Forms of Wills:

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.

Suroza v. Honrado
Abangan v. Abangan
Gonzales v. Laurel
Matias v. Salud
Garcia v. Lacuesta
Yap Tua v. Yap CaKuan
Barut v. Cabacungan
Balonan v. Abellana
In re Will of Siason
Nera v. Rimando
Jaboneta v. Gustilo
Taboada v. Rosal
Icasiano v. Icasiano
Cagro v. Cagro
Cruz v. Villasor
Javellana v. Ledesma
Garcia v. Vasquez
Alvarado v. Gaviola
Caneda v. CA
Cuevas v. Achacoso
Dichoso v. Gorostiza
Merza v. Porras

(Short)
(Short)
(Short)

(Short)
(Short)
(Short)
(Short)

(Short)
(Short)
(Short)

(Short)
(Short)
(Short)

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal,
Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of
Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having
admitted to probate a will, which on its face is void because it is written in
English, a language not known to the illiterate testatrix, and which is
probably aforged will because she and the attesting witnesses did not
appear before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled
strands of human relationship:

In that connection, it should be noted that a woman named Arsenia de la

Cruz wanted also to be his guardian in another proceeding. Arsenia tried to
prove that Nenita was living separately from Agapito and that she (Nenita)
admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record
of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and
confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA
case). Agapito has been staying in a veteran's hospital in San Francisco or
Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few days
old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito)
and who was later delivered to Marcelina Salvador Suroza who brought her
up as a supposed daughter of Agapito and as her granddaughter (pp. 23-26,
Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She
stayed with Marcelina but was not legally adopted by Agapito. She married
Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently
a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec.
Proc. No. 7816). They were childless. They reared a boy named Agapito who
used the surname Suroza and who considered them as his parents as shown
in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R.
No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years
old when Mauro married Marcelina in 1923).

Marcelina supposedly executed a notarial will in Manila on July 23, 1973,

when she was 73 years old. That will which is in English was thumbmarked
by her. She was illiterate. Her letters in English to the Veterans
Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that
wig, Marcelina bequeathed all her estate to her supposed granddaughter
Marilyn.

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner

of the Federal Government. That explains why on her death she had
accumulated some cash in two banks.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon

City. At the time of her death, she was a resident of 7374 San Maximo Street,
Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that
place. She acquired the lot in 1966 (p. 134, Record of testate case).

Agapito and Nenita begot a child named Lilia who became a medical
technologist and went abroad. Agapito also became a soldier. He was
disabled and his wife Nenita was appointed as his guardian in 1953 when he
was declared an incompetent in Special Proceeding No. 1807 of the Court of
First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of

Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed
with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the

probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo
P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk
of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the deputy clerk of court are
not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administratrix. On the following day, April 1, Judge Honrado issued two
orders directing the Merchants Banking Corporation and the Bank of
America to allow Marina to withdraw the sum of P10,000 from the savings
accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon
Castro, the custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11,
1975, instructing a deputy sheriff to eject the occupants of the testatrix's
house, among whom was Nenita V. Suroza, and to place Marina in
possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding
for the settlement of Marcelina's estate. She and the other occupants of the
decedent's house filed on April 18 in the said proceeding a motion to set
aside the order of April 11 ejecting them. They alleged that the decedent's
son Agapito was the sole heir of the deceased, that he has a daughter named
Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's
daughter nor the decedent's granddaughter (pp. 52-68, Record of testate
case). Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons,
other than Marilyn, were claiming Marcelina's estate, he issued on April 23
an order probating her supposed will wherein Marilyn was the instituted
heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition for administration and

preliminary injunction". Nenita in that motion reiterated her allegation that

Marilyn was a stranger to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue influence employed by
Marina and Marilyn and that the thumbmarks of the testatrix were procured
by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because
of the preterition of Agapito and that Marina was not qualified to act as
executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of Marcelina, who swore that the alleged will was falsified (p.
109, Record).
Not content with her motion to set aside the ejectment order (filed on April
18) and her omnibus motion to set aside the proceedings (filed on April 24),
Nenita filed the next day, April 25, an opposition to the probate of the will
and a counter-petition for letters of administration. In that opposition,
Nenita assailed the due execution of the will and stated the names and
addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113121, Record). Nenita was not aware of the decree of probate dated April 23,
1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio,
Marcelina's niece, who swore that Marcelina never executed a win (pp. 124125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings
admitted that Marilyn was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and that Agapito was not
Marcelina's sonbut merely an anak-anakan who was not legally adopted (p.
143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counterpetition for the issuance of letters of administration because of the nonappearance of her counsel at the hearing. She moved for the
reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending

incidents, Nenita V. Suroza reiterated her contention that the alleged will is
void because Marcelina did not appear before the notary and because it is
written in English which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents
"raised" by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the wig, Nenita
"filed a case to annul" the probate proceedings (p. 332, Record). That case,
Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also
assigned to Judge Honrado. He dismissed it in his order of February 16, 1977
(pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had
been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed
in this Court, Nenita charged Judge Honrado with having probated the
fraudulent will of Marcelina. The complainant reiterated her contention that
the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in
which the win was written. (In the decree of probate Judge Honrado did not
make any finding that the will was written in a language known to the
testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that
the testatrix had a son named Agapito (the testatrix's supposed sole
compulsory and legal heir), who was preterited in the will, did not take into
account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and
informed him that the testatrix did not know the executrix Marina Paje, that
the beneficiary's real name is Marilyn Sy and that she was not the next of
kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing

Marina and her cohorts to withdraw from various banks the deposits
Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not
giving her access to the record of the probate case by alleging that it was
useless for Nenita to oppose the probate since Judge Honrado would not
change his decision. Nenita also said that Evangeline insinuated that if she
(Nenita) had ten thousand pesos, the case might be decided in her favor.
Evangeline allegedly advised Nenita to desist from claiming the properties
of the testatrix because she (Nenita) had no rights thereto and, should she
persist, she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the
allegations of the complaint. He merely pointed to the fact that Nenita did
not appeal from the decree of probate and that in a motion dated July 6,
1976 she asked for a thirty day period within which to vacate the house of
the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita
and that the latter did not mention Evangeline in her letter dated September
11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline)
prevented Nenita from having access to the record of the testamentary
proceeding. Evangeline was not the custodian of the record. Evangeline "
strongly, vehemently and flatly denied" Nenita's charge that she
(Evangeline) said that the sum of ten thousand pesos was needed in order
that Nenita could get a favorable decision. Evangeline also denied that she
has any knowledge of Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to attention of this
Court in the Court Administrator's memorandum of September 25, 1980.
The case was referred to Justice Juan A. Sison of the Court of Appeals for
investigation, report and recommendation. He submitted a report dated
October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge
Honrado a petition for certiorari and prohibition wherein she prayed that
the will, the decree of probate and all the proceedings in the probate case
be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who
notarized the will. He swore that the testatrix and the three attesting
witnesses did not appear before him and that he notarized the will "just to
accommodate a brother lawyer on the condition" that said lawyer would
bring to the notary the testatrix and the witnesses but the lawyer never
complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was
an appeal and her failure to do so did not entitle her to resort to the special
civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24,
1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a
motion to dismiss the administrative case for having allegedly become moot
and academic.
We hold that disciplinary action should be taken against respondent judge
for his improper disposition of the testate case which might have resulted in
a miscarriage of justice because the decedent's legal heirs and not the
instituted heiress in the void win should have inherited the decedent's
estate.
A judge may be criminally liable or knowingly rendering an unjust judgment
or interlocutory order or rendering a manifestly unjust judgment or
interlocutory order by reason of inexcusable negligence or ignorance (Arts.
204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first
instance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law).
Misconduct implies malice or a wrongful intent, not a mere error of
judgment. "For serious misconduct to exist, there must be reliable evidence
showing that the judicial acts complained of were corrupt or inspired by an

intention to violate the law, or were in persistent disregard of well-known

legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness.
A judge would be inexcusably negligent if he failed to observe in the
performance of his duties that diligence, prudence and circumspection
which the law requires in the rendition of any public service (In re Climaco,
Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was
written in English and was thumbmarked by an obviously illiterate testatrix,
could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a
language "understood and known" to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language". (p. 16, Record of testate case). That could
only mean that the will was written in a language not known to the illiterate
testatrix and, therefore, it is void because of the mandatory provision of
article 804 of the Civil Code that every will must be executed in a language
or dialect known to the testator. Thus, a will written in English, which was
not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso,
52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and
notarial acknowledgment where Marcelina Salvador Suroza is repeatedly
referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not
only the anomaly as to the language of the will but also that there was
something wrong in instituting the supposed granddaughter as sole heiress
and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of
court, respondent judge could have noticed that the notary was not
presented as a witness.

In spite of the absence of an opposition, respondent judge should have

personally conducted the hearing on the probate of the will so that he could
have ascertained whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty to
be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S.
Suroza, a fine equivalent to his salary for one month is imposed on
respondent judge (his compulsory retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic
because she is no longer employed in the judiciary. Since September 1, 1980
she has been assistant city fiscal of Surigao City. She is beyond this Court's
disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI
November 21, 1980, 101 SCRA 225).
SO ORDERED.

[G.R. No. 13431. November 12, 1919. ] In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee, v. ANASTACIA ABANGAN ET
AL., opponents-appellants. SYLLABUS
1. WILLS; ATTESTATION. 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. 2. ID.; ID; TESTATORS SIGNATURE.
The testators signature is not necessary in the attestation clause because
this, as its name implies, appertains only to the witnesses and not to the
testator.
3. ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION. The circumstance
appearing in the will itself that same was executed in the city of Cebu and in

the dialect of this locality where the testatrix was a neighbor is enough, in
the absence of any proof to the contrary, to presume that she knew this
dialect in which her will is written.
DECISION
AVANCEA, J. :
On September 19, 1917, the Court of First Instance of Cebu admitted to
probate Ana Abangans will executed July, 1916. From this decision the
opponents appealed.
Said document, duly probated as Ana Abangans will, consists of two sheets,
the first of which contains all of the disposition of the testatrix, duly signed
at the bottom by Martin Montalban (in the name and under the direction of
the testatrix) and by three witnesses. The following sheet contains only the
attestation clause duly signed at the bottom by the three instrumental
witnesses. Neither of these sheets is signed on the left margin by the
testatrix and the three witnesses, nor numbered by letters; and these
omissions, according to appellants contention, are defects whereby the
probate of the will should have been denied. We are of the opinion that the
will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on
the left margin by the testator and three witnesses in the presence of each
other, Act No. 2645 (which is the one applicable in the case) evidently has
for its object (referring to the body of the will itself) to avoid the substitution
of any of said sheets, thereby changing the testators dispositions. But when
these dispositions are wholly written on only one sheet signed at the bottom
by the testator and three witnesses (as the instant case), their signatures on
the left margin of said sheet would be completely purposeless. In requiring
this signature on the margin, the statute took into consideration,
undoubtedly, the case of a will written on several sheets and must have
referred to the sheets which the testator and the witnesses do not have to
sign at the bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed twice. We
cannot attribute to the statute such an intention. As these signatures must
be written by the testator and the witnesses in the presence of each other,
it appears that, if the signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin would be unnecessary; and
if they do not guaranty, same signatures, affixed on another part of same
sheet, would add nothing. We cannot assume that the statute regards of
such importance the place where the testator and the witnesses must sign

on the sheet that it would consider that their signatures written on the
bottom do not guaranty the authenticity of the sheet but, if repeated on the
margin, give sufficient security. In requiring that each and every page of a
will must be numbered correlatively in letters placed on the upper part of
the sheet, it is likewise clear that the object of Act No. 2645 is to know
whether any sheet of the will has been removed. But, when all the
dispositive parts of a will are written .on one sheet only, the object of the
statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore,
without considering whether or not this clause is an essential part of the
will, we hold that in the one accompanying the will in question, the
signatures of the testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not required by the
statute. Moreover, referring specially to the signature of the testatrix, we
can add that same is not necessary in the attestation clause because this, as
its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that 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. 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.
As another ground for this appeal, it is alleged the records do not show that
the testatrix knew the dialect in which the will is written. But the
circumstance appearing in the will itself that same was executed in the city
of Cebu and in the dialect of this locality where the testatrix was a neighbor

is enough, in the absence of any proof to the contrary, to presume that she
knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby
affirmed with costs against the appellants. So ordered.

G.R. No. 19079, January 15, 1923

PRIMITIVO GONZALEZ Y LAUREL, APPLICANT AND APPELLEE, VS. JOVITA

LAUREL Y TAPIA, OPPONENT AND APPELLANT.

DECISION

ROMUALDEZ, J.:

By an order dated December 16, 1921, the Court of First Instance of

Batangas allowed the document, Exhibit A, to probate as the last will and
testament of the deceased Maria Tapia, thus granting the petition of
Primitivo L. Gonzalez and overruling the opposition presented by Jovita
Laurel.
Jovita Laurel now appeals to this court from that ruling of the court below,
alleging that that court erred:

"1. In holding that Exhibit A, the supposed will of the deceased Maria Tapia
y Castillo, was executed with the solemnities prescribed by the law,
notwithstanding that there was no proof of the dialect known by the said

deceased and of the fact that it was the same in which said Exhibit A was
written.
"2. In not holding that the signatures of Maria Tapia appearing in said Exhibit
A had been obtained through deceit, surprise, fraud, and in an illegal and
improper manner.
"3. In not finding that said Exhibit A was obtained through unlawful pressure,
influence and machinations of the applicant, Primitivo L. Gonzalez, one of
the legatees, in connivance with Attorney Modesto Castillo.
"4. In not finding that the deceased Maria Tapia was physically and mentally
incapacitated at the time she is said to have executed Exhibit A.
"5. In declaring said Exhibit A valid and authentic and allowing it to probate
as the will and testament of the deceased Maria Tapia y Castillo."
Concerning the first error assigned, it appears that the deceased Maria Tapia
was a resident of the Province of Batangas, a Tagalog region, where said
deceased had had real properties for several years. It also appears that she
requested Modesto Castillo to draw her will in Tagalog. From the record
taken as a whole, a presumption arises that said Maria Tapia knew the
Tagalog dialect, which presumption is now conclusive for not having been
overthrown nor rebutted.
The three following errors have reference to the question whether or not
the testatrix acted voluntarily and with full knowledge in executing and
signing the will. The preponderance of evidence in this respect is that said
document was executed and signed by Maria Tapia voluntarily and with full
knowledge, without fraud, deceit, surprise, or undue influence or
machinations of anybody, she being then mentally capacitated and free.
Such is the fact established by the evidence, which we have carefully
examined.

said answer is "Yes, sir," according to the transcript of the appellant, it is

"Certainly, that is not true," according to the official transcript of the
stenographic notes attached to the record. But it is to be noted that at the
continuation of the hearing held on a subsequent date, in which said witness
Primitivo L. Gonzalez was examined on this contradiction, he said in the
course of the rebuttal evidence of the applicant: "No, sir. I did not answer in
that way. I did not take her hand to make her sign. I did not by any means
answer that question to that effect. I very well remember that fact, because
it affects much the probate of the will." (Fols. 56 and 57 of transcript and
documentary evidence.)
It appearing from the record that the document Exhibit A is the will of the
deceased Maria Tapia, executed with all the formalities and solemnities
required by the law, the trial court did not commit any error in admitting it
to probate.
For the purposes of this decision, we deem it unnecessary to pass upon the
question raised by the appellee as to whether or not this appeal was
perfected within the time fixed by the law.
The order appealed from is affirmed, with the costs against the appellant.
So ordered.

G.R. No. L-10907

June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.
J. Gonzales Orense for petitioner.

In connection with the evidence, our attention was called to an

irreconcilable conflict between the transcript of an answer of the witness
Primitivo L. Gonzalez, presented by the appellant as "Annex 1" to his motion
filed in this court (fol. 16 of the Rollo), and the official transcript, in that while

Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of

Hon. Primitivo L. Gonzales, as Judge of the Court of First Instance of Cavite,
in connection with Special Proceedings No. 5213 of said court, entitled
"Testate Estate of the Deceased Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a
petition for the probate of a document purporting to be the last will and
testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at
the age of 92 years. The heir to the entire estate of the deceased except
the properties bequeathed to her other niece and nephews, namely,
Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael
Matias is, pursuant to said instrument, Aurea Matias, likewise, appointed
therein as executrix thereof, without bond. Basilia Salud, a first cousin of the
deceased, opposed the probate of her alleged will, and, after appropriate
proceedings, the court, presided over by respondent Judge, issued an order,
dated February 8, 1956, sustaining said opposition and denying the petition
for probate. Subsequently, Aurea Matias brought the matter on appeal to
this Court (G.R. No. L-10751), where it is now pending decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal
of Horacio Rodriguez, as special administrator of the estate of the deceased,
and the appointment, in his stead of Ramon Plata. The motion was set for
hearing on February 23, 1956, on which date the court postponed the
hearing to February 27, 1956. Although notified of this order, Rodriguez did
not appear on the date last mentioned. Instead, he filed an urgent motion
praying for additional time within which to answer the charges preferred
against him by Basilia Salud and for another postponement of said hearing.
This motion was not granted, and Basilia Salud introduced evidence in
support of said charges, whereupon respondent Judge by an order, dated

February 27, 1956, found Rodriguez guilty of abuse of authority and gross
negligence, and, accordingly, relieved him as special administrator of the
estate of the deceased and appointed Basilia Salud as special administratrix
thereof, to "be assisted and advised by her niece, Miss Victorina Salud," who
"shall always act as aide, interpreter and adviser of Basilia Salud." Said order,
likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . .
. who is hereby appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956,
be set aside and that she be appointed special co-administratrix, jointly with
Horacio Rodriguez, upon the ground that Basilia Salud is over eighty (80)
years of age, totally blind and physically incapacitated to perform the duties
of said office, and that said movant is the universal heiress of the deceased
and the person appointed by the latter as executrix of her alleged will. This
motion was denied in an order dated March 10, 1956, which maintained
"the appointment of the three above named persons" Basilia Salud,
Ramon Plata and Victorina Salud "for the management of the estate of
the late Gabina Raquel pending final decision on the probate of the alleged
will of said decedent." However, on March 17, 1956, Basilia Salud tendered
her resignation as special administratrix by reason of physical disability, due
to old age, and recommended the appointment, in her place, of Victorina
Salud. Before any action could be taken thereon, or on March 21, 1956,
Aurea Matias sought a reconsideration of said order of March 10, 1956.
Moreover, on March 24, 1956, she expressed her conformity to said
resignation, but objected to the appointment, in lieu of Basilia Salud, of
Victorina Salud, on account of her antagonism to said Aurea Matias she
(Victorina Salud) having been the principal and most interested witness for
the opposition to the probate of the alleged will of the deceased and
proposed that the administration of her estate be entrusted to the
Philippine National Bank, the Monte de Piedad, the Bank of the Philippine
Islands, or any other similar institution authorized by law therefor, should
the court be reluctant to appoint the movant as special administratrix of said
estate. This motion for reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and

Victorina Salud requested authority to collect the rents due, or which may
be due, to the estate of the deceased and to collect all the produce of her
lands, which was granted on June 23, 1956. On June 27, 1956, said
respondents filed another motion praying for permission to sell the palay of
the deceased then deposited in different rice mills in the province of Cavite,
which respondent judge granted on June 10, 1956. Later on, or on July 10,
1956, petitioner instituted the present action against Judge Gonzales, and
Victorina Salud and Ramon Plata, for the purpose of annulling the above
mentioned orders of respondent Judge, upon the ground that the same had
been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction.

In support of this pretense, it is argued that petitioner should have

preference in the choice of special administratrix of the estate of the
decedent, she (petitioner) being the universal heiress to said estate and, the
executrix appointed in the alleged will of the deceased, that until its final
disallowance which has not, as yet, taken place she has a special interest
in said estate, which must be protected by giving representation thereto in
the management of said estate; that, apart from denying her any such
representation, the management was given to persons partial to her main
opponent, namely, Basilia Salud, inasmuch as Victorina Salud is allied to her
and Ramon Plata is a very close friend of one of her (Basilia Salud's)
attorneys; that Basilia Salud was made special administratrix despite her
obvious unfitness for said office, she being over eighty (80) years of age and
blind; that said disability is borne out by the fact that on March 17, 1956,
Basilia Salud resigned as special administratrix upon such ground; that the
Rules of Court do not permit the appointment of more than one special
administrator; that Horacio Rodriguez was removed without giving
petitioner a chance to be heard in connection therewith; and that Ramon
Plata and Victorina Salud were authorized to collect the rents due to the

deceased and the produce of her lands, as well to sell her palay, without
previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted
with the scope of his jurisdiction and without any abuse of discretion; that
petitioner can not validly claim any special interest in the estate of the
deceased, because the probate of the alleged will and testament of the
latter upon which petitioner relies has been denied; that Horacio
Rodriguez was duly notified of the proceedings for his removal; and that
Victorina Salud and Ramon Plata have not done anything that would warrant
their removal.

Upon a review of the record, we find ourselves unable to sanction fully the
acts of respondent Judge, for the following reasons:

1. Although Horacio Rodriguez had notice of the hearing of the motion for
his removal, dated February 17, 1956, the record shows that petitioner
herein received copy of said motion of February 24, 1956, or the date after
that set for the hearing thereof. Again, notice of the order of respondent
Judge, dated February 23, 1956, postponing said hearing to February 27,
1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal
of Horacio Rodriguez, and the appointment of Ramon Plata, as special
administrator of said estate. Petitioner had, therefore, no notice that her
main opponent, Basilia Salud, and the latter's principal witness, Victorina
Salud, would be considered for the management of said. As a consequence,
said petitioner had no opportunity to object to the appointment of Basilia
Salud as special administratrix, and of Victorina Salud, as her assistant and

adviser, and the order of February 27, 1956, to this effect, denied due
process to said petitioner.
3. Said order was issued with evident knowledge of the physical disability of
Basilia Salud. Otherwise respondent Judge would not have directed that she
"be assisted and advised by her niece Victorina Salud," and that the latter
"shall always act as aide, interpreter and adviser of Basilia Salud."
4. Thus, respondent Judge, in effect, appointed three (3) special
administrators Basilia Salud, Victorina Salud and Ramon Plata. Indeed, in
the order of March 10, 1956, respondent Judge maintained "the
appointment of the three (3) above-named persons for the management of
the estate of the late Gabina Raquel."
5. Soon after the institution of said Special Proceedings No. 5213, an issue
arose between Aurea Matias and Basilia Salud regarding the person to be
appointed special administrator of the estate of the deceased. The former
proposed Horacio Rodriguez, whereas the latter urged the appointment of
Victorina Salud. By an order dated August 11, 1952, the Court, then presided
over by Hon. Jose Bernabe, Judge, decided the matter in favor of Horacio
Rodriguez and against Victorina Salud, upon the ground that, unlike the
latter, who, as a pharmacist and employee in the Santa Isabel Hospital,
resides In the City of Manila, the former, a practicing lawyer and a former
public prosecutor, and later, mayor of the City of Cavite, is a resident
thereof. In other words, the order of resident thereof. In other words, the
order of respondent Judge of February 27, 1956, removing Rodriguez and
appointing Victorina Salud to the management of the estate, amounted to
a reversal of the aforementioned order of Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel
was denied by respondent Judge, the order to this effect is not, as yet, final
and executory. It is pending review on appeal taken by Aurea Matias. The
probate of said alleged will being still within realm of legal possibility, Aurea
Matias has as the universal heir and executrix designated in said
instrument a special interest to protect during the pendency of said
appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this Court
held that a widow, designated as executrix in the alleged will and testament

of her deceased husband, the probate of which had denied in an order

pending appeal, "has . . . the same beneficial interest after the decision of
the court disapproving the will, which is now pending appeal, because the
decision is not yet final and may be reversed by the appellate court."
7. The record shows that there are, at least two (2) factions among the heirs
of the deceased, namely, one, represented by the petitioner, and another,
to which Basilia Salud and Victorina Salud belong. Inasmuch as the lower
court had deemed it best to appoint more than one special administrator,
justice and equity demands that both factions be represented in the
management of the estate of the deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one
special administrator may be appointed to administrator temporarily" the
estate of the deceased, must be considered in the light of the facts obtaining
in said case. The lower court appointed therein one special administrator for
some properties forming part of said estate, and a special administratrix for
other properties thereof. Thus, there were two (2) separate and
independent special administrators. In the case at bar there is only one (1)
special administration, the powers of which shall be exercised jointly by two
special co-administrators. In short, the Roxas case is not squarely in point.
Moreover, there are authorities in support of the power of courts to appoint
several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs.
Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs.
Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby annulled and set aside. The
lower court should re-hear the matter of removal of Horacio Rodriguez and
appointment of special administrators, after due notice to all parties
concerned, for action in conformity with the views expressed herein, with
costs against respondents Victorina Salud and Ramon Plata. It is so ordered.

G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will
of Antero Mercado dated January 3, 1943. The will is written in the Ilocano
dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing
testament of Antero Mercado was signed by himself and also by us below
his name and of this attestation clause and that of the left margin of the
three pages thereof. Page three the continuation of this attestation clause;
this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of
three pages and all them were signed in the presence of the testator and
witnesses, and the witnesses in the presence of the testator and all and each
and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January,
one thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote
the name of Antero Mercado, followed below by "A reugo del testator" and
the name of Florentino Javier. Antero Mercado is alleged to have written a
cross immediately after his name. The Court of Appeals, reversing the
judgement of the Court of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the will was signed on all the left
margins of the three pages and at the end of the will by Atty. Florentino
Javier at the express request of the testator in the presence of the testator
and each and every one of the witnesses; (2) to certify that after the signing
of the name of the testator by Atty. Javier at the former's request said
testator has written a cross at the end of his name and on the left margin of
the three pages of which the will consists and at the end thereof; (3) to
certify that the three witnesses signed the will in all the pages thereon in the
presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state
that Antero Mercado caused Atty. Florentino Javier to write the testator's
name under his express direction, as required by section 618 of the Code of
Civil Procedure. The herein petitioner (who is appealing by way of certiorari
from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name
is a sufficient signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a signature as a
thumbmark, the latter having been held sufficient by this Court in the cases
of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he signed his
name. After mature reflection, we are not prepared to liken the mere sign
of the cross to a thumbmark, and the reason is obvious. The cross cannot
and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a

sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence
of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the
petitioner. So ordered.

G.R. No. 6845

September 1, 1914

YAP TUA, petitioner-appellee,

vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.

Chicote and Miranda for appellants.

O'Brien and DeWitt for appellee.
JOHNSON, J.:
It appears from the record that on the 23d day of August, 1909, one Perfecto
Gabriel, representing the petitioner, Yap Tua, presented a petition in the
Court of First Instance of the city of Manila, asking that the will of Tomasa
Elizaga Yap Caong be admitted to probate, as the last will and testament of
Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga
Yap Caong died in the city of Manila on the 11th day of August, 1909.
Accompanying said petition and attached thereto was the alleged will of the
deceased. It appears that the will was signed by the deceased, as well as
Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Said petition, after due notice was given, was brought on for hearing on the
18th day of September, 1909. Timoteo Paez declared that he was 48 years
of age; that he had known the said Tomasa Elizaga Yap Caong; that she had
died on the 11th day of August, 1909; that before her death she had
executed a last will and testament; that he was present at the time of the
execution of the same; that he had signed the will as a witness; that Anselmo
Zacarias and Severo Tabora had also signed said will as witnesses and that
they had signed the will in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of
age; that he knew Tomasa Elizaga Yap Caong during her lifetime; that she
died on the 11th day of August, 1909, in the city of Manila; that before her
death she had executed a last will and testament; that he was present at the
time said last will was executed; that there were also present Timoteo Paez
and Severo Tabora and a person called Anselmo; that the said Tomasa
Elizaga Yap Caong signed the will in the presence of the witnesses; that he
had seen her sign the will with his own eyes; that the witnesses had signed
the will in the presence of the said Tomasa Elizaga Yap Caong and in the
presence of each other; that the said Tomasa Elizaga Yap Caong signed the
will voluntarily, and in his judgment, she was in the possession of her
faculties; that there were no threats or intimidation used to induce her to
sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition
presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge,
on the 29th day of September, 1909, ordered that the last will and
testament of Tomasa Elizaga Yap Caong be allowed and admitted to
probate. The will was attached to the record and marked Exhibit A. The court
further ordered that one Yap Tua be appointed as executor of the will, upon
the giving of a bond, the amount of which was to be fixed later.

From the record it appears that no further proceedings were had until the
28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared and

presented a petition, alleging that they were interested in the matters of the
said will and desired to intervene and asked that a guardian ad litem be
appointed to represent them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as guardian
ad litem of said parties. Gabriel La O accepted said appointment, took the
oath of office and entered upon the performance of his duties as guardian
ad litem of said parties. On the 2d day of March, 1910, the said Gabriel La O
appeared in court and presented a motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to
probate by order of the court on the 29th day of September, 1909, was null,
for the following reasons:
(a)
Because the same had not been authorized nor signed by the
witnesses as the law prescribes.
(b)
Because at the time of the execution of the will, the said Tomasa
Elizaga Yap Caong was not then mentally capacitated to execute the same,
due to her sickness.
(c)
Because her signature to the will had been obtained through fraud
and illegal influence upon the part of persons who were to receive a benefit
from the same, and because the said Tomasa Elizaga Yap Caong had no
intention of executing the same.
Second. That before the execution of the said will, which they alleged to be
null, the said Tomasa Elizaga Yap Caong had executed another will, with all
the formalities required by law, upon the 6th day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even
though they had been negligent in presenting their opposition to the
legalization of the will, said negligence was excusable, on account of their
age.
Upon the foregoing facts the court was requested to annul and set aside the
order of the 29th day of September, 1909, and to grant to said minors an
opportunity to present new proof relating to the due execution of said will.

Said petition was based upon the provisions of section 113 of the Code of
Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their
petition for a new trial, attached to said petition the alleged will of August
6, 1909, of the said Tomasa Elizaga Yap Caong, and the affidavits of Severo
Tabora, Clotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for a
rehearing, the Honorable A. S. Crossfield, judge, granted said motion and
ordered that the rehearing should take place upon the 18th day of March,
1910, and directed that notice should be given to the petitioners of said
rehearing and to all other persons interested in the will. At the rehearing a
number of witnesses were examined.
It will be remembered that one of the grounds upon which the new trial was
requested was that the deceased, Tomasa Elizaga Yap Caong, had not signed
the will (Exhibit A) of the 11th of August, 1909; that in support of that
allegation, the protestants, during the rehearing, presented a witness called
Tomas Puzon. Puzon testified that he was a professor and an expert in
handwriting, and upon being shown the will (of August 11, 1909) Exhibit A,
testified that the name and surname on Exhibit A, in his judgment were
written by two different hands, though the given name is the same as that
upon Exhibit 1 (the will of August 6, 1909), because he found in the name
"Tomasa" on Exhibit A a similarity in the tracing to the "Tomasa" in Exhibit
1; that comparing the surname on Exhibit A with the surname on Exhibit 1
he found that the character of the writing was thoroughly distinguished and
different by the tracing and by the direction of the letters in the said two
exhibits; that from his experience and observation he believed that the
name "Tomasa" and "Yap Caong," appearing in the signature on Exhibit A
were written by different person.
Puzon, being cross-examined with reference to his capacity as an expert in
handwriting, testified that while he was a student in the Ateneo de Manila,
he had studied penmanship; that he could not tell exactly when that was,
except that he had concluded his course in the year 1882; that since that

time he had been a telegraph operator for seventeen years and that he had
acted as an expert in hand- writing in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified that
he had drawn the will of the 6th of August, 1909, at the request of Tomasa
Elizaga Yap Caong; that it was drawn in accordance with her request and
under her directions; that she had signed it; that the same had been signed
by three witnesses in her presence and in the presence of each other; that
the will was written in her house; that she was sick and was lying in her bed,
but that she sat up to sign the will; that she signed the will with great
difficulty; that she was signed in her right mind.
The said Severo Tabora was also called as a witness again during the
rehearing. He testified that he knew Tomasa Elizaga Yap Caong during her
lifetime; that she was dead; that his signature as a witness to Exhibit A (the
will of August 11, 1909) was placed there by him; that the deceased, Tomasa
Elizaga Yap Caong, became familiar with the contents of the will because she
signed it before he (the witness) did; that he did not know whether anybody
there told her to sign the will or not; that he signed two bills; that he did not
know La O; that he did not believe that Tomasa had signed the will (Exhibit
A) before he arrived at the house; that he was not sure that he had seen
Tomasa Elizaga Yap Caong sign Exhibit A because there were many people
and there was a screen at the door and he could not see; that he was called
a a witness to sign the second will and was told by the people there that it
was the same as the first; that the will (Exhibit A) was on a table, far from
the patient, in the house but outside the room where the patient was; that
the will was signed by Paez and himself; that Anselmo Zacarias was there;
that he was not sure whether Anselmo Zacarias signed the will or not; that
he was not sure whether Tomasa Elizaga Yap Caong could see the table on
which the will was written at the time it was signed or not; that there were
many people in the house; that he remembered the names of Pedro and
Lorenzo; that he could not remember the names of any others; that the will
remained on the table after he signed it; that after he signed the will he went
to the room where Tomasa was lying; that the will was left on the table
outside; that Tomasa was very ill; that he heard the people asking Tomasa
to sign the will after he was (the witness) had signed it; that he saw Paez sign

the will, that he could not remember whether Anselmo Zacarias had signed
the will, because immediately after he and Paez signed it, he left because he
was hungry; that the place where the table was located was in the same
house, on the floor, about two steps down from the floor on which Tomasa
was.
Rufino R. Papa, was called as a witness for the purpose of supporting the
allegation that Tomasa Elizaga Yap Caong was mentally incapacitated to
make the will dated August 11, 1909 (Exhibit A). Papa declared that he was
a physician; that he knew Tomasa Elizaga Yap Caong; that he had treated
her in the month of August; that he visited her first on the 8th day of August;
that he visited her again on the 9th and 10th days of August; that on the first
visit he found the sick woman completely weak very weak from her
sickness, in the third stage of tuberculosis; that she was lying in bed; that on
the first visit he found her with but little sense, the second day also, and on
the third day she had lost all her intelligence; that she died on the 11th of
August; tat he was requested to issue the death certificate; that when he
asked her (Tomasa) whether she was feeling any pain or anything of that
kind, she did not answer at all; that she was in a condition of stupor, induced,
as he believed, by the stage of uraemia from which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was also
called as a witnesses during the rehearing. He testified that he had known
Tomasa Elizaga Yap Caong since he was a child; that Tomasa was dead; that
he had written the will exhibit A; that it was all in his writing except the last
part, which was written by Carlos Sobaco; that he had written the will Exhibit
A at the request of the uncle of Tomasa; that Lorenzo, the brother of the
deceased, was the one who had instructed him as to the terms of the will ;
that the deceased had not spoken to him concerning the terms of the will;
that the will was written in the dining room of the residence of the deceased;
that Tomasa was in another room different from that in which the will was
written; that the will was not written in the presence of Tomasa; that he
signed the will as a witness in the room where Tomasa was lying; that the
other witnesses signed the will in the same room that when he went into
the room where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo
had the will in his hands; that when Lorenzo came to the bed he showed the

will to his sister (Tomasa) and requested her to sign it; that she was lying
stretched out on the bed and two women, who were taking care of her,
helped her to sit up, supporting her by lacing their hands at her back; that
when she started to write her name, he withdrew from the bed on account
of the best inside the room; when he came back again to the sick bed the
will was signed and was again in the hands of Lorenzo; that he did not see
Tomasa sign the will because he withdrew from the room; that he did not
know whether Tomasa had been informed of the contents of the will or not;
he supposed she must have read it because Lorenzo turned the will over to
her; that when Lorenzo asked her to sign the will, he did not know what she
said he could not hear her voice; that he did not know whether the sick
woman was him sign the will or not; that he believed that Tomasa died the
next day after the will had been signed; that the other two witnesses,
Timoteo Paez and Severo Tabora, had signed the will in the room with the
sick woman; that he saw them sign the will and that they saw him sign it;
that he was not sure whether the testatrix could have seen them at the time
they signed the will or not; that there was a screen before the bed; that he
did not think that Lorenzo had been giving instructions as to the contents of
the will; that about ten or fifteen minutes elapsed from the time Lorenzo
handed the will to Tomasa before she started to sign it; that the pen with
which she signed the will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew
Tomasa Elizaga Yap Caong and that she was dead; that she had made two
wills; that the first one was written by La O and the second by Zacarias; that
he was present at the time Zacarias wrote the second one; that he was
present when the second will was taken to Tomasa for signature; that
Lorenzo had told Tomasa that the second will was exactly like the first; that
Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there; that
Zacarias was not there; that Paez and Tabora were there; that he had told
Tomasa that the second will was exactly like the first.

During the rehearing Cornelia Serrano and Pedro Francisco were also
examined as witnesses. There is nothing in their testimony, however, which
in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she was
19 years of age; that she knew Tomasa Elizaga Yap Caong during her lifetime;
that she lived in the house of Tomasa during the last week of her illness; that
Tomasa had made two wills; that she was present when the second one was
executed; that a lawyer had drawn the will in the dining room and after it
had been drawn and everything finished , it was taken to where Doa
Tomasa was, for her signature; that it was taken to her by Anselmo Zacarias;
that she was present at the time Tomasa signed the will that there were
many other people present also; that she did not see Timoteo Paez there;
that she saw Severo Tabora; that Anselmo Zacarias was present; that she did
not hear Clotilde Mariano ask Tomasa to sign the will; that she did not hear
Lorenzo say to Tomasa that the second will was the same sa the first; that
Tomasa asked her to help her to sit up and to put a pillow to her back when
Zacarias gave her some paper or document and asked her to sign it; that she
saw Tomasa take hold of the pen and try to sign it but she did not see the
place she signed the document, for the reason that she left the room; that
she saw Tomasa sign the document but did not see on what place on the
document she signed; and that a notary public came the next morning; that
Tomasa was able to move about in the bed; that she had seen Tomasa in the
act of starting to write her signature when she told her to get her some
water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he
knew Tomasa Elizaga Yap Caong and knew that she had made a will; that he
saw the will at the time it was written; that he saw Tomasa sign it on her
head; that he did not hear Lorenzo ask Tomasa to sign the will; that Lorenzo
had handed the will to Tomasa to sign; that he saw the witnesses sign the
will on a table near the bed; that the table was outside the curtain or screen
and near the entrance to the room where Tomasa was lying.

Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew

Anselmo Zacarias and that Zacarias wrote the will of Tomasa Elizaga Yap
Caong; that Tomasa had given him instructions; that Tomasa had said that
she sign the will; that the will was on a table near the bed of Tomasa; that
Tomasa, from where she was lying in the bed, could seethe table where the
witnesses had signed the will.

During the rehearing certain other witnesses were also examined; in our
opinion, however, it is necessary to quote from them for the reason that
their testimony in no way affects the preponderance of proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an
extended opinion, reached the conclusion that the last will and testament
of Tomasa Elizaga Yap Caong, which was attached to the record and marked
Exhibit A was the last will and testament of the said Tomasa Elizaga Yap
Caong and admitted it to probate and ordered that the administrator
therefore appointed should continue as such administrator. From that order
the protestants appealed to this court, and made the following assignments
of error:
I.
The court erred in declaring that the will, Exhibit A, was executed
by the deceased Tomasa Yap Caong, without the intervention of any
external influence on the part of other persons.

II.
The court erred in declaring that the testator had clear knowledge
and knew what she was doing at the time of signing the will.

III.
The court erred in declaring that the signature of the deceased
Tomasa Yap Caong in the first will, Exhibit 1, is identical with that which
appears in the second will, Exhibit A.

IV.
The court erred in declaring that the will, Exhibit A, was executed
in accordance with the law.

With reference to the first assignment of error, to wit, that undue influence
was brought to bear upon Tomasa Elizaga Yap Caong in the execution of her
will of August 11th, 1909 (Exhibit A), the lower court found that no undue
influence had been exercised over the mind of the said Tomasa Elizaga Yap
Caong. While it is true that some of the witnesses testified that the brother
of Tomasa, one Lorenzo, had attempted to unduly influence her mind in the
execution of he will, upon the other hand, there were several witnesses who
testified that Lorenzo did not attempt, at the time of the execution of the
will, to influence her mind in any way. The lower court having had an
opportunity to see, to hear, and to note the witnesses during their
examination reached the conclusion that a preponderance of the evidence
showed that no undue influence had been used. we find no good reason in
the record for reversing his conclusions upon that question.
With reference to the second assignment of error to wit, that Tomasa Elizaga
Yap Caong was not of sound mind and memory at the time of the execution
of the will, we find the same conflict in the declarations of the witnesses
which we found with reference to the undue influence. While the testimony
of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga
Yap Caong, yet, nevertheless, his testimony related to a time perhaps
twenty-four hours before the execution of the will in question (Exhibit A).
Several witnesses testified that at the time the will was presented to her for
her signature, she was of sound mind and memory and asked for a pen and
ink and kept the will in her possession for ten or fifteen minutes and finally
signed it. The lower court found that there was a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga Yap Caong was of sound mind
and memory and in the possession of her faculties at the time she signed
this will. In view of the conflict in the testimony of the witnesses and the
finding of the lower court, we do not feel justified in reversing his
conclusions upon that question.

With reference to the third assignment of error, to wit, that the lower court
committed an error in declaring that the signature of Tomasa Elizaga Yap
Caong, on her first will (August 6, 1909, Exhibit 1), is identical with that which
appears in the second will (August 11, 1909, Exhibit A), it may be said:

First. That whether or not Tomasa Elizaga Yap Caong executed the will of
August 6, 1909 (Exhibit 1), was not the question presented to the court. The
question presented was whether or not she had duly executed the will of
August 11, 1909 (Exhibit A).

Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong
did execute the will of August 6, 1909. Several witnesses testified to that
fact. The mere fact, however, that she executed a former will is no proof
that she did not execute a later will. She had a perfect right, by will, to
dispose of her property, in accordance with the provisions of law, up to the
very last of moment her life. She had a perfect right to change, alter, modify
or revoke any and all of her former wills and to make a new one. Neither will
the fact that the new will fails to expressly revoke all former wills, in any way
sustain the charge that she did not make the new will.

Third. In said third assignment of error there is involved in the statement

that "The signature of Tomasa Elizaga Yap Caong, in her first will (Exhibit 1)
was not identical with that which appears in her second will (Exhibit A)" the
inference that she had not signed the second will and all the argument of
the appellants relating to said third assignment of error is based upon the
alleged fact that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several
witnesses testified that they saw her write the name "Tomasa." One of the
witnesses testified that she had written her full name. We are of the opinion,
and we think the law sustains our conclusion, that if Tomasa Elizaga Yap
Caong signed any portion of her name tot he will, with the intention to sign
the same, that the will amount to a signature. It has been held time and time

again that one who makes a will may sign the same by using a mark, the
name having been written by others. If writing a mark simply upon a will is
sufficient indication of the intention of the person to make and execute a
will, then certainly the writing of a portion or all of her name ought to be
accepted as a clear indication of her intention to execute the will. (Re Goods
of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad.
and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218;
Cozzen's Will, 61 Penn., 196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs.
Ryder, 84 Penn., 217.)

We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L.

R. A., 353), and cited by the appellees, which was known as "Knox's Appeal."
In this case one Harriett S. Knox died very suddenly on the 17th of October,
1888, at the residence of her father. After her death a paper was found in
her room, wholly in her handwriting, written with a lead pencil, upon three
sides of an ordinary folded sheet of note paper and bearing the signature
simply of "Harriett." In this paper the deceased attempted to make certain
disposition of her property. The will was presented for probate. The
probation was opposed upon the ground that the same did not contain the
signature of the deceased. That was the only question presented to the
court, whether the signature, in the form above indicated, was a sufficient
signature to constitute said paper the last will and testament of Harriett S.
Knox. It was admitted that the entire paper was in the handwriting of the
deceased. In deciding that question, Justice Mitchell said:

The precise case of a signature by the first name only, does not appear to
have arisen either in England or the United States; but the principle on which
the decisions already referred to were based, especially those in regard to
signing by initials only, are equally applicable to the present case, and
additional force is given to them by the decisions as to what constitutes a
binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478;
Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls,
etc. Co. vs. Goddard, 14 How. (U. S.), 446.)

The man who cannot write and who is obliged to make his mark simply
therefor, upon the will, is held to "sign" as effectually as if he had written his
initials or his full name. It would seem to be sufficient, under the law
requiring a signature by the person making a will, to make his mark, to place
his initials or all or any part of his name thereon. In the present case we think
the proof shows, by a large preponderance, that Tomasa Elizaga Yap Caong,
if she did not sign her full name, did at least sign her given name "Tomasa,"
and that is sufficient to satisfy the statute.

With reference to the fourth assignment of error, it may be said that the
argument which was preceded is sufficient to answer it also.

During the trial of the cause the protestants made a strong effort to show
that Tomasa Elizaga Yap Caong did not sign her name in the presence of the
witnesses and that they did not sign their names in their presence nor in the
presence of each other. Upon that question there is considerable conflict of
proof. An effort was made to show that the will was signed by the witnesses
in one room and by Tomasa in another. A plan of the room or rooms in which
the will was signed was presented as proof and it was shown that there was
but one room; that one part of the room was one or two steps below the
floor of the other; that the table on which the witnesses signed the will was
located upon the lower floor of the room. It was also shown that from the
bed in which Tomasa was lying, it was possible for her to see the table on
which the witnesses signed the will. While the rule is absolute that one who
makes a will must sign the same in the presence of the witnesses and that
the witnesses must sign in the presence of each other, as well as in the
presence of the one making the will, yet, nevertheless, the actual seeing of
the signatures made is not necessary. It is sufficient if the signatures are
made where it is possible for each of the necessary parties, if they desire to
see, may see the signatures placed upon the will.

In cases like the present where there is so much conflict in the proof, it is
very difficult for the courts to reach conclusions that are absolutely free
from doubt. Great weight must be given by appellate courts who do not see
or hear the witnesses, to the conclusions of the trial courts who had that
opportunity.

Upon a full consideration of the record, we find that a preponderance of the

proof shows that Tomasa Elizaga Yap Caong did execute, freely and
voluntarily, while she was in the right use of all her faculties, the will dated
August 11, 1909 (Exhibit A). Therefore the judgment of the lower court
admitting said will to probate is hereby affirmed with costs.

G.R. No. L-6285

February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs.
Pedro Barut and another, No. 6284,1 just decided by this court, wherein
there was an application for the probate of an alleged last will and testament
of the same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate
the last will and testament of Maria Salomon, deceased. It is alleged in the
petition of the probate that Maria Salomon died on the 7th day of
November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and
testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda,
Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to
the execution thereof. By the terms of said will Pedro Barut received the
larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect.
Its translation into Spanish appears at page 11. After disposing of her
property the testatrix revoked all former wills by her made. She also stated
in said will that being unable to read or write, the same had been read to
her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed
Severo Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the
relatives of the deceased on various grounds, among them that a later will
had been executed by the deceased. The will referred to as being a later will
is the one involved in case No. 6284 already referred to. Proceeding for the
probate of this later will were pending at the time. The evidence of the
proponents and of the opponents was taken by the court in both cases for
the purpose of considering them together.

In the case before us the learned probate court found that the will was not
entitled to probate upon the sole ground that the handwriting of the person
who it is alleged signed the name of the testatrix to the will for and on her
behalf looked more like the handwriting of one of the other witnesses to the
will than that of the person whose handwriting it was alleged to be. We do
not believe that the mere dissimilarity in writing thus mentioned by the
court is sufficient to overcome the uncontradicted testimony of all the

witnesses to the will that the signature of the testatrix was written by Severo
Agayan at her request and in her presence and in the presence of all the
witnesses to the will. It is immaterial who writes the name of the testatrix
provided it is written at her request and in her presence and in the presence
of all the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the
law relating to the execution of a will it is necessary that the person who
signs the name of the testatrix must afterwards sign his own name; and that,
in view of the fact that, in the case at bar, the name signed below that of the
testatrix as the person who signed her name, being, from its appearance,
not the same handwriting as that constituting the name of the testatrix, the
will is accordingly invalid, such fact indicating that the person who signed
the name of the testatrix failed to sign his own. We do not believe that this
contention can be sustained. Section 618 of the Code of Civil Procedure
reads as follows:

No will, except as provided in the preceding section, shall be valid to pass

any estate, real or personal, nor charge or effect the same, unless it be in
writing and signed by the testator, or by the testator's name written by some
other person in his presence, and by his expenses direction, and attested
and subscribed by three or more credible witnesses in the presence of the
testator and of each. . . .

This is the important part of the section under the terms of which the court
holds that the person who signs the name of the testator for him must also
sign his own name The remainder of the section reads:

The attestation shall state the fact that the testator signed the will, or caused
it to be signed by some other person, at his express direction, in the

presence of three witnesses, and that they attested and subscribed it in his
presence and in the presence of each other. But the absence of such form
of attestation shall not render the will invalid if it is proven that the will was
in fact signed and attested as in this section provided.

From these provisions it is entirely clear that, with respect to the validity of
the will, it is unimportant whether the person who writes the name of the
testatrix signs his own or not. The important thing is that it clearly appears
that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her
presence and in the presence of each other. That is all the statute requires.
It may be wise as a practical matter that the one who signs the testator's
name signs also his own; but that it is not essential to the validity of the will.
Whether one parson or another signed the name of the testatrix in this case
is absolutely unimportant so far as the validity of her will is concerned. The
plain wording of the statute shows that the requirement laid down by the
trial court, if it did lay down, is absolutely unnecessary under the law; and
the reasons underlying the provisions of the statute relating to the
execution of wills do not in any sense require such a provision. From the
standpoint of language it is an impossibility to draw from the words of the
law the inference that the persons who signs the name of the testator must
sign his own name also. The law requires only three witnesses to a will, not
four.

Nor is such requirement found in any other branch of the law. The name of
a person who is unable to write may be signed by another by express
direction to any instrument known to the law. There is no necessity
whatever, so far as the validity of the instrument is concerned, for the
person who writes the name of the principal in the document to sign his own
name also. As a matter of policy it may be wise that he do so inasmuch as it
would give such intimation as would enable a person proving the document
to demonstrate more readily the execution by the principal. But as a matter
of essential validity of the document, it is unnecessary. The main thing to be

established in the execution of the will is the signature of the testator. If that
signature is proved, whether it be written by himself or by another at his
request, it is none the less valid, and the fact of such signature can be proved
as perfectly and as completely when the person signing for the principal
omits to sign his own name as it can when he actually signs. To hold a will
invalid for the lack of the signature of the person signing the name of the
principal is, in the particular case, a complete abrogation of the law of wills,
as it rejects and destroys a will which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the
doctrine which we have herein laid down. They are Ex parte Santiago (4 Phil.
Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs. Concepcion
(5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the
case last above stated gives an indication of what all of cases are and the
question involved in each one of them. It says:

The testatrix was not able to sign it for her. Instead of writing her name he
wrote his own upon the will. Held, That the will was not duly executed.

All of the above cases are precisely of this character. Every one of them was
a case in which the person who signed the will for the testator wrote his own
name to the will instead of writing that of the testator, so that the testator's
name nowhere appeared attached to the will as the one who executed it.
The case of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner: "John Doe, by the
testator, Richard Roe;" or in this form: "By the testator. John Doe, Richard
Roe." All this must be written by the witness signing at the request of the
testator.

The only question for decision in that case, as we have before stated, was
presented by the fact that the person who was authorized to sign the name
of the testator to the will actually failed to sign such name but instead signed
his own thereto. The decision in that case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants

in this case have set forth no reason whatever why the will involved in the
present litigation should not be probated. The due and legal execution of
the will by the testatrix is clearly established by the proofs in this case. Upon
the facts, therefore, the will must be probated. As to the defense of a
subsequent will, that is resolved in case No. 6284 of which we have already
spoken. We there held that said later will not the will of the deceased.

The judgment of the probate court must be and is hereby reversed and that
court is directed to enter an order in the usual form probating the will
involved in this litigation and to proceed with such probate in accordance
with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

The undersigned agrees and admits that section 618 of the Code of Civil
Procedure does not expressly require that, when the testator or testatrix is
unable or does not know how to sign, the person who, in the presence and
under the express direction of either of them, writes in the name of the said
testator or testatrix must also sign his own name thereto, it being sufficient
for the validity of the will that the said person so requested to sign the
testator or testatrix write the name of either in his own handwriting.

Since this court began to decide cases with regard to the form, conditions
and validity of wills executed in accordance with the provisions of the Code
of Civil Procedure, never has the specific point just above mentioned been
brought into question. Now for the first time is affirmed in the majority
opinion, written by the learned and distinguished Hon. Justice Moreland,
that, not being required by the said code, the signature of the name of the
person who, at the request of the testator or testatrix, writes the name of
either of the latter to the will executed, is not necessary.

Various and considerable in number have been the decisions rendered by

this court in which, as will be seen further on, upon applying the said section
618 of Code of Civil Procedure and requiring its observance in cases where
the testator or testatrix is unable or does not know how to sign his or her
name, expressly prescribed the practical method of complying with the
provisions of the law on the subject. Among these decisions several were
written by various justices of this court, some of whom are no longer on this
bench, as they have ceased to hold such position.

Separate Opinions

TORRES, J., concurring:

Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1

concerning the probate of a will, reads as follows:

Wills, authentication of . Where a will is not signed by a testator but by

some other person in his presence and by his direction, such other person
should affix the name of the testator thereto, and it is not sufficient that he
sign his own name for and instead of the name of the testator.

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the

matter of the probate of a will, states:

wrote the name and surname of the testator who, stating that the
instrument executed by him contained his last will, put the sign of the cross
between his said name and surname, all of which details are set forth in a
note which the witnesses forthwith subscribed in the presence of the
testator and of each other, said will may be probated.

1. Wills, requisites of; Civil Code, article repealed. Article 695 of the Civil
Procedure; consequently where a testator is unable to sign his name, the
person signing at his request must write at the bottom of the will the full
name of the testator in the latter's presence, and by his express direction,
and then sign his own name in full.

When the essential requisites of section 618 of the Code of Civil Procedure
for the execution and validity of a will have been complied with, the fact that
the witness who was requested to sign the name of the testator, omitted to
state the words 'by request of .......... the testator,' when writing with his
own hand the name and surname of the said testator, and the fact that said
witness subscribed his name together with the other witnesses and not
below the name of the testator, does not constitute a defect nor invalidate
the said will.

In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3
the following statements appear:

The following statement appears in the syllabus of case No. 4132, in the
matter of the will of Maria Siason:5

Wills; inability to sign; signature by another. The testatrix was not able to
sign her name to the will, and she requested another person to sign it for
her. Held, That the will was not duly executed. (Following Ex parte Arcenas
et al., No. 1708, August 24, 1905; Ex parte Arcenas et al., No. 1708, August
24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)

The recital of the name of the testator as written below the will at his
request serves as a signature by a third person.

Moreover among the grounds given as a basis for this same decision, the
following appears:

The following syllabus precedes decision No. 3907:4

Execution of wills. Where it appears in a will that the testator has stated
that by reason of his inability to sign his name he requested one of the three
witnesses present to do so, and that as a matter of fact, the said witness

In sustaining this form of signature, this court does not intend to qualify the
decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above
quoted, or in Abaya vs. Zalamero. In the Arcenas case the court pointed out
the correct formula for a signature which ought to be followed, but did not
mean to exclude any other for substantially equivalent.

In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following
appears:

The testatrix was unable to sign her will with her own hand and requested
another person to sign for her in her presence. This the latter did, first
writing the name of the testatrix and signing his own name below: Held, That
the signature of the testatrix so affixed is sufficient and a will thus executed
is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)

The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been
made subsequently, of another name before that of the testator when such
name may be treated as nonexistent without affecting its validity.

It is true that in none of the decisions above quoted was the rule established
that the person who, at the request of the testator or testatrix, signed the
latter's or the former's name and surname to the will must affix his own
signature; but it no less true that, in prescribing the method in which the
provisions of the said section 618 to be complied with, it was stated that, in
order that a will so executed might be admitted to probate, it was an
indispensable requisite that the person requested to sign in place of the
testator or testatrix, should write the latter's or the former's name and
surname at the foot of the will in the presence and under the direction of
either, as the case might be, and should afterwards sign the instrument with
his own name and surname.

The statement that the person who writes the name and surname of the
testator or testatrix at the foot of the will should likewise affix his own
signature thereto, name and surname, though it be considered to be neither
a rule nor a requisite necessary to follow for the admission of the will to
probate, yet it is unquestionable that, in inserting this last above-mentioned
detail in the aforesaid decisions, it was deemed to be a complement and
integral part of the required conditions for the fulfillment of the provisions
of the law.

Among the conclusions contained in this last decision the following is found:

Although the said words "For Simplicia de los Santos" be considered as

inserted subsequently, which we neither affirm nor deny, because a specific
determination either way is unnecessary, in our opinion the signature for
the testatrix placed outside of the body of the will contains the name of the
testatrix as if she signed the will, and also the signature of the witness who,
at her request, wrote the name of the testatrix and signed for her, affirming
the truth of this fact, attested by the other witnesses then present. And this
fully complies with the provisions of section 618 of the Act.

It is undisputable that the latter does not require the said subscription and
signature of the person requested to affix to the will the name of the
testator or testatrix who is not able to sign; but by stating in the decisions
hereinabove quoted that the name and surname of the said person should
be affixed by him, no act prohibited by law was recommended or suggested,
nor may such a detail be understood to be contrary or opposed to the plain
provisions thereof.

In the preceding decision itself, it is recognized to be convenient and even

prudent to require that the person requested to write the name of the

testator or testatrix in the will also sign the instrument with his own name
and surname. This statement induces us to believe that, in behalf of the
inhabitants of this country and for sake of an upright administration of
justice, it should be maintained that such a signature must appear in the will,
since no harm could accrue to anyone thereby and, on the contrary, it would
serve as a guarantee of the certainty of the act performed and also might
eliminate some possible cause of controversy between the interested
parties.

The undersigned feels it his duty to admit that, though convinced of the
complete repeal of article 695 of the Civil Code and, while he conceded that,
in the examination and qualification of a will for the purpose of its probate,
one has but to abide by the provisions of said section 618 of the Code of Civil
Procedure, the sole law applicable in the matter, yet, perhaps imbued with
the strongly impelled by a traditional conception of the laws which he has
known since youth, relative to the form of execution of testaments, he
believed it to be a vary natural and common sense requisite that the
signature, with his own name and surname, of the person requested to write
in the will the name and surname of the testator or testatrix should form a
part of the provisions of the aforementioned section 618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the

signature of the person before referred to a requisite deemed to be
convenient and prudent in the majority opinion formed a part of the
provisions of the law, since the latter contains nothing that prohibits it. The
aforementioned different decisions were drawn up in the form in which they
appear, and signed without dissent by all the justices of the court on various
dates. None of them hesitated to sign the decisions, notwithstanding that it
was expressly held therein that the person above mentioned should, besides
writing in the will the name and surname of the testator or testatrix, also
sign the said instrument with his own name and surname.

Without being understood to criticize the provision contained in the said

section 618 of the Code of Civil Procedure it will not be superfluous to
mention that the system adopted in this section is the same as was in vogue
under the former laws that governed in these Islands, with respect to
witnesses who were not able or did not know how to sign their testimony
given in criminal or civil cases, in which event any person at all might write
the name and surname of the witness who was unable or did not know how
to sign, at the foot of his deposition, where a cross was then drawn, and,
this done, it was considered that the instrument had been signed by the
witness, though it is true that all these formalities were performed before
the judge and the clerk or secretary of the court, which thereupon certified
that such procedure was had in accordance with the law.

The difference is that in the will, pursuant to section 618 of the Code of Civil
Procedure, the person who writes the name and surname of the testator or
testatrix does so by the order and express direction of the one or of the
other, and this fact must be recorded in the will; but in the matter of the
signature of a deposition, the witness, who could not or did not know how
to sign, did not need to designate anyone to write the deponent's name and
surname, and in practice the witness merely made a cross beside his name
and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of

previous statutes, among them those of the Civil Code, the person or
witness requested by the testator or testatrix who was not able or did not
know how to sign, authenticated the will by signing it with his own name
and surname, preceded by the words "at the request of the testator or
testatrix." Paragraph 2 of article 695 of the Civil Code contains the following
provisions bearing on the subject:

Should the testator declare that he does not know how, or is not able to
sign, one of the attesting witnesses or another person shall do so for him at
his request, the notary certifying thereto. This shall be done if any one of the
witnesses cannot sign.
So that, prior to the enforcement in this country in 1901 of the Code of Civil
procedure prescribed by the old laws with respect to the signing of a will by
a testator or testatrix who did not know how or who could not sign,
consisted in that the person appointed and requested by the testator or
testatrix to sign in his or her stead, such fact being recorded in the will,
merely affixed at the bottom of the will and after the words "at the request
of the testator," his own name, surname and paragraph.
It is not at all strange that the attorneys of this country, imbued with and
inspired by these legal provisions, which it may said, are traditional to them
in the ideas they have formed of the existing laws in the matter of procedure
in compliance therewith as regards the execution and signing of a will,
should have believed that, after the name and surname of the testator or
testatrix had been written at the foot of the will, the person who signed the
instrument in the manner mentioned should likewise sign the same with his
own name and surname.
If in various decisions it has been indicated that the person who, under the
express direction of the testator or testatrix, wrote the latter's or the
former's name and surname, should also sign the will with his own name
and surname, and since this suggestion is not opposed or contrary to the
law, the undersigned is of opinion that it ought not to be modified or
amended, but that, on the contrary, it should be maintained as a requisite
established by the jurisprudence of this court, inasmuch as such a requisite
is not contrary to law, to public order, or to good custom, is in consonance
with a tradition of this country, does not prejudice the testator nor those
interested in an inheritance, and, on the contrary, constitutes another
guarantee of the truth and authenticity of the letters with which the name
and surname of the testator of testatrix are written, in accordance with his
or her desire as expressed in the will.

Even though the requisites referred to were not recognized in jurisprudence

and were unsupported by any legal doctrine whatever, yet, since it is in
harmony with the juridical usages and customs observed in this country, it
ought, in the humble opinion of the writer, to be maintained for the benefit
of the inhabitants of the Islands and for the sake of a good administration of
justice, because it is not a question of a dangerous innovation or of one
prejudicial to the public good, but a matter of the observance of a
convenient, if not a necessary detail, introduced by the jurisprudence of the
courts and which in the present case has filed a vacancy left by the positive
written law.
The foregoing considerations, which perhaps have not the support of better
premises, but in the opinion of the undersigned, are conducive to the
realization of the purposes of justice, have impelled him to believe that the
proposition should be enforced that the witness requested or invited by the
testator or testatrix to write his or her name to the will, should also
subscribed the instrument by signing thereto his own name and surname;
and therefore, with the proper finding in this sense, and reversal of the
judgment appealed from, that the court below should be ordered to
proceed with the probate of the will of the decedent, Maria Salomon, in
accordance with the law.

G.R. No. L-15153

August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.

LABARADOR, J.:

Appeal from a decision of the Court of First Instance of Zamboanga City

admitting to probate the will of one Anacleta Abellana. The case was
originally appealed to the Court of Appeals where the following assignment
of error is made:
The appellants respectfully submit that the Trial Court erred in holding that
the supposed testament, Exh. "A", was signed in accordance with law; and
in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said court
has certified the case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is
sought to be probated, is written in the Spanish language and consists of
two (2) typewritten pages (pages 4 and 5 of the record) double space. The
first page is signed by Juan Bello and under his name appears typewritten
"Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero
20, 1951, Ciudad de Zamboanga', and on the second page appears the
signature of three (3) instrumental witnesses Blas Sebastian, Faustino
Macaso and Rafael Ignacio, at the bottom of which appears the signature of
T. de los Santos and below his signature is his official designation as the
notary public who notarized the said testament. On the first page on the left
margin of the said instrument also appear the signatures of the instrumental
witnesses. On the second page, which is the last page of said last Will and
Testament, also appears the signature of the three (3) instrumental
witnesses and on that second page on the left margin appears the signature
of Juan Bello under whose name appears handwritten the following phrase,
"Por la Testadora Anacleta Abellana'. The will is duly acknowledged before
Notary Public Attorney Timoteo de los Santos. (Emphasis supplied)

The appeal squarely presents the following issue: Does the signature of Dr.
Juan A. Abello above the typewritten statement "Por la Testadora Anacleta
Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law
prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
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 witness in the presence of the testator
and of one another. (Emphasis supplied.)
The clause "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," is practically the same as the provisions of Section
618 of the Code of Civil Procedure (Act No. 190) which reads as follows:
No will, except as provided in the preceding section shall be valid to pass any
estate, real or personal, nor charge or affect the same, unless it be in writing
and signed by the testator, 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 each other. . . . (Emphasis supplied).
Note that the old law as well as the new require that the testator himself
sign the will, or if he cannot do so, the testator's name must be written by
some other person in his presence and by his express direction. Applying
this provision this Court said in the case of Ex Parte Pedro Arcenas, et al.,
Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of Civil
Procedure that where the testator does not know how, or is unable, to sign,
it will not be sufficient that one of the attesting witnesses signs the will at
the testator's request, the notary certifying thereto as provided in Article
695 of the Civil Code, which, in this respect, was modified by section 618
above referred to, but it is necessary that the testator's name be written by

the person signing in his stead in the place where he could have signed if he
knew how or was able to do so, and this in the testator's presence and by
his express direction; so that a will signed in a manner different than that
prescribed by law shall not be valid and will not be allowed to be probated.

WHEREFORE, the decision appealed from is hereby set aside and the
petition for the probate of the will denied. With costs against petitioner.

Where a testator does not know how, or is unable for any reason, to sign
the will himself, it shall be signed in the following manner:

G.R. No. L-4132

John Doe by the testator, Richard Doe; or in this form: "By the testator, John
Doe, Richard Doe." All this must be written by the witness signing at the
request of the testator.
Therefore, under the law now in force, the witness Naval A. Vidal should
have written at the bottom of the will the full name of the testator and his
own name in one forms given above. He did not do so, however, and this is
failure to comply with the law is a substantial defect which affects the
validity of the will and precludes its allowance, notwithstanding the fact that
no one appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil.,
552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the
important thing is that it clearly appears that the name of the testatrix was
signed at her express direction; it is unimportant whether the person who
writes the name of the testatrix signs his own or not. Cases of the same
import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.
Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not
appear written under the will by said Abellana herself, or by Dr. Juan Abello.
There is, therefore, a failure to comply with the express requirement in the
law that the testator must himself sign the will, or that his name be affixed
thereto by some other person in his presence and by his express direction.
It appearing that the above provision of the law has not been complied with,
we are constrained to declare that the said will of the deceased Anacleta
Abellana may not be admitted to probate.

March 23, 1908

In the matter of the will of MARIA SIASON Y MADRID DE LEDESMA,

Probate proceedings.

Antonio Jayme for petitioner.

TRACEY, J.:

In this special proceedings for the legalization of a will, the Court of First
Instance refused probate on the ground that the instrument was not
subscribed by the witnesses in the presence of the testatrix and of each
other as required by section 618 of the Code of Civil Procedure.

The testatrix was ill and confined to her house, the execution of the will
taking place in the sala where she lay upon a sofa. The witnesses differ as to
whether the testatrix from where she lay could read what was written at the
table; and the first witness, after signing, went away from the table. These
two circumstances do not impair the validity of the execution of the will. The
witnesses being in the same apartment were all present and the statute
does not exact that either they are the testator shall read what has been
written. Had one of the witnesses left the room or placed himself so
remotely therein as to be cut off from actual participation in the
proceedings, then the subscription might not have taken place in his
presence within the meaning of the law.

A second objection is suggested on this appeal, that the signature to the

instrument is defective. It ends in this form:
At the request of Seora Maria Siason.
CATALINO GEVA.
T. SILVERIO. FRUCTUOSO G. MORIN.
RAFAEL ESPINOS.
Section 618 of the Code of Civil Procedure reads as follows:
Requisites of will. No will, except as provided in the preceding section,
shall be valid to pass any estate, real of personal, nor charge or effect the
same, unless it be in writing and signed by the testator, 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 each of the other. The attestation shall
estate the fact that the testator signed the will, or caused it to be signed by
some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in
the presence of each other. But the absence of such form of attestation shall
not render the will invalid if it is proven that the will was in fact signed and
attested as in this section provided.
The misunderstanding of this section arising from the incorrect rendering of
into Spanish in the official translation was corrected by what was said in the
decision of this court in Ex parte Arcenas (4 Phil. Rep., 700). Confusion has
also come out of the different wording of the two clauses of this section, the
one specifying the requisites of execution and the other those of the
attestation clause. The concluding sentence of the section, however, makes
clear that the former and not the latter is to control. Consequently the will
must be signed by the testator, or by the testator's name written by some
other person in his presence, and by his express direction," and the question
presented in this case is, Are the words "Seora Maria Siason" her name

written by some other person? They undoubtedly are her name, but
occurring as they do after the words "at request of," it is contended that
they form a part of the recital and not a signature, the only signature being
the names of the witnesses themselves. In Guison vs. Concepcion (5 Phil.
Rep., 551) it was held that there was no signature, although the attestation
clause which followed the will contained the name of the testatrix and was
thereafter signed by the witnesses. The distinction between that case and
the present one is one of the extreme nicety, and in the judgment of the
writer of this opinion should not be attempted. The majority of the court,
however, are of the opinion that the distinction is a tenable one inasmuch
as in the Concepcion will the name of the testatrix occurred only in the body
of the attestation clause, after the first signatures of the witnesses, whereas
in this will it immediately follows the testament itself and precedes the
names of the witnesses.
In sustaining this form of signature, this court does not intend to qualify the
decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above
quoted, or in Abaya vs. Zalamero.1 In the Arcenas case the court pointed out
the correct formula for a signature which ought to be followed, but did not
mean to exclude any other form substantially equivalent.
The decision of the court below is reversed, without costs, and that court is
directed to admit the instrument before it to probate as the last will of the
testatrix. So ordered.
Arellano, C.J., Torres and Mapa, JJ., concur.
Willard, J., concurs in the result.

Separate Opinions
CARSON, J., dissenting:
I dissent. This court has frequently held that a will should not be probated
unless there has been strict compliance in its execution with all the

"requisites of a will" as prescribed in section 618 of the Code of Civil

Procedure.
This section provides that the will must be signed by the testator or that it
must be signed by the testator's name written by some other person. I think
it is quite clear that the will in question was signed by the name of the
witness written at the request of the testatrix, but that it was not signed by
the name of the testatrix written by the witness.
We have heretofore called attention to mistakes in the translation into
Spanish of section 618 of the Code of Civil Procedure in the first official
translation. I think, however, that the translation in the majority opinion,
taken from the last official translation is also imperfect. It fails to convey
accurately the idea expressly set out in the English version, which requires
that where the testator does not sign his own name, the will must be signed
by the name of the testator attached by some other person. The Spanish
version seems to prescribe merely that in such cases the will shall bear
(lleve) the name of the testator written by some other person. The English
version clearly prescribes that the name of the testator shall be affixed to
the will as a signature and we have already decided that it is not sufficient
that the name of the testator appear in the attestation clause, because in
such cases the name is not affixed to the will as a signature. The name of the
testatrix was not affixed to the instrument under consideration as a
signature, and appears there merely in the recital of the fact that she
requested some one to sign for her.
The name of the testatrix appeared in the attestation clause at the end of
the will in the case of Guison vs. Concepcion (5 Phil. Rep., 551), and it was
placed there for precisely the same purpose as it appears in the will under
consideration; that is, in a recital of fact that the testatrix had requested
some one to attach her signature to the will. We declared in that case, that
the will could not be probated because the name of the testatrix was not
subscribed to the will in accordance with the provisions of section 618 of the
Code of Civil Procedure. I am unable to perceive the distinction between
that case and the case under consideration.

I recognize that in the case under consideration a holding that the name of
the testatrix is not signed to the will in the manner prescribed by law would
appear to defeat the intent of the testatrix, and to invalidate the instrument
for a failure to comply with a mere technical formality. But the same reasons
of public policy which dictated the provisions of law prescribing certain
requisites without which no will is valid, no matter how conclusive the proof
as to the fact that the rejected instrument contains the last will of the
deceased, and was prepared as such in absolute good faith, imposes upon
the courts the duty of scrutinizing every will submitted for probate to
ascertain whether there has been a strict compliance in its execution with
the requisites prescribed by law.

G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution
of the instrument propounded as a will in the court below, is whether one
of the subscribing witnesses was present in the small room where it was
executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was outside, some
eight or ten feet away, in a large room connecting with the smaller room by
a doorway, across which was hung a curtain which made it impossible for
one in the outside room to see the testator and the other subscribing
witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing

witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the
instrument, and this finding, of course, disposes of the appeal and
necessitates the affirmance of the decree admitting the document to
probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this
question of fact of vital importance in the determination of this case, as he
was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven,
would not be sufficient in itself to invalidate the execution of the will. But
we are unanimously of opinion that had this subscribing witness been
proven to have been in the outer room at the time when the testator and
the other subscribing witnesses attached their signatures to the instrument
in the inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this witness
to the testator and the other subscribing witnesses would necessarily have
been impeded by the curtain separating the inner from the outer one "at
the moment of inscription of each signature."

appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions.
The evidence in the case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document he was actually
and physically present and in such position with relation to Jaboneta that he
could see everything that took place by merely casting his eyes in the proper
direction and without any physical obstruction to prevent his doing so." And
the decision merely laid down the doctrine that the question whether the
testator and the subscribing witnesses to an alleged will sign the instrument
in the presence of each other does not depend upon proof of the fact that
their eyes were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely
casting the eyes in the proper direction they could have seen each other
sign. To extend the doctrine further would open the door to the possibility
of all manner of fraud, substitution, and the like, and would defeat the
purpose for which this particular condition is prescribed in the code as one
of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the
appellant.

In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution
of a will is not whether they actually saw each other sign, but whether they
might have been seen each other sign, had they chosen to do so, considering
their mental and physical condition and position with relation to each other
at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation
to each other at the moment of the subscription of each signature, must be
such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may
be held to have executed the instrument in the presence of each other if it

G.R. No. 1641

January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.

CARSON, J.:
In these proceedings probate was denied the last will and testament of
Macario Jaboneta, deceased, because the lower court was of the opinion
from the evidence adduced at the hearing that Julio Javellana, one of the
witnesses, did not attach his signature thereto in the presence of Isabelo
Jena, another of the witnesses, as required by the provisions of section 618
of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:

Q.

1641

Who first signed the will?

A.

1641

I signed it first, and afterwards Aniceto and the others.

Q.

1641

Who were those others to whom you have just referred?

A.
1641
After the witness Aniceto signed the will I left the house,
because I was in a hurry, and at the moment when I was leaving I saw Julio
Javellana with the pen in his hand in position ready to sign (en actitud de
firmar). I believe he signed, because he was at the table. . . .
Q.
1641 State positively whether Julio Javellana did or did not sign as
a witness to the will.
A.
1641 I can't say certainly, because as I was leaving the house I saw
Julio Javellana with the pen in his hand, in position ready to sign. I believe
he signed.
Q.

1641

Why do you believe Julio Javellana signed?

A.
1641 Because he had the pen in his hand, which was resting on the
paper, though I did not actually see him sign.
Q.

1641

Explain this contradictory statement.

A.
1641 After I signed I asked permission to leave, because I was in a
hurry, and while I was leaving Julio had already taken the pen in his hand, as
it appeared, for the purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand with the pen
resting on the will, moving it as if for the purpose of signing.
Q.
1641 State positively whether Julio moved his hand with the pen as
if for the purpose of signing, or whether he was signing
A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to
have been questioned by any of the parties to the proceedings, but the
court, nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the
following circumstances the document in question, which has been
presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered
that the document in question be written, and calling Julio Javellana, Aniceto
Jalbuena, and Isabelo Jena as witnesses, executed the said document as his
will. They were all together, and were in the room where Jaboneta was, and
were present when he signed the document, Isabelo Jena signing afterwards
as a witness, at his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then signed as a witness in the
presence of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave,
took his hat and left the room. As he was leaving the house Julio Javellana
took the pen in his hand and put himself in position to sign the will as a
witness, but did not sign in the presence of Isabelo Jena; but nevertheless,
after Jena had left the room the said Julio Javellana signed as a witness in
the presence of the testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that
the signature of Javellana was not signed in the presence of Jena, in
compliance with the provisions of section 618 of the Code of Civil Procedure.

The fact that Jena was still in the room when he saw Javellana moving his
hand and pen in the act of affixing his signature to the will, taken together
with the testimony of the remaining witnesses which shows that Javellana
did in fact there and then sign his name to the will, convinces us that the
signature was affixed in the presence of Jena. The fact that he was in the act
of leaving, and that his back was turned while a portion of the name of the
witness was being written, is of no importance. He, with the other witnesses
and the testator, had assembled for the purpose of executing the testament,
and were together in the same room for that purpose, and at the moment
when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Javellana that he
could see everything which took place by merely casting his eyes in the
proper direction, and without any physical obstruction to prevent his doing
so, therefore we are of opinion that the document was in fact signed before
he finally left the room.

proven in these proceedings we are of opinion that the statutory requisites

as to the execution of the instrument were complied with, and that the
lower court erred in denying probate to the will on the ground stated in the
ruling appealed from.

The purpose of a statutory requirement that the witness sign in the presence
of the testator is said to be that the testator may have ocular evidence of
the identity of the instrument subscribed by the witness and himself, and
the generally accepted tests of presence are vision and mental
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there
cited.)

G.R. No. L-36033 November 5, 1982

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient
if the witnesses are together for the purpose of witnessing the execution of
the will, and in a position to actually see the testator write, if they choose to
do so; and there are many cases which lay down the rule that the true test
of vision is not whether the testator actually saw the witness sign, but
whether he might have seen him sign, considering his mental and physical
condition and position at the time of the subscription. (Spoonemore vs.
Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as
between the testator and the witnesses are equally applicable in
determining whether the witnesses signed the instrument in the presence
of each other, as required by the statute, and applying them to the facts

We are of opinion from the evidence of record that the instrument

propounded in these proceedings was satisfactorily proven to be the last will
and testament of Macario Jaboneta, deceased, and that it should therefore
be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation
of costs, and after twenty days the record will be returned to the court form
whence it came, where the proper orders will be entered in conformance
herewith. So ordered.

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF

DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern
Leyte, (Branch III, Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance
of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In
the Matter of the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner", which denied the probate of the
will, the motion for reconsideration and the motion for appointment of a
special administrator.

In the petition for probate filed with the respondent court, the petitioner
attached the alleged last will and testament of the late Dorotea Perez.
Written in the Cebuano-Visayan dialect, the will consists of two pages. The
first page contains the entire testamentary dispositions and is signed at the
end or bottom of the page by the testatrix alone and at the left hand margin
by the three (3) instrumental witnesses. The second page which contains the
attestation clause and the acknowledgment is signed at the end of the
attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the
requirement of publication, the trial court commissioned the branch clerk of
court to receive the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due
execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the
questioned order denying the probate of the will of Dorotea Perez for want
of a formality in its execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with their corresponding

addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex parte praying for a thirty-day period within
which to deliberate on any step to be taken as a result of the disallowance
of the will. He also asked that the ten-day period required by the court to
submit the names of intestate heirs with their addresses be held in
abeyance.

The petitioner filed a motion for reconsideration of the order denying the
probate of the will. However, the motion together with the previous
manifestation and/or motion could not be acted upon by the Honorable
Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The
said motions or incidents were still pending resolution when respondent
Judge Avelino S. Rosal assumed the position of presiding judge of the
respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special

administrator.

Subsequently, the new Judge denied the motion for reconsideration as well
as the manifestation and/or motion filed ex parte. In the same order of
denial, the motion for the appointment of special administrator was likewise
denied because of the petitioner's failure to comply with the order requiring
him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code
require that the testatrix and all the three instrumental and attesting
witnesses sign at the end of the will and in the presence of the testatrix and
of one another?

Article 805 of the Civil Code provides:

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 respondent Judge interprets the above-quoted provision of law to

require that, for a notarial will to be valid, it is not enough that only the
testatrix signs at the "end" but an the three subscribing witnesses must also
sign at the same place or at the end, in the presence of the testatrix and of
one another because the attesting witnesses to a will attest not merely the
will itself but also the signature of the testator. It is not sufficient compliance
to sign the page, where the end of the will is found, at the left hand margin
of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code
does not make it a condition precedent or a matter of absolute necessity for
the extrinsic validity of the wig that the signatures of the subscribing
witnesses should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be absurd that the
legislature intended to place so heavy an import on the space or particular
location where the signatures are to be found as long as this space or
particular location wherein the signatures are found is consistent with good
faith and the honest frailties of human nature.

We find the petition meritorious.

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 lacier witnesses
and signed the will and 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 the witnesses, it shall be interpreted to them.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed
or signed at its end by the testator himself or by the testator's name written
by another 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.

It must be noted that the law uses the terms attested and subscribed
Attestation consists in witnessing the testator's execution of the will in order

to see and take note mentally that those things are, done which the statute
requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose of Identification of
such paper as the will which was executed by the testator. (Ragsdale v. Hill,
269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered

view that the will in this case was subscribed in a manner which fully satisfies
the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first
page of the will attested not only to the genuineness of the signature of the
testatrix but also the due execution of the will as embodied in the
attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial

departure from the usual forms should be ignored, especially where the
authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444,
449).

The law is to be liberally construed, "the underlying and fundamental

objective permeating the provisions on the law on wills in this project
consists in the liberalization of the manner of their execution with the end
in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure and influence upon
the testator. This objective is in accord with the modern tendency in respect
to the formalities in the execution of a will" (Report of the Code commission,
p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order

that were not for the defect in the place of signatures of the witnesses, he
would have found the testimony sufficient to establish the validity of the
will.

The objects of attestation and of subscription were fully met and satisfied in
the present case when the instrumental witnesses signed at the left margin
of the sole page which contains all the testamentary dispositions, especially
so when the will was properly Identified by subscribing witness Vicente
Timkang to be the same will executed by the testatrix. There was no
question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This would
have been a fatal defect were it not for the fact that, in this case, it is
discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations with respect to the purpose of the requirement that
the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended
by Act No. 2645, which requires that the attestation clause shall state the
number of pages or sheets upon which the win is written, which
requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of
the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca,
43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these
cases seems to be that the attestation clause must contain a statement of
the number of sheets or pages composing the will and that if this is missing
or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which
the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of construction and places it
within the realm of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from being defeated by
purely technical considerations.

no intentional or deliberate deviation existed, and the evidence on record

attests to the fun observance of the statutory requisites. Otherwise, as
stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will by muddling or bungling
it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the

respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for appointment
of a special administrator are set aside. The respondent court is ordered to
allow the probate of the wig and to conduct further proceedings in
accordance with this decision. No pronouncement on costs.

G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies
a similar liberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact
that the testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control where the purpose of the law to guarantee the
Identity of the testament and its component pages is sufficiently attained,

NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to

probate the document and its duplicate, marked as Exhibits "A" and "A-1",
as the true last will and testament of Josefa Villacorte, deceased, and
appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the
alleged will of Josefa Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and
caused notice thereof to be published for three (3) successive weeks,
previous to the time appointed, in the newspaper "Manila chronicle", and
also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed

her opposition; and on November 10, 1958, she petitioned to have herself
appointed as a special administrator, to which proponent objected. Hence,
on November 18, 1958, the court issued an order appointing the Philippine
Trust Company as special administrator. 1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of
the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction

of his evidence; but on June 1, 1959, he filed a motion for the admission of

an amended and supplemental petition, alleging that the decedent left a will
executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959, oppositors
Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but
by order of July 20, 1959, the court admitted said petition, and on July 30,
1959, oppositor Natividad Icasiano filed her amended opposition.
Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its
duplicate to probate. From this order, the oppositors appealed directly to
this Court, the amount involved being over P200,000.00, on the ground that
the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on June 2,
1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental
witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and
Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by
the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will
was actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and testament,
together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the
execution of the decedent's last will and testament, attorneys Torres and
Natividad were in the Philippines at the time of the hearing, and both
testified as to the due execution and authenticity of the said will. So did the
Notary Public before whom the will was acknowledged by the testatrix and
attesting witnesses, and also attorneys Fermin Samson, who actually
prepared the document. The latter also testified upon cross examination
that he prepared one original and two copies of Josefa Villacorte last will

and testament at his house in Baliuag, Bulacan, but he brought only one
original and one signed copy to Manila, retaining one unsigned copy in
Bulacan.

The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it does
not contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the
amended and supplemental petition and marked as Exhibit "A-1" is signed
by the testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that
the original of the will and its duplicate were subscribed at the end and on
the left margin of each and every page thereof by the testatrix herself and
attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the original); that pages
of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is
written in the language known to and spoken by the testatrix that the
attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate
copies; and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the same
date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that

the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine
nor were they written or affixed on the same occasion as the original, and
further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because
the testatrix was deceived into adopting as her last will and testament the
wishes of those who will stand to benefit from the provisions of the will, as
may be inferred from the facts and circumstances surrounding the execution
of the will and the provisions and dispositions thereof, whereby proponentsappellees stand to profit from properties held by them as attorneys-in-fact
of the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty of
forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that
the testatrix signed both original and duplicate copies (Exhibits "A" and "A1", respectively) of the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and
its duplicate were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the testatrix and
Atty. Fermin Samson, together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the testatrix
and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan,
that the signatures of the testatrix appearing in the duplicate original were
not written by the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly contradicted by
expert Martin Ramos for the proponents, but principally because of the
paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond
the writer's range of normal scriptural variation. The expert has, in fact, used

as standards only three other signatures of the testatrix besides those

affixed to the original of the testament (Exh. A); and we feel that with so few
standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly
so since the comparison charts Nos. 3 and 4 fail to show convincingly that
the are radical differences that would justify the charge of forgery, taking
into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right
the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering the
standard and challenged writings were affixed to different kinds of paper,
with different surfaces and reflecting power. On the whole, therefore, we
do not find the testimony of the oppositor's expert sufficient to overcome
that of the notary and the two instrumental witnesses, Torres and Natividad
(Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that
some heirs are more favored than others is proof of neither (see In re
Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45
Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other
property and that they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to
prevent prolonged litigation which, as shown by ordinary experience, often
results in a sizeable portion of the estate being diverted into the hands of
non-heirs and speculators. Whether these clauses are valid or not is a matter
to be litigated on another occassion. It is also well to note that, as remarked
by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and
undue influence are mutually repugnant and exclude each other; their

joining as grounds for opposing probate shows absence of definite evidence

against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness
to affix his signature to one page of a testament, due to the simultaneous
lifting of two pages in the course of signing, is not per se sufficient to justify
denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over
whose conduct she had no control, where the purpose of the law to
guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage the will by muddling
or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in every
page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the
time.

This would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, where the purposes of the
law are otherwise satisfied. Thus, despite the literal tenor of the law, this
Court has held that a testament, with the only page signed at its foot by

testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure to
make the first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to
require satisfaction of the legal requirements in order to guard against fraud
and bid faith but without undue or unnecessary curtailment of the
testamentary privilege.

The appellants also argue that since the original of the will is in existence
and available, the duplicate (Exh. A-1) is not entitled to probate. Since they
opposed probate of original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here into a dilemma; if
the original is defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the
original is valid and can be probated, then the objection to the signed
duplicate need not be considered, being superfluous and irrelevant. At any
rate, said duplicate, Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was inadvertent and
not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without
a new publication does not affect the jurisdiction of the probate court,
already conferred by the original publication of the petition for probate. The
amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing
is made that new interests were involved (the contents of Exhibit A and A-1
are admittedly identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the amendment deprived
the appellants of any substantial right, and we see no error in admitting the
amended petition.

G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitionerappellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court

of First Instance of Samar, admitting to probate the will allegedly executed
by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14,
1949.

The main objection insisted upon by the appellant in that the will is fatally
defective, because its attestation clause is not signed by the attesting
witnesses. There is no question that the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The
attestation clause is 'a memorandum of the facts attending the execution of
the will' required by law to be made by the attesting witnesses, and it must

necessarily bear their signatures. An unsigned attestation clause cannot be

considered as an act of the witnesses, since the omission of their signatures
at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses
on the left-hand margin conform substantially to the law and may be
deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the
will be signed on the left-hand margin of all its pages. If an attestation clause
not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in
question denied. So ordered with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

margin. The witnesses testified not only that the will was signed by the
testator in their presence and in the presence of each other but also that
when they did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by the
oppositors to the validity of the will is the fact that the signatures of the
instrumental witnesses do not appear immediately after the attestation
clause.

This objection is too technical to be entertained. In the case of Abangan vs.

Abangan, (40 Phil., 476), this court said that when the testamentary
dispositions "are wholly written on only one sheet signed at the bottom by
the testator and three witnesses (as the instant case),their signatures on the
left margin of said sheet would be completely purposeless." In such a case,
the court said, the requirement of the signatures on the left hand margin
was not necessary because the purpose of the law which is to avoid the
substitution of any of the sheets of the will, thereby changing the testator's
dispositions has already been accomplished. We may say the same thing
in connection with the will under consideration because while the three
instrumental witnesses did not sign immediately by the majority that it may
have been only added on a subsequent occasion and not at the
uncontradicted testimony of said witnesses to the effect that such
attestation clause was already written in the will when the same was signed.

Separate Opinions
The following observation made by this court in the Abangan case is very
fitting:
BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with

the formalities of the law and, therefore, should be admitted to probate . It
appears that the will was signed by the testator and was attested by three
instrumental witnesses, not only at the bottom, but also on the left-hand

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 i 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 already given assures such ends, any
other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary useless and frustrative of the testator's last
will, must be disregarded. (supra)

G.R. No. L-32213 November 26, 1973

We should not also overlook the liberal trend of the New Civil Code in the
matter of interpretation of wills, the purpose of which, in case of doubt, is
to give such interpretation that would have the effect of preventing
intestacy (article 788 and 791, New Civil Code)

HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court

of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

I am therefore of the opinion that the will in question should be admitted to

probate.

AGAPITA N. CRUZ, petitioner,

vs.

Paul G. Gorrez for petitioner.

Feria, J., concurs.

Mario D. Ortiz for respondent Manuel B. Lugay.

TUASON, J., dissenting:

ESGUERRA, J.:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the
majority decision erroneously sets down as a fact that the attestation clause
was no signed when the witnesses signatures appear on the left margin and
the real and only question is whether such signatures are legally sufficient.

The only answers, in our humble opinion, is yes. The law on wills does not
provide that the attesting witness should sign the clause at the bottom. In
the absence of such provision, there is no reason why signatures on the
margin are not good. A letter is not any the less the writter's simply because
it was signed, not at the conventional place but on the side or on top.

Petition to review on certiorari the judgment of the Court First Instance of

Cebu allowing the probate of the last will a testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said
decease opposed the allowance of the will (Exhibit "E"), alleging the will was
executed through fraud, deceit, misrepresentation and undue influence;
that the said instrument was execute without the testator having been fully
informed of the content 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. Jamaloas
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:
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 testator's signature under oath
rather than as attesting the execution of the instrument.
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; Webster's 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 arrangement Balinon v. De Leon, 50 0. G. 583.)
That function would defeated if the notary public were one of the attesting
instrumental witnesses. For them he would be interested sustaining the
validity of the will as it directly involves him and the validity of his own act.
It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission
p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may,
in addition, act as a witness to the executive of the document he has
notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer
v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary
in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47
S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W.
2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W.
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 aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses. He the
notary public acted not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805 of the Civil Code which
reads:
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 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 80 be 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 or that purpose. In the circumstances, the law
would not be duly in 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. L-7179

June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA,

petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.

REYES, J.B.L., J.:

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to
probate the documents in the Visayan dialect, marked Exhibits D and E, as
the testament and codicil duly executed by the deceased Da. Apolinaria
Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente
Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest
surviving relative of said deceased, appealed from the decision, insisting that
the said exhibits were not executed in conformity with law. The appeal was
made directly to this Court because the value of the properties involved
exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix
lacked testamentary capacity and that the dispositions were procured
through undue influence. These grounds were abandoned at the hearing in
the court below, where the issue was concentrated into three specific
questions: (1) whether the testament of 1950 was executed by the testatrix
in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the witnesses; and (3) if so,
whether the codicil was thereby rendered invalid and ineffective. These
questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to
her witnesses Maria Paderogao and Vidal Allado, cook and driver,
respectively, of the deceased Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to
the will) inform the deceased that he had brought the "testamento" and
urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria
manifested that she could not go, because she was not feeling well; and that
upon Yap's insistence that the will had to be signed in the attorney's office
and not elsewhere, the deceased took the paper and signed it in the
presence of Yap alone, and returned it with the statement that no one would
question it because the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for

reversing the trial Court's rejection of the improbable story of the witnesses.
It is squarely contradicted by the concordant testimony of the instrumental
witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola,
who asserted under oath that the testament was executed by testatrix and
witnesses in the presence of each other, at the house of the decedent on
General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,
and contrary to usage, that either Tabiana or Yap should have insisted that
Da. Apolinaria, an infirm lady then over 80 years old, should leave her own
house in order to execute her will, when all three witnesses could have easily
repaired thither for the purpose. Moreover, the cross-examination has
revealed fatal flaws in the testimony of Contestant's witnesses. Both claim
to have heard the word "testamento" for the first time when Yap used it;
and they claimed ability to recall that word four years later, despite the fact
that the term meant nothing to either. It is well known that what is to be
remembered must first be rationally conceived and assimilated (II Moore on
Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the
will, and that the deceased alone signed it, precisely on March 30, 1950; but
she could remember no other date, nor give satisfactory explanation why
that particular day stuck in her mind. Worse still, Allado claimed to have
heard what allegedly transpired between Yap and Da. Apolinaria from the
kitchen of the house, that was later proved to have been separated from the
deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the
kitchen. Later, on redirect examination, Allado sought to cure his testimony
by claiming that he was upstairs in a room where the servants used to eat
when he heard Yap converse with his mistress; but this correction is
unavailing, since it was plainly induced by two highly leading questions from
contestant's counsel that had been previously ruled out by the trial Court.
Besides, the contradiction is hardly consonant with this witness' 18 years of
service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the

presence or absence of Aurelio Montinola at the signing of the testament or

of the codicil, and the identity of the person who inserted the date therein,
are not material and are largely imaginary, since the witness Mrs. Tabiana
confessed inability to remember all the details of the transaction. Neither
are we impressed by the argument that the use of some Spanish terms in
the codicil and testament (like legado, partes iguales, plena propiedad) is
proof that its contents were not understood by the testatrix, it appearing in
evidence that those terms are of common use even in the vernacular, and
that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that
signing of the certificate of acknowledgment (in Spanish) appended to the
Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed
after the enactment of the new Civil Code, and, therefore, had to be
acknowledged before a notary public (Art. 806). Now, the instrumental
witnesses (who happen to be the same ones who attested the will of 1950)
asserted that after the codicil had been signed by the testatrix and the
witnesses at the San Pablo Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion. On the other hand, Gimotea
affirmed that he did not do so, but brought the codicil to his office, and
signed and sealed it there. The variance does not necessarily imply conscious
perversion of truth on the part of the witnesses, but appears rather due to
a well-established phenomenon, the tendency of the mind, in recalling past
events, to substitute the usual and habitual for what differs slightly from it
(II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary
signed the certification of acknowledgment in the presence of the testatrix
and the witnesses, does not affect the validity of the codicil. Unlike the Code
of 1889 (Art. 699), the new Civil Code does not require that the signing of
the testator, witnesses and notary should be accomplished in one single act.
A comparison of Articles 805 and 806 of the new Civil Code reveals that while
testator and witnesses sign in the presence of each other, all that is
thereafter required is that "every will must be acknowledged before a
notary public by the testator and the witnesses" (Art. 806); i.e., that the
latter should avow to the certifying officer the authenticity of their

signatures and the voluntariness of their actions in executing the

testamentary disposition. This was done in the case before us. The
subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is no part of
the acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her witnesses
can not be said to violate the rule that testaments should be completed
without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman
maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible
error was committed by the Court in so holding. It is noteworthy that Article
806 of the new Civil Code does not contain words requiring that the testator
and the witnesses should acknowledge the testament on the same day or
occasion that it was executed.

Bayani Ma. Rino for and in his own behalf.

The decision admitting the will to probate is affirmed, with costs against
appellant.

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.

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,
vs.
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.

Vicente R. Redor for petitioner.

BELLOSILLO, J.:

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.

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, Brigido's 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 testator's 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
testator's 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 and threats; that it was procured
by undue and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's 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 was executed;
that since the reading required by Art. 808 of the Civil Code was admittedly
not complied with, probate of the deceased's 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
purpose 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:

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.

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 layman's 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 respondent's 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 vs. Vasquez 13 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 confortably 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 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 latter's will and codicil should have been disallowed.

We sustain private respondent's 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 testator's 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 testator's 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 testator's
physician) asked the testator whether the contents of the document 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 testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's

Probate Order and its affirmance by the Court of Appeals, we quote the
following pronouncement in Abangan v. Abangan, 18 to wit:

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 testator's will, must be disregarded (emphasis supplied).

HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator

of the Estate of Mateo Caballero, respondents.

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 fro 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.

Emilio Lumontad, Jr. for private respondents.

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. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO,
SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA,
QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-inFact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented
herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.

Palma, Palma & Associates for petitioners.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on
certiorari is the issue of whether or not the attestation clause contained in
the last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower

without any children and already in the twilight years of his life, executed a
last will and testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will. 1 It was declared therein, among other things,
that the testator was leaving by way of legacies and devises his real and
personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of
whom do not appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a

petition docketed as Special Proceeding No. 3899-R before Branch II of the

then Court of First Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing on August 20, 1979
but the same and subsequent scheduled hearings were postponed for one
reason to another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. 3 On February 25, 1981,
Benoni Cabrera, on of the legatees named in the will, sough his appointment
as special administrator of the testator's estate, the estimated value of
which was P24,000.00, and he was so appointed by the probate court in its
order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the

testator, instituted a second petition, entitled "In the Matter of the Intestate
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R,
before Branch IX of the aforesaid Court of First Instance of Cebu. On October
18, 1982, herein petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in Branch II of the Court of
First Instance of Cebu and opposed thereat the probate of the Testator's will
and the appointment of a special administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now
known as Branch XV of the Regional Trial Court of Cebu, appointed William
Cabrera as special administrator on June 21, 1983. Thereafter, on July 20,
1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the Regional Trial Court of
Cebu where it remained until the conclusion of the probate proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein

petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the

testator was already in the poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public Atty. Filoteo Manigos, testified that the testator executed the
will in question in their presence while he was of sound and disposing mind
and that, contrary to the assertions of the oppositors, Mateo Caballero was
in good health and was not unduly influenced in any way in the execution of
his will. Labuca also testified that he and the other witnesses attested and
signed the will in the presence of the testator and of each other. The other
two attesting witnesses were not presented in the probate hearing as the
had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot

overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano
Labuca who clearly told the Court that indeed Mateo Caballero executed the
Last Will and Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the probate of
his Will during his lifetime when he caused the filing of the original petition
now marked Exhibit "D" clearly underscores the fact that this was indeed his
Last Will. At the start, counsel for the oppositors manifested that he would
want the signature of Mateo Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it would seem that despite their avowal
and intention for the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they abandoned the idea and

instead presented Aurea Caballero and Helen Caballero Campo as witnesses

for the oppositors.

in the presence of the said testator and in the presence of each and all of us
(emphasis supplied).

All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance with
all the requisites of the law. 9

To our thinking, this is sufficient compliance and no evidence need be

presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of
one another. Or as the language of the law would have it that the testator
signed the will "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 not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic) the phrase as formulated
is in substantial compliance with the requirement of the law." 11

Undaunted by the said judgment of the probate court, petitioners elevated

the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted
therein that the will in question is null and void for the reason that its
attestation clause is fatally defective since it fails to specifically state that
the instrumental witnesses to the will witnessed the testator signing the will
in their presence and that they also signed the will and all the pages thereof
in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10

affirming that of the trial court, and ruling that the attestation clause in the
last will of Mateo Caballero substantially complies with Article 805 of the
Civil Code, thus:

The question therefore is whether the attestation clause in question may be

considered as having substantialy complied with the requirements of Art.
805 of the Civil Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the testament was
read by him and the attestator, Mateo Caballero, has published unto us the
foregoing will consisting of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters of the upper part of each page,
as his Last Will and Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand margin

Petitioners moved for the reconsideration of the said ruling of respondent

court, but the same was denied in the latter's resolution of January 14, 1992,
12 hence this appeal now before us. Petitioners assert that respondent court
has ruled upon said issue in a manner not in accord with the law and settled
jurisprudence on the matter and are now questioning once more, on the
same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter,

after some prefatory observations which we feel should be made in aid of
the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is

permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate after his death. 13 Under the Civil Code,
there are two kinds of wills which a testator may execute. 14 the first kind is

the ordinary or attested will, the execution of which is governed by Articles

804 to 809 of the Code. Article 805 requires that:

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 should 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 witness, it shall be

interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public

by a testator and the attesting witness. 15 hence it is likewise known as
notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires
that he must personally read the will, if able to do so. Otherwise, he should
designate two persons who would read the will and communicate its

contents to him in a practicable manner. On the other hand, if the testator

is blind, the will should be read to him twice; once, by anyone of the
witnesses thereto, and then again, by the notary public before whom it is
acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as
one that is entirely written, dated, and signed by the testator himself. This
kind of will, unlike the ordinary type, requires no attestation by witnesses.
A common requirement in both kinds of will is that they should be in writing
and must have been executed in a language or dialect known to the testator.
17

However, in the case of an ordinary or attested will, its attestation clause

need not be written in a language or dialect known to the testator since it
does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known to
the attesting witnesses. 18 The last paragraph of Article 805 merely requires
that, in such a case, the attestation clause shall be interpreted to said
witnesses.

An attestation clause refers to that part of an ordinary will whereby the

attesting witnesses certify that the instrument has been executed before
them and to the manner of the execution the same. 19 It is a separate
memorandum or record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been
observed. 20 It is made for the purpose of preserving in a permanent form
a record of the facts that attended the execution of a particular will, so that
in case of failure of the memory of the attesting witnesses, or other casualty,
such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of
which would result in the invalidity of the will, 22 should state (1) the
number of the pages used upon which the will is written; (2) that the
testator signed, or expressly caused another to sign, the will and every page
thereof in the presence of the attesting witnesses; and (3) that the attesting
witnesses witnessed the signing by the testator of the will and all its pages,
and that said witnesses also signed the will and every page thereof in the
presence of the testator and of one another.

The underlying and fundamental objectives permeating the provisions on

the law on wills in this Project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . . 29
The purpose of the law in requiring the clause to state the number of pages
on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease
in the pages; 23 whereas the subscription of the signature of the testator
and the attesting witnesses is made for the purpose of authentication and
identification, and thus indicates that the will is the very same instrument
executed by the testator and attested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby

declare the due execution of the will as embodied in the attestation clause.
25 The attestation clause, therefore, provide strong legal guaranties for the
due execution of a will and to insure the authenticity thereof. 26 As it
appertains only to the witnesses and not to the testator, it need be signed
only by them. 27 Where it is left unsigned, it would result in the invalidation
of the will as it would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and its witnesses. 28

In its report, the Code Commission commented on the reasons of the law
for requiring the formalities to be followed in the execution of wills, in the
following manner:

2. An examination of the last will and testament of Mateo Caballero shows

that it is comprised of three sheets all of which have been numbered
correlatively, with the left margin of each page thereof bearing the
respective signatures of the testator and the three attesting witnesses. The
part of the will containing the testamentary dispositions is expressed in the
Cebuano-Visayan dialect and is signed at the foot thereof by the testator.
The attestation clause in question, on the other hand, is recited in the
English language and is likewise signed at the end thereof by the three
attesting witnesses hereto. 30 Since it is the proverbial bone of contention,
we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal

addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered correlatively
in the letters on the upper part of each page, as his Last Will and Testament
and he has the same and every page thereof, on the spaces provided for his
signature and on the left hand margin, in the presence of the said testator
and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest
and subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is the act of
senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as
such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on
the same paper the names of the witnesses, for the sole purpose of
identification. 31

In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing

the testator's execution of the will in order to see and take note mentally
that those things are done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for
the purpose of identification of such paper as the will which was executed
by the testator. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator and of each
other unless this is substantially expressed in the attestation.

states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed
their respective signatures to the will in the presence of the testator and of
each other.

The phrase "and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin," obviously
refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament." On the other hand,
although the words "in the presence of the testator and in the presence of
each and all of us" may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as referring only to the
testator signing in the presence of the witnesses since said phrase
immediately follows the words "he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical analysis , is the
statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another.

It is contended by petitioners that the aforequoted attestation clause, in

contravention of the express requirements of the third paragraph of Article
805 of the Civil Code for attestation clauses, fails to specifically state the fact
that the attesting witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every
page thereof in the presence of the testator and of each other. We agree.

It is our considered view that the absence of that statement required by law
is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the
form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:

What is fairly apparent upon a careful reading of the attestation clause

herein assailed is the fact that while it recites that the testator indeed signed
the will and all its pages in the presence of the three attesting witnesses and

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid

if it is not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805" (Emphasis
supplied.)

While it may be true that the attestation clause is indeed subscribed at the
end thereof and at the left margin of each page by the three attesting
witnesses, it certainly cannot be conclusively inferred therefrom that the
said witness affixed their respective signatures in the presence of the
testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did subscribe to
the will in the presence of the testator and of each other. The execution of
a will is supposed to be one act so that where the testator and the witnesses
sign on various days or occasions and in various combinations, the will
cannot be stamped with the imprimatur of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes 34

regarding Article 809, wherein he urged caution in the application of the
substantial compliance rule therein, is correct and should be applied in the
case under consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be

supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was notarized.
All theses are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in the
probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the attestation or
the language employed therein. Such defects or imperfections would not
render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner
of proving the due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to evidence
aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause

totally omits the fact that the attesting witnesses signed each and every
page of the will in the presence of the testator and of each other. 35 In such
a situation, the defect is not only in the form or language of the attestation
clause but the total absence of a specific element required by Article 805 to
be specifically stated in the attestation clause of a will. That is precisely the
defect complained of in the present case since there is no plausible way by
which we can read into the questioned attestation clause statement, or an
implication thereof, that the attesting witness did actually bear witness to
the signing by the testator of the will and all of its pages and that said
instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be

revoked or relied on by respondents since it presupposes that the defects in
the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will. In
other words, defects must be remedied by intrinsic evidence supplied by the
will itself.

In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied by only extrinsic
evidence thereof, since an overall appreciation of the contents of the will
yields no basis whatsoever from with such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his witnesses
alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be
followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements were
at that time embodied primarily in Section 618 of Act No. 190, the Code of
Civil Procedure. Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in the Civil
Code.

One view advance the liberal or substantial compliance rule. This was first
laid down in the case of Abangan vs. Abangan, 36 where it was held 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 guarantee their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain these
primordial ends. Nonetheless, it was also emphasized that 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, hence 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 testator's last will, must be disregarded. The subsequent

cases of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39
Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs.
Mojal, et al. 42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory
in nature and are to be strictly construed was followed in the subsequent
cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44
Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana.
47

Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to
clarify the seemingly conflicting decisions in the aforementioned cases. In
said case of Gumban, the attestation clause had failed to state that the
witnesses signed the will and each and every page thereof on the left margin
in the presence of the testator. The will in question was disallowed, with
these reasons therefor:

In support of their argument on the assignment of error above-mentioned,

appellants rely on a series of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In
re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922],
43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the
citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40
Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and
Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in
Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our
task is to contrast and, if possible, conciliate the last two decisions cited by

opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.

Quintana decision is believed more nearly to conform to the applicable

provisions of the law.

In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each and
every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca,
supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not
mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,
wherein it was held that the attestation clause must estate the fact that the
testator and the witnesses reciprocally saw the signing of the will, for such
an act cannot be proved by the mere exhibition of the will, if it is not stated
therein. It was also held that the fact that the testator and the witnesses
signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the
omission to state such evident facts does not invalidate the will.

The right to dispose of property by will is governed entirely by statute. The

law of the case is here found in section 61 of the Code of Civil Procedure as
amended by Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as amended that "No will . .
. shall be valid . . . unless . . .." It is further provided in the same section that
"The attestation shall state the number of sheets or 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 three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that "The will shall
be disallowed in either of the following case: 1. If not executed and attested
as in this Act provided." The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the negative, to
enforce legislative intention. It is not within the province of the courts to
disregard the legislative purpose so emphatically and clearly expressed.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do

they admit inconsistency in doctrine. Yet here, unless aided impossible to
reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points

may be mentioned. In the first place, the Mojal, decision was concurred in
by only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924, while
the Quintana decision was promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in the third place, the

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra,
and, to the extent necessary, modify the decision in the case of Nayve vs.
Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of

the Court that once more appeared to revive the seeming diversity of views
that was earlier threshed out therein. The cases of Quinto vs. Morata, 49
Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of
Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs.
Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55

Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez
vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away
from the strict interpretation rule and established a trend toward an
application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of

the undeniable inclination towards a liberal construction, recommended the
codification of the substantial compliance rule, as it believed this rule to be
in accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the
Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is,
in accordance with the formalities prescribed by Section 618 of the Code of
Civil Procedure as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section 618 of the Code
of Civil Procedure, as amended regarding the contents of the attestation
clause were mandatory, and non-compliance therewith invalidated the will
(Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the
freedom of the testator in disposing of his property.

However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution
of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R.
No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa,
G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically

gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To turn
this attitude into a legislative declaration and to attain the main objective of
the proposed Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid
if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 829." 65

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not
offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop; they
draw the dividing line with precision. They do not allow evidence aliunde to
fill a void in any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will, an exploration
into its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which
can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will
itself. 67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of

respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero)
and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate
Estate of Mateo Caballero) as an active case and thereafter duly proceed
with the settlement of the estate of the said decedent.
SO ORDERED.

G.R. No. L-3497

May 18, 1951

THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF

JOSE VENZON. VALENTINA CUEVAS, petitioner-appellee,
vs.

On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In
said will the deceased instituted as his heirs, Valentina Cuevas, his widow
and Rosario Asera Venzon, his daughter. He named therein his widow as
executrix of the will. On February 1, 1946, Valentina Cuevas filed a petition
for the probate of said will.

On May 10, 1946, one Pilar Achacoso filed an alternative petition for the
probate of a previous will executed by the deceased praying therein that, if
the will submitted by the widow be rejected, the other will be admitted to
probate in lieu thereof. In the previous will there are other heirs instituted,
among them petitioner Pilar Achacoso. Pilar Achacoso objected to the
probate of the second will executed by the deceased on October 10, 1945.
After due hearing, the court found that the latter will was executed in
accordance with law and ordered that it be admitted to probate. Pilar
Achacoso took the case to the Court of Appeals, but the latter certified it to
this Court on the ground that it involves purely questions of law.

PILAR ACHACOSO, oppositor-appellant.

Juan R. Arbizo and Antonio Gonzales for petitioner-appellee.

Mariano Trinidad and Luis J. Nepomuceno for oppositor-appellant.

BAUTISTA ANGELO, J.:

The main error assigned refers to the alleged lack of attestation clause in the
will under consideration, or to the fact that, if there is such attestation
clause, the same has not been signed by the instrumental witnesses, but by
the testator himself, and it is claimed that this defect has the effect of
invalidating the will.

The will in question, after reciting in separate paragraphs, and under

correlative numbers, the provisions of the will, winds up with the following
clause:

This is an appeal from an order of the Court of First Instance of Zambales

admitting to probate the last will and testament of the late Jose Venzon.
IN WITNESS WHEREOF, I sign this testament or last will in the municipality
of Iba, Zambales, Philippines, this 10th day of October, 1945, in the presence
of the three witnesses, namely Dr. Nestorio Trinidad, Don Baldomero

Achacoso, and Mr. Proceso Cabal as instrumental witnesses to my signing;

this testament is written in three (3) sheets marked by letter "A", "B" and
"C" consecutively on top of each sheet and upon my request and in my
presence and also in the presence of each of the aforesaid instrumental
witnesses, they also signed this testament already reffered to.

I hereby manifest that every sheet of the aforesaid testament, on the lefthand margin as well as the testament itself have been signed by me as also
each of the witnesses has also signed in my presence and in the presence of
each other.

(Sgd.) JOSE VENZON

"Instrumental witness, as define by Escriche in his Diccionario Razonado de

Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the
execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807,
809). An instrumental witness, therefore, does not merely attest to the
signature of the testator but also to the proper execution of the will. The
fact that the three instrumental witnesses have signed the will immediately
under the signature of the testator, shows that they have in fact attested
not only to the genuineness of his signature but also to the due execution of
the will as embodied in the attestation clause.

The attestation clause in question bears close similarity with the attestation
clause in the will involved in Aldaba vs. Roque, (43 Phil., 378). In that case,
the attestation claused formed part of the body of the will and its recital was
made by the testratrix himself and was signed by her and by the three
instrumental witnesses. In upholding the validity of the will, the court said:

Witnesses:

(Sgd.) NESTORIO TRINIDAD

(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.

The clause above quoted is the attestation clause reffered to in the law
which, in our opinion, substantially complies with its requirements. The only
apparent anomaly we find is that it appears to be an attestation made by
the testator himself more than by the instrumental witnesses. This apparent
anomaly, as to affect the validity of the will, it appearing that right under the
signature of the testator, there appear the signatures of the three
instrumental witnesses.

In reality it appears that it is the testratrix who makes the declaration about
the points in the last paragraph of the will; however as the witnesses
together with the testratrix, have signed the said declaration, we are of the
opinion and so hold that the words above quoted of the testament
constitute a sufficient compliance with the requirements of Act No. 2645.

As was said in one case, "the object of the solemnities surrounding the
execution of the wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject should be intrepreted in
such a way as to attain this premordial 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 testator's will, must be disregarded." (In re will of Tan
Diuco, supra, p. 811.) (Emphasis supplied.)
Expressive of this liberal view of interpretation, are also the following rules
embodied in the new Civil Code. These provisions, although not directly
applicable, are however, significant because they project the point of view
of our legislature when it adopted them having in view the existing law and
jurisprudence on the matter.
. 788. If a testamentary disposition admits of different interpretations, in
case of doubt, that interpretation by which the disposition is to be operative
shall be preferred.
Art. 791. The words of a will are to receive an interpretation which will give
to every expressions inoperative; and of two modes of interpreting a will,
that is to be preferred which will prevent intestacy.
Wherefore, the order appealed from is hereby affirmed, with costs against
the appellant.
Paras, C.J., Feria and Tuason, JJ., concur.

G.R. No. L-35586

October 31, 1932

Estate of the deceased Caridad Alcantara de Gorostiza.

CONSORCIA DICHOSO DE TICSON, petitioner-appellant,
vs.
MARINO DE GOROSTIZA, oppositor-appellee.

Ramon Diokno for appellant.

Guevara, Francisco and Recto for appellee.

MALCOLM, J.:
The will of the deceased Caridad Alcantara de Gorostiza was denied probate
in the trial court, for the reason that the attestation clause failed to state
that the testatrix signed every page of the will as required by section 618, as
amended, of the Code of Civil Procedure. The attestation clause in question
reads:
"We the undersigned attesting witnesses, whose residences are stated
opposite our respective names, do hereby certify that the testatrix, whose
name is signed hereinabove, has publish unto us the foregoing will
consisting of two pages as her Last Will and Testament and has signed the
same in our presence, and in witness whereof we have each signed the same
and each page thereof in the presence of said testatrix and in the presence
of each other." The single question is, if the attestation clause above quoted
is fatally defective and so annuls the will, or if the said attestation clause
conforms to the law and so permits the court to respect the wishes of the
deceased and to sustain the will.
The theses of the appellant and the appellee are as far apart as the poles.
Appellant says that when the attestation clause mentions "the testratrix,
whose name is signed hereinabove", the word "hereinabove" should be
taken as not only referring to the signature at the end of the will but to the
signatures on the margin of its two pages, and that when later the
attestation clause mentions "the foregoing will consisting of two pages as
her Last Will and Testament, and has signed the same", the word "same"
refers to the two pages of the will and not to the will itself. Appellee on the
other hand maintains that in the attestation clause, all that has been said
about the testatrix, "whose name is signed hereinabove" is that "she has
signed the same (will) in our (witnesses) presence", and that the attestation
clause does not set forth that the testatrix has signed every page of the will
in the presence of the attesting witnesses.
Placing the attestation clause under the judicial microscope, we observe,
after analytical study, that it shows compliance with statutory provisions.
We must reject as untenable the interpretation of the appellant relative to
the word "hereinabove", for this simply has reference to the signature of the

testatrix at the end of the will. We must reject also as untenable the
interpretation of the appellant that the word "same" refers back to "pages"
and not to "will", for such an interpretation would be inconsistent with the
language used further on in the attestation clause where mention is made
of the signing by the witnesses of "the same and each page thereof",
meaning the will and each page thereof. We are, however, clear that when
the attestation clause states that the testatrix "has publish unto us the
foregoing will consisting of two pages as her Last Will and Testament, and
has signed the same", the word "same" signifies the foregoing will consisting
of two pages, which necessarily implies the signature by the testatrix of the
will and every page thereof. In our judgment, an interpretation sustaining
the validity of the attestation clause is neither forced nor illogical.
Precision of language in the drafting of an attestation clause is desirable.
However, it is not imperative that a parrot-like copy of the words of the
statute be made. It is sufficient if from the language employed it can
reasonably de deduced that the attestation clause fulfills what the law
expects of it.
There is another aspect to the case. Evidence of course may not be admitted
to supply omissions in an attestation clause. The attestation clause must
show on its face a compliance with the law. But this does not preclude an
examination of the will, and here the will itself shows that the testatrix and
the witnesses signed on the left-hand margin of the two pages; that the
testatrix signed at the end of the will, and that the witnesses signed at the
end of the attestation clause. The attestation clause is a part of the
instrument which so closely, if not literally, adheres to the law of wills.
It has been observed during our deliberations that a decision upholding the
will before us would run counter to a uniform line of authorities to the
contrary. That is hardly an exact statement. The truth is that there have been
noticeable in the Philippines two divergent tendencies in the law of wills
the one being planted on strict construction and the other on liberal
construction. A late example of the former views may be found in the
decision in Rodriguez vs. Alcala ([1930], 55 Phil., 150), sanctioning a literal
enforcement of the law. The basic case in the other direction, predicated on

reason, is Abangan vs. Abangan ([1919], 40 Phil., 476), oft-cited approvingly

in later decisions.
The attestation clause here is an exact transcription of the form found in
former Justice Fisher's New Encyclopedia of Philippine Legal Forms, third
edition, page 495, except that, by typographical error, the word "published"
has been written "publish". So it would be a safe assumption that there are
other wills in this jurisdiction having similar attestation clauses. A decision
against the will in this case might accordingly have far-reaching and
disastrous results.
Legalistic formalities should not be permitted to obscure the use of good
sound common sense in the consideration of wills and to frustrate the
wishes of deceased persons solemnly expressed in testaments, regarding
the execution of which there is not even a hint of bad faith or fraud. We find
the attestation clause legally sufficient, and order that the will of the
deceased Caridad Alcantara de Gorostiza be admitted to probate.
Judgment reversed, the costs of both instances to be paid by the appellee.

G.R. No. L-4888

May 25, 1953

JOSE MERZA, petitioner,

vs.
PEDRO LOPEZ PORRAS, respondent.

Primicias, Abad, Mencies & Castillo for petitioner.

Moises Ma. Buhain for respondent.

TUAZON , J.:

This is an appeal from the Court of Appeals which affirmed an order of the
Court of First Instance of Zambales denying the probate of the last will and
testament and
so-called codicil, identified as Exhibits A and B, of Pilar Montealegre,
deceased. The testatrix was survived by the husband and collateral relatives,
some of whom, along with the husband, were disinherited in Exhibit B for
the reasons set forth therein.

The opposition to Exhibit A was predicated on alleged defects of the

attestation clause. Written in the local dialect known to the testatrix, the
attestation clause, as translated into English in the record on appeal, reads:

The foregoing instrument consisting of three pages, on the date abovementioned, was executed, signed and published by testatrix Pilar
Montealegre and she declared that the said instrument is her last will and
testament; that in our presence and also in the very presence of the said
testatrix as likewise in the presence of two witnesses and the testatrix each
of us three witnesses signed this a testament.

The opponent objected that this clause did not estate that the tetratrix and
the witnesses had signed each and every page of the will or that she had
signed the instrument in the presence of the witnesses. The Appellate Court
dismissed the first objection, finding that "failure to estate in the attestation
clause in question that the testatrix and/or the witnesses had signed each
and every page of Exhibit A were cured by the fact that each one of the page
of the instrument appears to be signed by the testatrix and the three
attesting witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs.
Gorostiza, 57 Phil., (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl.

(October 18, 1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)."
But granting the correctness of the premise, the court held the second
objection well taken and thus concluded: "The question whether the
testatrix had signed in the presence of said witnesses can not be verified
upon physical examination of the instrument. Hence, the absence of the
require statement in said clause may not, pursuant to the decisions of the
Supreme Court, be offset by proof aliunde even if admitted without any
objection."

The premise of the conclusion is, in our opinion, incorrect.

It must be admitted that the attestation clause was very poor drawn, its
language exceedingly ungrammatical to the point of being difficult to
understand; but from a close examination of the whole context in relation
to its purpose the implication seems clear that the testatrix signed in the
presence of the witnesses. Considering that the witnesses' only business at
hand was to sign and attest to the testatrix's signing of the document, and
that the only actors of the proceeding were the maker and the witnesses
acting and speaking collectively and in the first person, the phrase "in our
presence," used as it was in connection with the process of signing, can not
imply anything but the testatrix signed before them. No other inference is
possible. The prepositional phrase "in our presence" denotes an active verb
and the verb a subject. The verb could not be other than signed and the
subject no other than the testatrix.

The use of the word "also" is no less enlightening. It denotes that, as each of
the witnesses sign in the presence of the testatrix and of one another, so the
testatrix sign in similar or like manner in their presence.

In consonance with the principle of the liberal interpretation, adhered to in

numerous later decision of this Court and affirmed and translated into
inactment in the new Civil Code (Article 827), we are constrained to hold the
attestation clause under consideration sufficient and valid.

"Precision of language in the drafting of the attestation clause is desirable.

However, it is not imperative that a parrot-like copy of the word of the
statue be made. It is sufficient if from the language employed it can
reasonably be deduced that the attestation clause fulfills what the law
expects of it." (Ticson vs. Gorostiza, supra.)

"It could have been the intention of the legislature in providing for the
essential safeguards in the execution of a will to shackle the very right of the
testamentary disposition which the law recognizes and holds sacred."
(Leynes vs. Leynes, supra.)

With reference of Exhibit B the Court of Appeal agreed with the trial court
that the document having been executed one day before Exhibit A could not
be considered as a codicil "because a codicil, as the word implies, is only an
addition to, or modification of, the will." The Court of Appeals added that
"the content of Exhibit B are couched in the language of ordinarily used in a
simple affidavit and as such, may not have the legal effect and force to a
testamentary disposition." Furthermore, the Court of Appeals observed,
disinheritance "may not be made in any instrument other than the will of
Exhibit A, as expressly provided for in article 849 of the Civil Code," and,
"there being no disposition as to the disinheritance of the oppositor, Pedro
Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear that
he can not be disinherited in any other instrument including Exhibit B, which
is, as above stated, a simple affidavit."

Exhibit B does partake of the nature of a will. A will is defined in article 667
of the Civil code of Spain as "the act by which a persons dispose of all his
property or a portion of it," and in article 783 of the new Civil Code as "an
act whereby a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of his estate, to take effect
after his death. Exhibit B comes within this definition.

Being of testamentary character and having been made with all the
formalities of law, Exhibit B is entitled to probate as an independent
testementary desposition. In the absence of any legal provision to the
contrary and there is none in this jurisdiction it is the general, wellestablished rule that two separate and distinct wills may be probated if one
does not revoke the other (68 C.J., 885) and provided that the statutory
requirements relative to the execution of wills have been complied with (Id.
881). As seen, Exhibit B embodied all the requisites of a will, even free of
such formal of literary imperfections as are found in Exhibit A.

It also follows that Exhibit B is a legal and effective vehicle for excluding
lawful heirs from testate or intestate succession. Article 849 of the Civil Code
of Spain does not, as the appealed decision seems to insinuate, require that
the disinheritance should be accomplished in the same instrument by which
the maker provides the disposition of his or her property after his or death.
This article merely provides that "disinheritance can be affected only by a
will (any will) in which the legal cause upon which it is based is expressly
stated."

It is our judgment therefore that the instruments Exhibit A and B admitted

to probate, subject of courts to the right of the disinherited person under
particle 850 to contest the disinheritance, and it is so ordered, with costs
against the appellee.