrs. Go Ton, Alberto Barretto 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 these allegations, 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 witnesses 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 became 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 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 Barretto 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.

Villa-Real,  Abad  Santos,  Imperial, Diaz,  Laurel,  and Conception, JJ., concur.

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