This is an appeal from  a judgment of the Court of First Instance  of  Pampanga denying the  petition of Vivencio Cuyugan for the probate of the will of Silvestra Baron.

The petition which was filed on February 1, 1933, recites among other  things  that  Silvestra Baron died on January 30,1933. The death certificate recites that she was eighty-six years of age and died of heart failure.  The petition further recites that she left an estate exceeding in value the sum of P80,000 which she disposed  of  by will dated December 17, 1932; that she died single without forced heirs.

The will appointed Vivencio Cuyugan, her nephew,  as executor and contains the following paragraphs which dispose of her estate:

"Que despues de pagados  todos  los gastos que se han de ocasionar desde que me caiga enferma hasta el entierro de mi cadaver, los bienes y  propiedades que he de dejar se repartiran  buenamente y en partes iguales mis hermanos llamados Guillermo Baron, Faustina Baron y los hijos de mi difunta hermana Antonia  Baron, con excepcion  de todo el dinero en metalico y mi  casa de materiales fuertes construida en el barrio del Pilar, San Fernando, Pampanga, que actualmente  habita mi hermano  Guillermo Baron,  porque estos  los doy de una manera absoluta como herencia de mi sobrino Vivencio Cuyugan.

"Que a la muerte de mis hermanos Guillermo y Faustina  Baron, todos  los terrenos que en virtud de este testamento les dejo en herencia, los doy en  herencia a mi sobrino VIVENCIO CUYUGAN, por lo  que, encargo y  prohibo a mis citados  hermanos Guillermo y Faustina Baron, que graven  o pongan cualquiera clase de obligation sobre los bienes que  les dejo en herencia."

The original of this will is signed "Silestra On" and the copy is signed "Silestra Baron"  (t. s. n. pp.  170,  171). Both copies are written in the Pampanga dialect and consist of one sheet and are witnessed in due form by Vicente David, Valeriano Silva  and Zacarias Nuguid  (known  to the testator).

The petition for probate recites:

"9. That on the date of the execution  of said will, that is to  say, on  December 17, 1932, the said  testatrix was about 80 years old, more or  less, and was  of  sound and disposing mind, and not acting under duress, menace, fraud or undue influence, and  was  in every  respect competent to dispose of her estate by will."

The amended  oppositions of Guillermo Baron, brother of  the deceased, and Faustina Baron,  sister of the deceased,  allege in substance  first, that at the time of the execution of the alleged will, Silvestra Baron  was mentally and physically incapacitated for the execution of a  will; and, second, that her signature and  alleged consent to the said will was obtained by imposition and undue  influence of the said Vivencio Cuyugan and  fraudulent confabulation between him and the attorney who prepared the document and the witnesses  who  affixed their signatures thereto.

Upon the issue thus drawn by the pleadings the judge of the Court of First Instance, after an extended  trial and a full consideration of the evidence,  came to  the following conclusion:

"Opinamos  que  influyeron  indebidamente  e impropiamente en la voluntad* ya debilitada de dona Silvestra Baro6n por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan y Regino  Cuyugan  durante el  otorgamiento del Exhibit A;  la ausencia de Faustina  Baron impedida de presenciarlo  por  algunos soldados de la Constabularia y el Jefe de Policia Municipal, Zacarias Nuguid;  la oposicion de Regino  Cuyugan a  que ella  flrmase  el documento preparado por el abogado Narciso declarando que no habia otorgado testamento el dia  anterior  a su traslado forzoso a San Fernando para que no se hiciese firmar documento analogo y la presencia del cabo Morales y de  algunos otros soldados, no  solamente cuando  se otorgd el testamento, sino cuando ella fue trasladada de casa contra su  voluntad y cuando se le hizo firmar el  Exhibit 10, y,  por  lo tanto, que ella no gozo de una completa libertad para  disponer de sus bienes en testamento, o con pleno conocimiento del alcance  de su contenido.  Solo asi se explica el que ella haya dejado toda la propiedad de sus bienes a sus  sobrinos, con quienes habia estado en pleito, con preterici6n de sus hermanos,  especialmente  de  la  opositora Faustina  Baron,  con  quien habia estado  conviviendo   durante 40 aiios  *  *  *.

"Sentadas  las premisas  de hecho y de derecho que an- teceden, el Juzgado no puede  menos de llegar a la conclusion de que  el testamento de autos no puede, ni debe, ser legalizado como el testamento y ultima voluntad de la finada Silvestra Baron.  Cuando existen pruebas suficien- tes  para convencer al Juzgado de que se ha ejercido influencia indebida en el  animo de la testadora y que como resultado  de  dicha influencia indebida esta ha otorgado el testamento que se presenta para su legalizacidn, la unica conclusidn que cabe es que el pretendido testamento no es expresitin de la voluntad de la supuesta testadora sino de los que sobre ella ejercieron la  influencia indebida."

An instrument purporting to be a will executed and witnessed in  accordance with the  formalities required by the statute is entitled to the  presumption of regularity.  But the burden of the evidence passes to the proponent when the oppositors submit credible evidence tending to show that the supposed testator  did not possess  testamentary capacity at  the time or that the  document was not the free and voluntary expression  of the alleged testator or that the will, for  any other reason, is void in law.  The  finding that the will was executed under undue influence or by the fraud of another presupposes  testamentary  capacity. In the present case the learned  trial judge refused the probate of the alleged will  on the ground that it was executed under the undue influence of other persons and we think the record warrants his  findings in this  respect.  The trial court also made findings of fact tending to show actual lack of testamentary capacity of Silvestra Baron and we have preferred to base our conclusion on that finding. The testamentary capacity of Silvestra Baron having been put in issue and the  burden of evidence resting upon the proponent, we think he has signally failed in affirmatively establishing the  testamentary capacity of Silvestra Baron at the time she executed the said purported will.

The evidence shows that the same  morning when  Silvestra Baron  signed the alleged will she suffered a physical collapse of such a serious nature that a physician and  a nurse were immediately called in.  By reason of her advanced age and the gravity of  her illness, she was unable to do anything for herself.  Her grandniece, Epifania Sampang, who reached the house  about an  hour or so after the old lady's collapse,  telephoned a message to Vivencio Cuyugan at San Fernando, some fourteen kilometers dis- tant, that Silvestra had had an  attack and was in a serious condition and requested that a  doctor be  sent immediately. Doctor Teopaco and a nurse arrived at  about ten o'clock and treated the patient with a  plaster on her back and ice packs over her heart and the doctor gave  her a hypodermic injection in the arm.  As the  doctor and the nurse were leaving, Vivencio Cuyugan, with an attorney and three witnesses, entered the house prepared to obtain the will of Silvestra Baron.   Neither the doctor nor the nurse were presented as witnesses by the  proponent.  Epifania Sampang, admittedly an intelligent young woman, who was the first to reach Silvestra Baron and  remained throughout the morning and attended to her, testified that when  she reached the house she found her grandaunt lying in bed, very pale and unconscious; that she called to her but  she did not answer and  only  groaned;  that her mouth was twisted and her lower lip, swollen. She went out to call  a doctor but all the doctors in Magalang were out whereupon she telephoned as stated to San Fernando for a doctor.

The subscribing witnesses  stated that it was their  belief that Silvestra understood the alleged will which she signed, but all of them  admitted  that although they were in her house about two hours not one of them exchanged  a single word of conversation with Silvestra.  The subscribing witness Zacarias Nuguid testified in part as follows:

 

"P.	Desde que los tres abogados Abad Santos, Silva y David y usted y Vivencio Cuyugan se acercaron a la cama de la finada, hasta que tanto ella como ustedes firmaron el testamento, £ha pronunciado ella alguna palabra? £ha dicho ella algo o no? R. No recuerdo.
"P.	Pero, por lo que usted recuerda, £ha dicho ella algo o no ha dicho nada? R. No recuerdo.
"P.	¿Usted ha dicho algo a ella? R. Nada.
"P.	El sefior Quirino Abad Santos ile ha dicho algo a ella? R. Nada. No he oido.
"P.	Los otros abogados Silva y David lie han dicho algo? R. No he oido.
"P.	ÀElla ha dicho algo a cualquiera de esos tres o a los abogados? R. No he oido que dijera algo.
"P.	Si ella hubiese dicho algo a los abogados, asf como los abogados hubieran hablado a ella, usted hubiera ofdo porque usted estaba cerca, £no es verdad? R.Si, sefior, hubiera podido oir.
"P.	Cuando el senor Silva termino de leer el testamento, ¿dijo algo la vieja? R. No he oido que dijera algo."

There  is no evidence that Silvestra  Baron took any active part in the  preparation of the alleged will except that when she was asked if she wished to include her sister Faustina in the  will she said "Yes" in Pampango.  There is no affirmative evidence that she understood the document when it was read to her.  The  person who  read the will to her testified as follows:

"R.	Despues de leido el testamento, tuve que entregarlo a dona Silvestra, y lo miro algun rato.
"P.	¿Y ella, efectivaxnente, cogid el testamento de ma- nos de usted? R. Lo entregue a sus manos.
"P.	¿Y ella lo cogi6 con sus manos? R. Si, señor.
"P.	¿Y lo tuvo en sus manos leyendo, mirando? R. Mirandolo asf.
"P.	¿Pero, no lo lefa? R. Lo estuvo mirando por mucho tiempo asi."

Standing at her bedside was the attorney  with three witnesses and the chief beneficiary, Vivencio Cuyugan, and yet so far as this record shows, not  a word  was exchanged between any of  them and the  suffering old  woman.  We don't know what drug the doctor  administered but it is clear to us from the evidence  that in her dazed  physical and mental condition she had  no adequate understanding of what she was doing at that time.  She could not even sign her name to the original will properly or correctly, and when this defect was noted by one of the astute subscribing witnesses, he suggested that they have her sign another copy (t. s. n. page 109) which was done.

She never saw the alleged will at any time again prior to her death which occurred forty-four days later.  It was immediately taken away by an attorney who kept  it in his possession alleging that she had  instructed him to keep it secret.  There is, however, credible evidence in the record that before her death she had denied to several persons that she had made any will.

This belief on her part that she had not made any will explains  her failure to  do any  act of revocation in the forty-four days during which she lingered in this life.  The doctrine that where the testator has had an opportunity to revoke his will subsequent  to the operation of an alleged undue influence upon him but  makes no change in it, the courts will consider this fact as weighing heavily against the testimony of  undue influence, has no  application to cases in which there has been  an initial lack of testamentary capacity. It has no application, moreover, where from the day of  execution until the death of the testator his mental condition is such that  he cannot judge the propriety of revoking the will.  Nor obviously does it apply to a case where the alleged testator harbors the belief that he had not executed the will in question.

In view of the premises, the judgment appealed from is affirmed with costs against the appellant.

Hull and Imperial, JJ., concur.

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CONCURRING
Malcolm, J.:

The main issue in this case, as I see it, is whether or not Silvestra Baron, a woman of advanced years and in a critical state of health, possessed testamentary capacity to make a will.  This was an issue of fact, and resolving it the trial  judge reached the conclusion that  the testatrix was not of disposing mind.  My review of  the evidence does not permit me to say that in thus deciding the trial judge was wrong.   As was  to he expected, in a case of this character, the oral testimony was conflicting, but in resolving  the  credibility of the  witnesses, a judge as experienced as Judge Hermogenes Reyes was in a much better position to do so than we are.  However, I may state that I have been considerably  influenced  by the testimony of the parish priest,  certainly a  disinterested  party,  who stated on the witness stand  that in response  to his question if she had made a will, Silvestra  Baron answered:  "There is no will, Father."  But from the premise of lack of testamentary capacity, it does not necessarily follow that anything of an  unprofessional nature  should be  imputed to the  lawyer who prepared the will and the other lawyers who acted as attesting witnesses.  The first named is the justice of the peace of San Fernando, Pampanga, and has an excellent reputation, which is not lessened in the least by his acts  in this  case,  and the last named are reputable  members of the bar.

For these reasons and to this extent, I concur.

VICKERS, J.:

I agree with the concurring opinion of Justice Malcolm.

Recto, J.:

I concur in the result.

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DISSENTING OPINION
Villa-Real, J.:

The lower court refused to probate the will of Silvestra Baron  on the ground that when she executed it she was under the undue influence of other persons; but  the majority of this court, while admitting the existence of such undue influence,  prefers to base its refusal on the  ground that she lacked testamentary capacity at the time of the execu- tion of said win.

The facts constituting the undue influence in the opinion of the lower court are summarized  in its  decision as follows :

"Opinamos  que  influyeron indebidamente  e impropiamente en la voluntad ya debilitada de dona  Silvestra Baron por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan y Regino Cuyugan durante el otorgamiento del Exhibit A; la ausencia  de Faustina Baron impedida de presenciarlo por algunos  soldados de  la Constabularia  y el Jefe de Policfa Municipal, Zacarias Nuguid; la oposicion de Regino Cuyugan a que ella firmase el  documento preoparado por el  abogado Narciso declarando que no habia otorgado testamento el dia anterior  a su traslado forzoso a San Fernando para que no se hiciese  firmar documento analogo y la presencia del cabo Morales y de algunos otros soldados, no solamente cuando se otorgo el testamento, sino cuando ella fue trasladada de  casa  contra su voluntad  y cuando se le hizo firmar el Exhibit 10, y, por lo tanto, que ella no gozo" de una complete libertad  para  disponer de sus bienes  en testamento, o con pleno conocimiento del alcance de su contenido. Solo asi se explica  el que ella haya dejado toda la propiedad de sus bienes a sus sobrinos, con quienes habia estado en pleito,  con pretericion de sus hermanos, especialmente de  la opositora Faustina Bardn, con quien habia estado conviviendo durante 40 anos  *   *  *."

And the facts constituting lack of  testamentary capacity are condensed in the opinion  of the majority as follows:

"The evidence shows that  the same morning when  Silvestra Baron signed the alleged will she suffered a physical collapse of such a serious nature that a physician and a nurse were  immediately called  in.  By reason of her advanced age and the gravity of her illness,  she was unable to do anything for herself.  Her grandniece, Epifania Sampang, who reached the house about an  hour or so after the old lady's collapse, telephoned a message to Vivencio Cuyugan at San Fernando, some fourteen kilometers distant,  that Silvestra had had an attack and was  in a serious condition and requested that  a doctor be sent immediately.  Doctor Teopaco and a nurse arrived at about ten o'clock and treated the patient with a plaster on her back and ice packs over her heart and the doctor gave her a hypodermic injection in the arm.  As the doctor and the nurse were leaving, Vivencio Cuyugan,  with an attorney and three witnesses, entered the house prepared to obtain the will of Silvestra Baron.  Neither the doctor nor the nurse were presented as witnesses by the  proponent.  Epifania Sampang, admittedly  an intelligent young woman, who was the first to reach Silvestra Baron and remained throughout the morning and attended to  her, testified that when she reached the house she found her grandaunt lying in bed, very pale and unconscious;  that she called to her but she did not answer and only  groaned;  that her mouth was twisted and her lower lip  swollen.  She went  out to call a doctor but all the doctors in Magalang were out whereupon she telephoned as stated to San Fernando for a doctor."

Examining now the facts which according to the findings of the lower  court constituted undue influence, we have in the first place the presence of the testatrix's nephews Regino Cuyugan and Vivencio Cuyugan.  There was nothing either in the presence of Vivencio Cuyugan or of that of Regino  Cuyugan which  could have  compelled Silvestra Baron to make Vivencio Cuyugan her most favored beneficiary in her will.  There is certainly nothing ill in nephews being present at the making of a will.   The evidence shows that these two Cuyugans just  stood by while the will was being read to the testatrix and when it  was presented to her for her signature.

The absence of Faustina Baron, the sister of Silvestra Baron, in  whose company the  latter was  living, who, according to tiie witnesses for the opponents, but denied by the witnesses for the proponent, while the will was being made, was prevented to come into the house by some Constabulary soldiers and the chief of police of San Fernando, Pampanga, Zacarias Nuguid, is another fact mentioned by the  lower court as constituting  undue influence.  Even granting  that Faustina Baron was  prevented to come to the  house while Silvestra Baron was making her will, I fail to see how such act  on the part of the  Constabulary soldiers could have unduly influenced the testatrix in the making of her will.

The presence of some Constabulary soldiers outside the house and in the kitchen  is also one of the reasons which led the lower court  to conclude that undue influence was used in making Silvestra Baron sign her  will.  Silvestra Baron was not an ignorant old lady.  She was a landed proprietress, who  according  to the  custom  prevailing in the  Philippine Islands; managed  her own property, and in so doing she had to deal with many farm laborers in such a way as to  make them respect her.   The presence of Constabulary soldiers in towns and barrios is not a rare occurrence, and country people are  accustomed to seeing them around whether on patrol or quarantine duty.  There is,  therefore,  nothing  in  the  mere  presence of the Constabulary soldiers in the  house of Silvestra  Baron at the time of making her  will which could have influenced her. Besides,  the  testatrix  must have  known the presence  of such soldiers before  she collapsed, because they had been there investigating  the  assault  and  robbery  committed against her a few days before.  There is no  evidence that said soldiers were brought to the house for the purpose of guarding the making of the will.

The fact that the  chief of police of San Fernando,  Zacarias Nuguid, was brought by Attorney Quirino Abad Santos,  whom the old lady had requested to prepare her will, had no moire significance than the bringing of the other attorneys to  be witnesses to  the will.  There is certainly no evil in making a chief of police a witness  to a will, nor is there any law disqualifying him to be such witness.

The alleged attitude of Regino Cuyugan in trying to prevent her aunt Silvestra Baron on December  18, 1932,  the day following the making of her will, to sign a document prepared by Attorney Jose A. Narciso revoking her said will, even if it were true, could in no way have influenced her in the making of said will which took place the day previous.

The lower court also  found that the will  of Silvestra Baron was weakened by old  age.  In this connection I prefer to reproduce here what is said in 68 Corpus Juris, 440-442:

"Old age A  person  possessing the requisites of testamentary capacity is not incapacitated  from making a will by old age, although his advanced years be accompanied by infirmity of mind and body. Nor is he incapacitated by failing memory,  vacillating judgment,  childishness, slovenliness  in dress,  eccentricities or  peculiarities in habit  or speech, and even delusions or hallucinations if they do not affect the execution of the  will, and he is not limited to conventional methods of disposition.  The will is not valid where an aged person is so enfeebled mentally as not to understand what he is doing."

If undue influence had been used  to compel Silvestra Baron to make  her will on  the 17th  of  December, 1932, she could have changed her said will after all the circumstances which according to the court below constituted said undue influence  had disappeared.  After  the  making  of her will Silvestra Baron was left alone  in her house  in the company of  her nephew Begino Cuyugan, her grandniece Epifania Sampang  and her sister Faustina Baron. Upon gaining access to  the house and learning that her sister  Silvestra  Baron had  signed some papers, Faustina Baron started immediately  to look for Attorney Jose  A. Narciso, and with him went to the house of Attorney Valeriano Silva who upon  being questioned informed the latter  that  the  old lady  had  signed  a will.   Thereupon efforts were made to have the will revoked,  and  to this effect Attorney Jose A. Narciso prepared a document which the old lady refused to  sign as  we have already stated. On the 20th of December, 1932, the old lady was taken  by her brother Guillermo Baron, one of the opponents, to her own house in San Fernando, Pampanga, occupied by said Guillermo, and  there she stayed for forty days before her death.  During that time she signed on two different occasions two documents, one ratifying the making of her will  and the other appointing her nephew Vivencio Cuyugan  her attorney in fact.   An old lady who after making her will remains in the house of her sister, free from any outside influence, refuses to  sign a document purporting to be a revocation of her will,  lives for forty days in her own house in San  Fernando,  Pampanga, in  the company of her brother, and there signs two important documents, cannot certainly be said  to have been unduly  influenced when she made her will.

In Brownlie  vs. Brownlie (93 A.  Ii.  R., 1048), the Supreme Court of Illinois said the following:

"* *  *  *  The undue influence which will  invalidate a will  must be directly connected with the  execution of the instrument, be operating when the  will was made, and thereby prevent the testator from exercising his own wish and  will  in the disposition of his estate.  (Flanigon vs. Smith, 337 III, 572; 169 N. E., 767;  Chaney vs. Baker, 304  111., 362; 136 N. E., 804; Goff vs. Gerhart,  316 111., 513; 147 N. E., 419; McGrady vs. McGrady,  298 111., 129; 131  N. E., 251.)   The fact that the beneficiaries of a will are  those by whom the testator was surrounded and with whom he stood in  confidential  relationship at the time  of executing his will  is no  ground for inferring undue in- fluence.   (Michael vs. Marshall, 201 111., 70; 66 N. E.f 273; Rutherford vs. Morris, 77 111., 397.)  The influence  must be directed towards procuring the will  in favor of certain parties and must be such as to destroy the testator's freedom of will and purpose.  (Pond vs. Hollett, 310 111., 31; 141  N. E., 403; Gregory  vs. Richey, 307  111.,  219; 138  N. E.,  669;  Blackhurst vs. James, 304  111.,  536; 136 N. E., 754; Snell vs. Weldon, 239 111., 279; 87 N. E., 1022.)  Proof of undue influence  must be consistent with the exercise of undue influence and also be inconsistent with its absence. (Cunningham vs. Dorwart, supra; Gompher vs. Browning, 219 HI., 429; 76 N. E., 678; 109 Am. St. Rep., 346.)" In the case of Torres and Lopez de Bueno vs. Lopez (48 Phil.,  772),  this court in an  opinion  written  by Justice Malcolm,  defines undue influence as follows:

"Undue influence as used in connection with the law of wills,  may be defined as that  which compels the testator to do that which is against the  will from fear, the desire of peace, or  from other  feeling which he is unable to resist."

In Applehans vs. Jurgenson  (67 A. L. R., 857), the Supreme Court of  Illinois said:

"The undue influence  which  will  avoid a will must  be directly connected  with the execution  of the instrument and operate at the time it is made.   The influence must be specially directed toward procuring  the will in  favor of a particular party or parties, and it must be such as to destroy the freedom of the testator's will and  render the instrument  obviously more the  offspring of the will of another or others  that of his own.  (Ughetti vs. Ughetti, 334 III., 398; 166 N. E., 90; Ray vs.  Koenigsmarck, 329 111., 588;  161 N. E., 124; Farmer vs. Davis, 289 111., 392; 124 N. E., 640; Hurd vs. Reed, 260 111., 154; 102 N. E., 1048;  Larabee vs. Larabee, 240 111., 676; 88 N. E., 1037; Snell vs. Weldon, 239 111., 279;  87 N. E., 1022; Wickes vs. Walden, 228 111., 56;  81  N. E., 798; Woodman vs. Illinois Trust  & Sav. Bank, 211  111., 578; 71 N. E., 1099; Roe vs. Taylor, 45 HI., 485.)  The evidence failed to establish these requirements. The law  does not require that a testator, in making disposition of his property, shall be humane or even just. If he possesses the requisite  mental capacity, he  has the right to make an unequal  distribution of his property among  his heirs or to give it entirely to strangers. (McGrady vs. McGrady, 298 111., 129; 131 N. E., 251.)" We  have seen that none of  the facts which  the  lower court  found  to  constitute  undue influence  is such  as to cause   fear,  desire of peace, or any other  feeling which Silvestra Baron was unable to resist.

As to the effect of an opportunity of revocation upon an alleged undue influence,  we read in 28 R. C. L., 151, the following rule:

"106. Opportunity of revocation. Where the testator has had an opportunity to revoke his  will subsequent to the operation of an alleged undue influence upon him, but makes no  change in it, the court as  a general rule considers the effect of the testimony of the undue  influence as destroyed."

From the foregoing definition of undue influence,  and the existence of an opportunity to revoke without taking advantage of it,  I  come to the conclusion that  when Silvestra Baron signed her  will she was not under any undue influence, and that if she had ever been in such a situation she could have revoked  her will at any  time during the forty days which she survived the making of said  will. The fact  that not only she had not done so but that she made a power of attorney in favor of her nephew Vivencio Cuyugan, the chief beneficiary under her will, and ratified the making of said will,  is conclusive proof that no undue influence had been  exerted to  compel her  to sign her will.

Another fact which led the trial court  to conclude that undue influence was exercised  upon  Silvestra Baron is that in her will she left most of her property to her nephews leaving nothing to  her brother and sister Faustina Baron except a life usufruct.

In the case of Pecson vs. Coronel (45  Phil.,  216), this court said the following:

"Although family ties  in this country are very strongly knit, the exclusion  of  relatives, who are not forced heirs, from the  inheritance is not an exceptional case.  The inhabitants  of the  Archipelago  do  not appear to  be averse to the freedom to make a will enshrined by article 783 of the Civil Code, which has been in force in the Philippines since the  year  1889.   But even if the appointment of a beneficiary do not seem to be the most usual and ordinary because the beneficiary is  not a  relative  of the testatrix who has relatives by blood, this alone will not render the appointment void per  se"

In 68 Corpus Juris,  452, we read the following:

"The fact that a will may be unnatural, unfair, or unjust creates of itself no presumption that the testator was incompetent at the time of its execution.  No  presumption of mental incapacity arises from the fact that the will makes an unequal distribution of property among the next of kin, or that it gives property to persons other than the natural objects of the testator's bounty.  Any departure from the usual course in which a person prompted by  ordinary instincts  and natural impulses would  have his  properly go is presumed to have been made  by the testator because of reasons rationally conceived which  were satisfactory to him, and on the probate of a will  the fact that the will is unnatural does not shift the burden to the proponent.  According to some decisions, however, where a will is an unnatural one it is the duty of the proponent on the probate of the will to give some reasonable explanation of its unnatural character."

In the present case  there is evidence to the effect that Silvestra  Baron trusted her nephews,  specially  Vivencio Cuyugan,  more than her brother Guillermo Baron and her sister Faustina Baron.  Faustina Baron herself testified that after the  assault  and robbery on December 9,  1932, Silvestra Baron entrusted to her nephews Ventura Cuyu- gan and Vivencio Cuyugan the combination  of the  safe where she kept her valuables and documents and gave them the duplicates  of  the  keys  to the interior compartments and drawers (pp. 254, 255, t. s. n.).  That Silvestra Baron did not trust her sister Faustina Baron may be inferred from the latter's own testimony on page 291 (t. s. n.) to the effect that before the 17th of December,  1932, she did not dare to suggest to her sister Silvestra Baron to make a will because the latter  did not like to hear anything about the matter, but she told Faustina that she had already made her will Ions: time ago.   If to this we add the fact that a complaint was signed by Silvestra Baron against her sister Faustina and the latter's son Emilio Lacson for the assault and  robbery committed against her,  then  we have  a  full explanation why in her will Silvestra Baron bequeathed to her nephews almost all her property leaving to her brother and sister nothing but a life usufruct.

Passing now to the question of lack of testamentary capacity or disposing  mind, which is the ground preferred by the majority opinion on  which to  base  its rejection of the probate of  the said  will, we find  in the first place the alleged failure  of the proponent to  call as witnesses  the doctor and. the nurse who  attended  Silvestra Baron  im- mediately after she collapsed, apparently inferring that had they testified their testimony would have been unfavorable to the claim of  sanity.  The burden of  proving sanity, which falls on the shoulders of  the  proponent of a will, was  discharged by Vivencio  Cuyugan when he put to the witness stand Attorney Quirino Abad Santos,  the drawer of the will, and attorneys Vicente T.  David and Valeriano Silva, and the chief of police of San Fernando, Pampanga, Zacarias Nuguid, the three witnesses  who  signed the will. They testified unanimously that when the testatrix signed her will she was of sound mind, judging from her appearance and the manner she signed it.  "An attesting witness to a will may base an opinion of the testator's mental capacity upon his appearance at the time of executing the will. (Brownlie vs. Brownlie,  93 A. L. R., 1041.)  This testimony was  sufficient to  make  and  did make a prima facie case, (68 Corpus Juris, 450), and the burden of going forward to show testamentary incapacity having shifted to the contestants  (68 Corpus Juris,  451).  It was not therefore the duty of the proponent to call  the doctor and the  nurse who attended Silvestra  Baron when she collapsed to show that she was of sound mind but of the contestants to show incapacity.

That Silvestra Baron did  not become unconscious as the result  of her fall is shown  by the very testimony of Epifania Sampang who said, referring to her grandaunt: "Estaba inconsciente, lanzaba quejidos, decfa: 'Faustina, Faustina' ; mandaba buscar a la vieja Faustina."  If the testatrix was really unconscious as the result of said fall she would not have been able to call  her sister Faustina by her name, nor could she have given orders to  locate her.  Because her grandaunt did not answer her when she called her, Epifania  Sampang imagined that she  was  unconscious. Thus, all the evidence concerning the unconscious state of Silvestra Baron in the morning she made her will consisted of the  testimony of Epifania Sampang alone.  The doctor who attended Silvestra JJaron after her  fall was the one qualified to testify as to her mental condition and not her grandniece.  The contestants whose duty it was to call said doctor  to prove unconsciousness failed to do so.

In the case of Torres  and Lopez de  Bueno  vs. Lopez, supra,  this court said:

"On January  3, 1924, when the testator, Tomas Rodriguez, made his will, he was 76 years old, physically decrepit, weak of intellect, suffering  from a loss of memory, had a guardian of his person and his property, and was eccentric, but he still possessed that spark of reason and of life, that strength of mind to form  a  fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms 'testamentary capacity.'  Two of the subscribing witnesses testified clearly to the regular manner in which the will was executed, and one did not  The attending physician and three other doctors who were present at the execution of the will expressed opinions entirely favorable to the capacity of the testator.  Three other members of the  medical profession expressed opinions entirely unfavorable  to the  capacity  of the testator and certified that he  was   of unsound  mind.  Held: That  Tomas Rodriguez  on January  3, 1924,  possessed sufficient mentality to make a will which would meet the legal test regarding testamentary capacity; that the proponents of the will have carried successfully the burden of proof and have shown him of sound mind on that date; and that it was reversible error on the part of the trial court not to admit his will to probate."

While it  is true that  in the present case no physician testified as to the condition of Silvestra Baron's mind when she signed her will, we have however the testimony of three reputable attorneys to the effect  that  judging from her appearance and the ways she acted when she signed her will she was of sound mind.  This was corroborated by the fact that when the next day Attorney Jose A. Narciso, upon learning that she had made a will,  he  tried to make her revoke said will which she refused.  This in itself is an admission that she was of sound disposing mind.  The very finding of the lower court that Silvestra Baron was unduly influenced in the making of her will is an implied admission that she possessed testamentary capacity.

The preponderance of evidence and the implied admission of the lower court show, therefore, that when Silvestra Baron made her will she  was of sound disposing mind.

From all the foregoing considerations, I come to the conclusion that Silvestra Baron made her will free from any undue influence and in a  sound disposing mind, and, therefore, said will should be probated.

AVANCEÑA, C. J.:
I concur in this dissenting opinion of Justice Villa-ReaL

DIAZ, J:
I concur with Justice Villa-Real in his dissenting opinion.

GODDARD, J.:
I concur in the dissenting opinion of  Justice Villa-Real