[G.R. No. L-20357. November 25, 1967.

] IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO GATCHALIAN, deceased. PEDRO REYES GARCIA, Petitioner-Appellant, v. FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY and ANGELES G. TALANAY, Oppositors-Appellees. 1. CIVIL LAW; PROBATE OF WILLS; ACKNOWLEDGMENT BY TESTATOR AND WITNESSES BEFORE A NOTARY PUBLIC, REQUISITE OF; FAILURE TO OBSERVE; EFFECT ON ALLOWANCE OF WILL. A will to be valid, must be acknowledged before a notary public not only by the testator but also by attesting witnesses (In re: Testate Estate of Alberto, G.R. No. L-11948, April 29, 1959). As the document under consideration does not comply with this requirement, the same may not be probated. This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of Rizal in Special Proceedings No. 2623 denying the allowance of the will of the late Gregorio Gatchalian, on the ground that the attesting witnesses did not acknowledge it before a notary public as required by law. On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of Pasig, Province of Rizal, leaving no forced heirs. On April 2 of the same year, appellant filed a petition with the above-named court for the probate of said alleged will (Exhibit "C") wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles C. Talanay, appellees herein, opposed the petition on the ground, among others, that the will was procured by fraud; that the deceased did not intend the instrument signed by him to be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the alleged execution of said will. After due trial, the court rendered the appealed decision finding the document Exhibit "C" to be the authentic last will of the deceased but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil Code that the will must be acknowledged before a notary public by the testator and the witnesses. An examination of the document (Exhibit "C") shows that the same was acknowledged before a notary public by the testator but not by the instrumental witnesses. Article 806 of the New Civil Code reads as follows:jgc:chanrobles.com.ph "Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court."cralaw virtua1aw library We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity (In re: Testate Estate of Alberto, G.R. No. L-11948, April 29, 1959). As the document under consideration does not comply with this requirement, it is obvious that the same may not be probated. WHEREFORE, the decision appealed from is affirmed, with costs.

MAGLASANG VS. HEIRS OF CORAZON CABATINGAN, 383 SCRA 6- DONATION MORTIS CAUSA

In a donation mortis causa, the right of disposition is not transferred to the donee while the donor is still alive. FACTS: On February 1992, Conchita Cabatingan executed in favor of her brother, Nicolas Cabatingan, a "Deed of Conditional of Donation Inter Vivos for House and Lot." Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan on January 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land;(b) Nicolas Cabatingan, a portion of a parcel of land; and (c) Merly S. Cabatingan, a portion of land.These deeds of donation contain similar provisions, to wit: "That for and in consideration of the love and affection of the DONOR for the DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect; x x x" On May 1995, Conchita Cabatingan died. Upon learning of the existence of the foregoing donations, respondents (Heirs of Corazon Cabatingan) filed an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, seeking the annulment of said four (4) deeds of donation executed. Heirs allege, inter alia, that petitioners, fraudulently caused the donations and that the documents are void for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that these are donations mortis causa. RTC ruled that the donation was mortis causa thus void for not following the requisite forms. ISSUE: Whether or not the donation was mortis causa? HELD: Mortis Causa. In a donation mortis causa, "the right of disposition is not transferred to the donee while the donor is still alive." In determining whether a donation is one of mortis causa, the following characteristics must be taken into account: (1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; (2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; And (3) That the transfer should be void if the transferor should survive the transferee. In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan's death. The phrase "to become effective upon the death of the DONOR" admits of no other interpretation but that Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime. For a donation mortis causa to be valid it must conform with the following requisites: ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall

also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written , and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (n)

[ G.R. No. 131953, June 05, 2002 ] MA. ESTELA MAGLASANG, NICOLAS CABATINGAN AND MERLY S. CABATINGAN, PETITIONERS, VS. THE HEIRS OF CORAZON CABATINGAN Posed for resolution before the Court in this petition for review on certiorari filed under Rule 45 of the Rules of Court is the sole issue of whether the donations made by the late Conchita Cabatingan are donations inter vivos or mortis causa. The facts of the case are as follows: On February 17, 1992, Conchita Cabatingan executed in favor of her brother, petitioner Nicolas Cabatingan, a Deed of Conditional of Donation (sic) Inter Vivos for House and Lot covering one-half () portion of the formers house and lot located at Cot-cot, Liloan, Cebu.[1] Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan on January 14, 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land - one located in Cogon, Cebu (307 sq. m.) and the other, a portion of a parcel of land in Masbate (50,232 sq. m.); (b) petitioner Nicolas Cabatingan, a portion of a parcel of land located in Masbate (80,000 sq. m.); and (c) petitioner Merly S. Cabatingan, a portion of the Masbate property (80,000 sq. m.).[2] These deeds of donation contain similar provisions, to wit: That for and in consideration of the love and affection of the DONOR for the DONEE, the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect; On May 9, 1995, Conchita Cabatingan died. Upon learning of the existence of the foregoing donations, respondents filed with the Regional Trial Court of Mandaue, Branch 55, an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, docketed as Civil Case No. MAN-2599, seeking the annulment of said four (4) deeds of donation executed on January 14, 1995. Respondents allege, inter alia, that petitioners, through their sinister machinations and strategies and taking advantage of Conchita Cabatingans fragile condition, caused the execution of the deeds of donation, and, that the documents are void for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that these are donations mortis causa.[4] Respondents prayed that a receiver be appointed in order to preserve the disputed properties, and, that they be declared as co-owners of the properties in equal shares, together with petitioner Nicolas Cabatingan.[5] Petitioners in their Amended Answer, deny respondents allegations contending that Conchita Cabatingan freely, knowingly and voluntarily caused the preparation of the instruments. On respondents motion, the court a quo rendered a partial judgment on the pleadings on December 2, 1997 in favor of respondents, with the following dispositive portion: WHEREREFORE, and in consideration of all the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendant and unwilling co-plaintiff with regards (sic) to the four Deeds of Donation Annexes A, A-1, B and Annex C which is the subject of this partial decision by:

a) Declaring the four Deeds of Donation as null and void ab initio for being a donation Mortis Causa and for failure to comply with formal and solemn requisite under Art. 806 of the New Civil Code; b) To declare the plaintiffs and defendants as well as unwilling co-plaintiff as the heirs of the deceased Conchita Cabatingan and therefore hereditary co-owners of the properties subject of this partial decision, as mandated under Art. 777 of the New Civil Code; SO ORDERED.[7] The court a quo ruled that the donations are donations mortis causa and therefore the four (4) deeds in question executed on January 14, 1995 are null and void for failure to comply with the requisites of Article 806 of the Civil Code on solemnities of wills and testaments.[8] Raising questions of law, petitioners elevated the court a quos decision to this Court,[9] alleging that: THE LOWER COURT PALPABLY DISREGARDED THE LONG-AND-WELL-ESTABLISHED RULINGS OF THIS HONORABLE SUPREME COURT ON THE CHARACTERIZATION OF DONATIONS AS INTER VIVOS OR MORTIS CAUSA AND, INSTEAD, PROCEEDED TO INTERPRET THE DONATIONS IN QUESTION IN A MANNER CONTRARY THERETO.[10] Petitioners insist that the donations are inter vivos donations as these were made by the late Conchita Cabatingan in consideration of the love and affection of the donor for the donee, and there is nothing in the deeds which indicate that the donations were made in consideration of Cabatingans death.[11] In addition, petitioners contend that the stipulation on rescission in case petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos. Petitioners arguments are bereft of merit. In a donation mortis causa, the right of disposition is not transferred to the donee while the donor is still alive.[12] In determining whether a donation is one of mortis causa, the following characteristics must be taken into account: (1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; (2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and (3) That the transfer should be void if the transferor should survive the transferee.[13] In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingans death.[14] The phrase to become effective upon the death of the DONOR admits of no other interpretation but that Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the donations as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of donation, to wit:

That the DONEE does hereby accept the foregoing donation mortis causa under the terms and conditions set forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and generosity of the DONOR.

SIGNED by the above-named DONOR and DONEE at the foot of this Deed of Donation mortis causa, which consists of two (2) pages x x x.[15] That the donations were made in consideration of the love and affection of the donor does not qualify the donations as inter vivos because transfers mortis causa may also be made for the same reason. [16] Well in point is National Treasurer of the Phils. v. Vda. de Meimban. [17] In said case, the questioned donation contained the provision: "That for and in consideration of the love and affection which the DONOR has for the DONEE, the said Donor by these presents does hereby give, transfer, and convey unto the DONEE, her heirs and assigns a portion of ONE HUNDRED THOUSAND (100,000) SQUARE METERS, on the southeastern part Pro-indiviso of the above described property. (The portion herein donated is within Lot 2-B of the proposed amendment Plan Subdivision of Lots Nos. 1 and 2, Psu-109393), with all the buildings and improvements thereon, to become effective upon the death of the DONOR. (italics supplied.)" [18] Notably, the foregoing provision is similar to that contained in the donation executed by Cabatingan. We held in Meimban case that the donation is a mortis causa donation, and that the above quoted provision establishes the donors intention to transfer the ownership and possession of the donated property to the donee only after the formers death. Further: As the donation is in the nature of a mortis causa disposition, the formalities of a will should have been complied with under Article 728 of the Civil Code, otherwise, the donation is void and would produce no effect. As we have held in Alejandro v. Geraldez (78 SCRA 245,253), If the donation is made in contemplation of the donors death, meaning that the full or naked ownership of the donated properties will pass to the donee because of the donors death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be embodied in a last will and testament. (Citing Bonsato v. Court of Appeals, 95 Phil. 481).[19] We apply the above rulings to the present case. The herein subject deeds expressly provide that the donation shall be rescinded in case petitioners predecease Conchita Cabatingan. As stated in Reyes v. Mosqueda,[20] one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated be transferrred to the donee or independently of, and not by reason of her death, she would have not expressed such proviso in the subject deeds. Considering that the disputed donations are donations mortis causa, the same partake of the nature of testamentary provisions[21] and as such, said deeds must be executed in accordance with the requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil Code, to wit:

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written , and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (n) The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were not executed in the manner provided for under the above-quoted provisions of law. Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void. WHEREFORE, the petition is hereby DENIED for lack of merit.

[G.R. No. L-32213. November 26, 1973.] AGAPITA N. CRUZ, Petitioner, v. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, Respondents. Petition to review on certiorari the judgment of the Court of First Instance of Cebu allowing the probate of the last will and testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased, opposed the allowance of the will (Exhibit "E"), alleging that the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was executed without the testator having been fully informed of the contents thereof, particularly as to what properties he was disposing; and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament. Hence this appeal by certiorari which was given due course. The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public. Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco Paares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:jgc:chanrobles.com.ph "It is said that there are practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testators signature under oath rather than as attesting the execution of the instrument."cralaw virtua1aw library After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Websters New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G. 583.) That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For them he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud (Report of the Code Commission p. 106-107), would be thwarted. Admittedly, there are American precedents holding that a notary public may, in addition, act as a witness to the execution of the document he has notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130) There are others holding that his signing merely as a notary in a will nonetheless makes him a witness thereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybees Estate 160 N. W. 900; Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein, because the notaries public and witnesses referred to in the aforecited cases merely acted as instrumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the notary public acted not only as attesting witness but also as acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:jgc:chanrobles.com.ph "ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court." [Emphasis supplied] To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805 requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for that purpose. In the circumstances, the law would not be duly observed. FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside. Cost against the appellee.

[G.R. No. 74695. September 14, 1993.] In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, Petitioner, v. HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, Respondents. SYLLABUS 1. CIVIL LAW; PROBATE OF WILL; ART. 808, NEW CIVIL CODE; SCOPE OF THE TERM "BLINDNESS." The following pronouncement in Garcia v. Vasquez provides an insight into the scope of the term "blindness" as used in Art. 808, to wit: "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 . . ." Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions. 2. ID.; ID.; ID.; WILL MUST BE READ TWICE; PURPOSE. Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions. 3. ID.; ID.; ID.; SUBSTANTIAL COMPLIANCE THEREWITH, ACCEPTABLE; REASON. This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testators will. 4. ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, private respondent read the testators will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testators residence precisely for the purpose of securing his conformity to the draft. Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the

Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado. On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna. As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them. Meanwhile, Brigidos holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testators eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies. A petition for the probate of the notarial will and codicil was filed upon the testators death on 3 January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear or threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lions share of the testators estate; and lastly, that the signature of the testator was procured by fraud or trick. When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto were executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceaseds last will and codicil should have been denied. On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will was served. The issues now before us can be stated thus: Was Brigido Alvarado blind for purposes of Art. 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977. The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads:jgc:chanrobles.com.ph "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."cralaw virtua1aw library Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in laymans terms by Dr. Ruperto Roasa, whose expertise was admitted by private Respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation. 8 On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with. We agree with petitioner in this respect. Regardless of respondents staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading for him. The following pronouncement in Garcia v. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art. 808, to wit:jgc:chanrobles.com.ph "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 . . ."cralaw virtua1aw library Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions. That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires. Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance is a strict compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latters will and codicil should have been disallowed. We sustain private respondents stand and necessarily, the petition must be denied. This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14 In the case at bar, private respondent read the testators will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testators residence precisely for the purpose of securing his conformity to the draft. 15 Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testators physician) asked the testator whether the contents of the documents were of his own free will. Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testators will. 17

As a final word to convince petitioner of the propriety of the trial courts Probate Order and its affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:jgc:chanrobles.com.ph "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testators will, must be disregarded" (Emphasis supplied). Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside for the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served. WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against petitioner. SO ORDERED.

[G.R. No. L-12190. August 30, 1958. ] TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, PetitionerAppellant, v. ILDEFONSO YAP, Oppositor-Appellee. SYLLABUS 1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED. The execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity. On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words: "Nobyembre 5, 1951 Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang sumusunod:chanrob1es virtual 1aw library Vicente Esguerra, Sr. 5 Bahagi Fausto E. Gan 2 Bahagi Rosario E. Gan 2 Bahagi Filomena Alto 1 Bahagi Beatriz Alto 1 Bahagi At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siyay magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pagalang Felicidad Esguerra-Alto. At kung ito ay may kakulagan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan. (Lagda) Felicidad E. Alto-Yap" Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:chanrob1es virtual 1aw library Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it. Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time. When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of him by reason of his well-known violent temper, shedelivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time. 2 From the oppositors proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and owned by the Yap spouses. Physicians help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctors advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day. The trial judge refused to credit the petitioners evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he

returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it. In the face of these improbabilities, the trial judge had to accept the oppositors evidence that Felicidad did not and could not have executed such holographic will. In this appeal, the major portion of appellants brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositors brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The Spanish Civil Code permited the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills. The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed."cralaw virtua1aw library This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authenticity (Abangan v. Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza v. Pilapil, 40 off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez v. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.) . Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient, if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang v. Delfinado 34 Phil., 291; Tolentino v. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances of its due execution. Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedents handwriting) and if

the court deem it necessary, expert testimony may be resorted to."cralaw virtua1aw library The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testators hand. However, the oppositor may present other witnesses who also know the testators handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity 3 the testators handwriting has disappeared. Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testators handwriting? His witnesses who know testators handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testators hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponents witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceaseds handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation? The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) . Could Rule 77 be extended, by analogy, to holographic wills? Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen 4 an implied admission that such loss or theft renders it useless. This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is

usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they cant do unless the will itself is presented to the Court and to them. Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them. We find confirmation of these ideas about exhibition of the document itself in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. library This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter. (According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature. Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555). Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to

lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to lend themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will. Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer the whole fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10 One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judges disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husbands trip to Davao, a few days after the alleged execution of the will. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11 Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with costs against petitioner.

[G.R. No. L-58509. December 7, 1982.] IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA, deceased, MARCELA RODELAS, Petitioner-Appellant, v. AMPARO ARANZA, ET AL., oppositorsappellees, ATTY. LORENZO SUMULONG, intervenor. SYNOPSIS The probate court ordered the dismissal of appellants petition for the allowance of the holographic will of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will which was presented for probate, cannot stand in lieu of the lost original, for the law regards the document itself as the material proof of the authenticity of the said will, citing the case of Gan v. Yap, 104 Phil. 509, 522. On appeal, the only question is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. The Supreme Court, in setting aside the lower courts order of dismissal, held that a photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can he determined by the probate court, as comparison can be made with the standard writings of the testator. Assailed order of dismissal, set aside. SYLLABUS 1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the Court after its due execution has been proved. 2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. 3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS AVAILABLE; REASON. If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. 4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT BAR. A photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan v. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: "(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court:j "(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will; "(3) The alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and "(4) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. "The appellees likewise moved for the consolidation of the case with another case (Sp. Proc. No. 8275). Their motion was granted by the court in an order dated April 4, 1977. "On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: "(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and "(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. "Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. "The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: . . . It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. In the case of Gan v. Yap, 104 Phil. 509, 522, the Supreme Court held that in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while

Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellants motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellants petition is contrary to law and well-settled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: "I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; "II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; "III. THE LOWER COURT ERRED IN DISMISSING APPELLANTS WILL." virtua1aw library The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan v. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellants motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED.

[G.R. No. 106720. September 15, 1994.] SPOUSES ROBERTO AND THELMA AJERO, Petitioners, v. THE COURT OF APPEALS AND CLEMENTE SAND, Respondents. This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads: "PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs." The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982. In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.chanrobles.com.ph : virtual law library On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedents holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will. Private respondent opposed the petition on the grounds that: neither the testaments body nor the signature therein was in decedents handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner. Notwithstanding the oppositions, the trial court admitted the decedents holographic will to probate. It found, inter alia: "Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix. "For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix. "While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and

categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with. "As to the question of the testamentary capacity of the testatrix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act. "In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein. "Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will herein. "Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate." 3 (Emphasis omitted.) On appeal, said Decision was reversed, and the petition for probate of decedents will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows: "Article 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions." library "Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature." library

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent. Thus, this appeal which is impressed with merit. Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the following cases: "(a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto." In the same vein, Article 839 of the New Civil Code reads: "Article 839: The will shall be disallowed in any of the following cases:chanrob1es virtual 1aw library (1) If the formalities required by law have not been complied with; (2 If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto." library These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedents last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedents. 6 In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous. We reiterate what we held in Abangan v. Abangan, 40 Phil. 476, 479 (1919), that: "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testators last will, must be disregarded."

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 8105 and 806 of the New Civil Code. In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus: "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed." (Emphasis supplied.) Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw v. Relova, 132 SCRA 237, 242 (1984), this Court held: "Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 8 (Emphasis omitted.) Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testators signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes. It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows: "Article 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688. "Article 688: Holographic wills may be executed only by persons of full age. "In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution. "If it should contain any erased, corrected, or interlined words, the testator must identify them over his

signature. "Foreigners may execute holographic wills in their own language." This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the same Code are essential to the probate of a holographic will. The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety.). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her fathers other heirs. IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.cralawnad SO ORDERED.

[G.R. No. 76464. February 29, 1988.] TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, Petitioners, v. COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, Respondents. SYLLABUS 1. CIVIL LAW; SUCCESSION; WILLS; REVOCATION THEREOF; PHYSICAL ACT OF DESTRUCTION; ANIMUS REVOCANDI, A NECESSARY ELEMENT. The physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. 2. REMEDIAL LAW; CIVIL ACTIONS; RES JUDICATA; ELEMENTS. For a judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action, identity of parties, of subject matter, and of cause of action. We do not find here the presence of all the enumerated requisites. 3. ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN CASE AT BAR. There is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Malotos will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will. After all, an action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which can not be properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Malotos will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained. This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the same parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private

respondents presently, Panfilo and Felino, both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the trial courts order and directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial courts decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners motion for reconsideration of the adverse decision proved to be of no avail, hence, this petition. For a better understanding of the controversy, a factual account would be a great help. On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunts estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial settlement of Adrianas estate. The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the end of the controversy, but, unfortunately, it had not. Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adrianas counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN (Testamento)," dated January 3, 1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor. Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the allowance of the will. When the trial court denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the trial court. 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the petitioners. Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The respondent court stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its finding on the facts that the document was not in the two safes in Adrianas residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latters possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even considered collectively, as sufficient bases for the conclusion that Adriana Malotos will had been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana. The provisions of the new Civil Code pertinent to the issue can be found in Article 830. Art. 830. No will shall be revoked except in the following cases: 1aw library (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills: or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adrianas maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned. The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of the wills revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the document burned was indeed Adrianas will. Guadalupe, we think, believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned document was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay. At this juncture, we reiterate that" (it) is an important matter of public interest that a purported will is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations . . ." 4 The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was brought about

by the petitioners failure to appeal timely from the order dated November 16, 1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners) motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow the last will and testament of the late Adriana Maloto. This is untenable. The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action, identity of parties, of subject matter, and of cause of action. 5 We do not find here the presence of all the enumerated requisites. For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Malotos will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will. 6 After all, an action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which can not be properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Malotos will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained. One last note. The private respondents point out that revocation could be inferred from the fact that" (a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties have been acquired after the execution of the will on January 3, 1940." 7 Suffice it to state here that as these additional matters raised by the private respondents are extraneous to this special proceeding, they could only be appropriately taken up after the will has been duly probated and a certificate of its allowance issued. WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana Malotos last will and testament. Costs against the private respondents. This Decision is IMMEDIATELY EXECUTORY. SO ORDERED.

[G.R. No. 17857. June 12, 1922. ] In re will of Josefa Zalamea y Abella, deceased. PEDRO UNSON, Petitioner-Appellee, v. ANTONIO ABELLA ET AL., opponents-appellants. SYLLABUS 1. WILLS; NON-PRODUCTION OF ONE ATTESTING WITNESS. Though the general rule is that, if opposition is presented to the probate of a will, all the attesting witnesses must be produced; nevertheless, there are exceptions to this rule, to wit: When one of the witnesses dead, or cannot be served with process of the court, or his reputation for truth is questioned, or he appears to be hostile to the cause of the parties seeking the probate of the will. In such cases the will may be admitted to probate, if upon the evidence actually introduced the court is satisfied of the due execution of the will, inasmuch as even if said witness had been produced and had testified against the application, the result would not have been changed, if the court was satisfied upon the evidence adduced that the will has been executed in the manner prescribed by the law. 2. ID.; INVENTORY MADE PART OF A WILL; ATTESTATION CLAUSE. When in a will reference is made to an inventory of the properties of the testator, which has thus been made a part of the will, if the will has an attestation clause that meets the requirements of the law, no other attestation clause is necessary for the said inventory, but that of the will be sufficient for the validity both of the will and the inventory. 3. ID.; PAGING IN ARABIC NUMERALS. Paging in inventory with Arabic numerals is in compliance with the spirit of the law, requiring that the paging of a will be made letters, and is just as valid as paging with letters A, B, C, etc., under the circumstances stated in the case of Aldaba v. Roque (43 phil 378). On July 19, 1918, Dona Josefa Zalamea y Abella, single, 60 years old, who was residing in the municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921, and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the Court of First Instance of Laguna on the 19th of January of the same year an application for the probate of the will and the issuance of the proper letters of administration in his favor. To said application an opposition was presented by Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not executed in conformity with the provisions of the law, inasmuch as it was not paged correlatively in letters; nor was there any attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other. Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents contained the true and last will of the deceased Josefa Zalamea. From the judgment of the court below, the contestants have appealed, and in their brief they assign three errors, which, in their opinion, justify the reversal of the judgment appealed from. The first error assigned by the appellants as committed by the court below is its finding to the effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with all the solemnities required by the law. The arguments advanced by appellants counsel in support of the first assignment of error tend to impeach the credibility of the witnesses for the proponent, especially that of Eugenio Zalamea. We have made a carefully

examination of the evidence, but have not found anything that would justify us in disturbing the finding of the court a quo. The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de Jesus, they did sign each and every page of the will and of the inventory in the presence of each other and of the testatrix, as the latter did likewise sign all the pages of the will and of the inventory in their presence. In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix, nor by the witnesses on the day of the execution of the will, that is, on the 19th of July, 1918, basing their contention on the testimony of Aurelio Palileo, who says that on one occasion Gonzalo Abaya told him that one of the pages of the will had not been signed by the witnesses, nor by the testatrix on the day of its execution. Palileos testimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileos testimony cannot prevail over that of the attesting witnesses, Gonzalo Abaya and Eugenio Zalamea. The appellants impeach the credibility of Eugenio Zalamea, for having made a sworn declaration before the justice of the peace of Santa Cruz, Laguna, before the trial of this case, to the effect that he was really one of the witnesses to the will in question, which fact was corroborated by himself at the trial. The appellants take Zalameas testimony in connection with the dismissal of a criminal case against a nephew of his, in whose success he was interested, and infer from this fact the partiality of his testimony. We deem this allegation of little importance to impeach the credibility of the witness Zalamea, especially because his testimony is corroborated by the other attesting witness, Gonzalo Abaya, and by attorney Luis Abaya, who had prepared the testament at the instance of the testatrix. The foregoing is sufficient for us to conclude that the first assignment of error made by the appellant is groundless. The appellants contend that the court below erred in admitting the will to probate notwithstanding the omission of the proponent to produce one of the attesting witnesses. At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the will, for there were reasonable grounds to believe that said witness was openly hostile to the proponent, inasmuch as since the announcement of the trial of the petition for the probate of the will, said witness has been in frequent communication with the contestants and their attorney, and has refused to hold any conference with the attorneys for the proponent. In reply to this, the attorney for the contestants, said to the court, "without discussing for the present whether or not in view of those facts (the facts mentioned by the attorneys for the petitioner), in the hypothesis that the same are proven, they are relieved from producing that witness, for while it is a matter not decided, it is a recognized rule that the fact that a witness is hostile does not justify a party to omit his testimony; without discussing this, I say, I move that said statement be stricken out, and if the proponent wants these facts to stand in the record, let him prove them." The court a quo ruled, saying, "there is no need." library To this ruling of the court, the attorney for the appellants did not take any exception. In the case of Avera v. Garcia and Rodriquez (42 Phil., 145), recently decided by this court, in deciding the question whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without producing or accounting for the absence of the other two, it was said; while it is undoubtedly true that an uncontested will may be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang v. Delfinado (34 Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court.

"In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith that probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial in order that he might produce all the attesting witnesses. "Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned, this court would probably be compelled to reverse this case on the ground that the execution of the will had not been proved by a sufficient number of attesting witnesses. "It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for the first time in this court. We believe this point is well taken, and the first assignment of error must be declared not to be well taken. This exact question has been decided by the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of practice should not be observed by us. "There are at least two reasons why the appellate tribunal are disinclined to permit certain questions to be raised for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance upon the point there presented and makes the appellate court in effect a court of first instance with reference to that point, unless the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance is placed, while they are engaged in other discussions more simulated than real. These considerations are, we think, decisive. "In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are constantly here considering aspects of cases and applying doctrines which have escaped that attention of all persons concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question upon appeal; and this is the more proper when the question relates to a defect which might have been cured in the Court of First Instance if attention had been called to it there. In the present case, if the appellant had raised this question in the lower court, either at the hearing or upon a motion for a new trial, that court would have had the power, and it would have been its duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to the will might be brought into court. But instead of thus calling the error to the attention of the court and his adversary, the point is first raised by the appellant in this court. We hold that this is too late. "Properly understood, the case of Cabang v. Delfinado, supra, contains nothing inconsistent with the ruling we now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both parties in that case were therefore fully apprised that the question of the number of witnesses

necessary to prove the will was in issue in the lower court."cralaw virtua1aw library In the case at bar, we do not think this question properly to have been raised at the trial, but in the memorandum submitted by the attorney for the appellants to the trial court, he contended that the will could not be admitted to probate because one of the witnesses to the will was not produced, and that the voluntary non-production of this witness raises a presumption against the pretension of the proponent. The trial court found that the evidence introduced by the proponent,. consisting of the testimony of the two attesting witnesses and the other witness who was present at the execution, and had charge of the preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As announced in Cabang v. Delfinado, supra, the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must be produced. But there are exceptions to this rule, for instance, when a witness is dead, or cannot be served with process of the court, or his reputation for truth has been questioned or he appears hostile to the cause of the proponent. In such cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will has been duly executed. Wherefore, we find that the non-production of the attesting witness, Pedro de Jesus, as accounted for by the attorney for the proponent at the trial, does not render void the decree of the court a quo, allowing the probate. But supposing that said witness, when cited, had testified adversely to the application, this would not by itself have change the result reached by the court a quo, for section 632 of the Code of Civil Procedure provides that a will can be admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the court is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the law. The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is made in Arabic numerals and not in letters. In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom of said will, the testatrix Josefa Zalamea says: "In witness whereof, I sign this will composed of ten folios including the page containing the signatures and the attestation of the witnesses; I have likewise signed the inventory attached to this will composed of ten folios in the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918."cralaw virtua1aw library And the attestation clause is as follows: "The foregoing will composed of ten folios including this one whereunto we have affixed our signatures, as well as the inventory of the properties of Dona Josefa Zalamea y Abella, was read to Dona Josefa Zalamea y Abella, and the latter affixed her name to name the last, and each and every page of this will and inventory composed of ten folios in our presence; and she declared this to be her last will and testament and at her request we have affixed hereunto our respective signatures in her presence and in the presence of each other as witnesses to the will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P. I. library In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires this solemnity for the validity of a will, and makes unnecessary any other attestation clause at the end of the inventory.

As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine announced in the case of Aldaba v. Roque (p. 378, ante), recently decided by this court. In that case the validity of the will was assailed on the ground that its folios were paged with the letters A, B, C, etc., instead of with he letters "one," "two," "three," etc. It was held that this way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one of these methods indicates the correlation of the pages and serves to prevent the abstraction of any of them. In the course of the decision, we said: "It might be said that the object of the law in requiring that the paging be made in letters is to make falsification more difficult, but it should be noted that since all the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to forge the signatures. And as in the present case there exists the guaranty of the authenticity of the testament, consisting in the signatures on the left margins of the testament and the paging thereof as declared in the attestation clause, the holding of this court in Abangan v. Abangan (40 Phil., 476), might as well be repeated: "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless, and frustrative of the testators last will, must be disregarded. "In that case the testament was written on one page, and the attestation clause on another. Neither one of these pages was numbered in any way, and it was held: In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged. "This means that, according to the particular case, the omission of paging does not necessarily render the testament invalid. "The law provides that the numbering of the pages should be in letters placed on the upper part of the sheet, but if the paging should be placed in the lower part, would the testament be void for this sole reason? We believe not. The law also provides that the testator and the witnesses must sign the left margin of each of the sheets of the testament; but if they should sign on the right margin, would this fact also annul the testament? Evidently not. This court has already held in Avera v. Garcia and Rodriguez (42 Phil., 145): "It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this court. "Still some details at times creep into legislative enactments which are so trivial that it would be absurd to suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of the testator and witnesses shall be written on the left margin of each page rather than on the right margin seems to be of this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible difference whether the names appear on the left or on the right margin, provided they are on one or the other. In Caraig v. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not

reported), this court declared a will void which was totally lacking in the signatures required to be written on its several pages; and in the case of Re Estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of each leaf (folio), but not in the margin of each page containing written matter. "We do not desire to intimate that the numbering in letters is a requisite of no importance. But since its principal object is to give the correlation of the pages, we hold that this object may be attained by writing one, two, three, etc., as well as by writing A, B, C, etc." library We see no reason why the same rule should not be applied where the paging is in Arabic numerals, instead of in letters, as in the inventory in question. So that, adhering to the view taken by this court in the case of Abangan v. Abangan, and followed in Aldaba v. Roque, with regard to the appreciation of the solemnities of a will, we find that the judgment appealed from should be, as is hereby, affirmed with the costs against the appellant. So ordered.