G.R. No. 19077 ; January 23, 1923
JACOBA LIMPIN, applicant-appellee, vs. SABAS YALUNG, ET AL., opponents-appellants.

FACTS

Jacob Limpin, the applicant-appellee, sought the probate of the alleged will of Genoveva Yalung. The will was contested by the opponents-appellants. During the hearing for the probate, only two of the three attesting witnesses to the will testified. The third attesting witness, Cirilo Lacsamana, was not called to testify. The applicant did not show that this witness could not be found or provide any satisfactory explanation for the omission of his testimony. The lower court issued an order admitting the will to probate, which the opponents appealed.

ISSUE

Whether the probate court erred in admitting the will to probate despite the failure to call all attesting witnesses to testify in a contested proceeding.

RULING

Yes. The Supreme Court reversed the order of the lower court. The well-settled rule, as established in Cabang vs. Delfinado (34 Phil., 291), requires that in a contested will, all the attesting witnesses required by statute must be called to prove the will, or a showing must be made that they cannot be had. Since the applicant failed to call the third attesting witness, Cirilo Lacsamana, and did not account for this omission by showing he could not be found, the probate was improper. The case was remanded to the court of origin for a new trial where the applicant could complete her evidence, with the evidence already introduced remaining part of the record.