[G.R. No. 116018.

November 13, 1996]

NELIA A. CONSTANTINO, petitioner, vs. COURT OF APPEALS, AURORA S. ROQUE, PRISCILLA

S. LUNA and JOSEFINA S. AUSTRIA, respondents.
DECISION
BELLOSILLO, J.:
JOSEFA TORRES died intestate leaving a parcel of land located at Balagtas, Bulacan. Among her
heirs are respondents Aurora S. Roque, Priscilla S. Luna and Josefina S. Austria. Sometime in 1984, the
heirs of Josefa Torres, as vendors, and petitioner Nelia A. Constantino, as vendee, entered into a contract
to sell a parcel of land with a total land area of two hundred and fifty (250) square meters. The lot,
owned in common by the Torres heirs, is being occupied by petitioners mother and sister. An adjoining
lot, also co-owned by the heirs, is being occupied by spouses Severino and Consuelo Lim. Pursuant to
their agreement, the heirs authorized petitioner to prepare the necessary Deed of Extrajudicial Settlement
of Estate with Sale.
After having the document drafted - with several spaces left blank including the specification as to
the metes and bounds of the land - petitioner asked the heirs to affix their signatures on the
document. The heirs signed the document with the understanding that respondent Aurora S. Roque, one
of the heirs, would be present when the latter would seek permission from the Bureau of Lands and have
the land surveyed.
However, without the participation of any of the Torres heirs, the property was subsequently
surveyed, subdivided and then covered by TCT Nos. T-292265 and T-292266. Petitioner did not furnish
the heirs with copies of the Deed of Extrajudicial Settlement of Estate with Sale nor of the subdivision
plan and the certificates of title. Upon securing a copy of the deed from the Registry of Deeds, the
respondents learned that the area of the property purportedly sold to petitioner was much bigger than
that agreed upon by the parties. It already included the portion being occupied by the spouses Severino
and Consuelo Lim.
On 2 June 1986, private respondents sent a letter to petitioner demanding the surrender to them of
the deed of settlement and conveyance, the subdivision plan and the certificates of title; but to no
avail. On 25 June 1986respondents filed with the Regional Trial Court of Bulacan an action for annulment
of the deed and cancellation of the certificates of title, with prayer for recovery of damages, attorneys
fees and costs of suit.[1]
Petitioner controverted the allegations of respondents by presenting the Deed of Extrajudicial
Settlement of Estate with Sale dated 10 October 1984 wherein respondents agreed to divide and
adjudicate among themselves the inherited property with an area of one thousand five hundred and
three (1,503) square meters. In the same document, they caused the subdivision of the property into two
(2) lots according to Plan No. PSD-03-009105 identified as Lot 4-A with an area of one thousand ninetysix (1,096) square meters, and Lot 4-B with an area of four hundred and seven (407) square meters, and
acknowledged the sale to petitioner of said Lot 4-B. As a consequence, on 18 March 1985, the Register of
Deeds issued TCT No. T-292265 in the name of the heirs of Josefa Torres and TCT No. T-292266 in the
name of petitioner.
In reply, private respondents reiterated that all the heirs signed the document before the land was
surveyed and subdivided, hence, there was as yet no definite area to be sold that could be indicated in

the deed at the time of the signing. They also claimed that they were not notified about the survey and
the subdivision of the lot and therefore they could not have agreed on the area supposedly sold to
petitioner. The respondent heirs insist that they could not have agreed to the extent of the area actually
reflected in the deed because it included the portion being occupied by the Lim spouses, which was
already the subject of a previous agreement to sell between them and their predecessor.
The trial court entertained serious doubts with respect to the preparation and due execution of the
Deed of Extrajudicial Settlement of Estate with Sale taking into account that (a) while petitioner claimed
that all the heirs signed before the notary public and in her presence, she was not able to enumerate all
the signatories to the document; (b) while petitioner claimed that the document was signed only after the
survey of the land was completed, or on 10 October 1984, such fact was negated by her own witness
who testified that the survey was conducted only on 16 October 1984; and, (c) while petitioner alleged
that the document was signed and notarized in Manila no explanation was offered why the same could
not have been signed and notarized in Bulacan where notaries public abound which could have been less
inconvenient to the parties concerned. Additionally, the trial court relied heavily on the assertions of
respondents as reflected in their demand letter that they did not give their consent to the sale of Lot 4-B.
Thus, on the basis of the evidence on record, the trial court on 27 September 1990 ordered the
annulment and cancellation of the Deed of Extrajudicial Settlement of Estate with Sale, TCT Nos. T292265 and T-292266 and Subdivision Plan No. PSD-03-009105. It also ordered petitioner to pay private
respondents P50,000.00 for moral damages, P15,000.00 for attorneys fees, and to pay the costs of
suit.[2]
On 16 March 1994 respondent Court of Appeals sustained the decision of the trial court,[3] and on 20
June 1994 denied the motion to reconsider its decision.[4]
Petitioner faults respondent Court of Appeals: (a) for disregarding documentary evidence already
presented, marked and identified on a purely technical ground, and (b) for concluding that the Deed of
Extrajudicial Settlement of Estate with Sale did not reflect the true intent of the parties.
Petitioner argues that the trial court should not have denied her motion to admit formal offer of
evidence merely on the basis of technicality such as late filing, citing Siguenza v. Court of Appeals.[5] We
are not persuaded. Indeed, we held in Siguenza that rules of procedure are not to be applied in a very
rigid and technical sense as they are used only to help secure, not override, substantial justice. Yet the
holding is inapplicable to the present case as the trial court had a reasonable basis for denying petitioners
motion On February 6, 1990, Atty. Ponciano Mercado, defendants counsel, manifested in Court that he has (sic)
no more witness to present. He asked that he be given 15 days to make a formal offer of evidence and
which the Court granted. At the scheduled hearing of April 03, 1990, Atty. Ponciano Mercado x x x x was
not in Court. Atty. Veneracion, plaintiffs counsel, called the attention of the Court that Atty. Mercado has
(sic) not yet filed and/or complied with the Court Order dated February 06, 1990, which is to file his
formal offer of evidence. On motion of Atty. Veneracion, defendants right to file a formal offer of
evidence was deemed waived. Atty. Veneracion waived the presentation of rebuttal evidence considering
that the defendant can (sic) no longer make a formal offer of evidence.
On May 11, 1990, the Court was in receipt of a motion to admit formal offer of exhibits filed by the
defendant thru counsel, Atty. Ponciano Mercado, on May 02, 1990. Considering that the same was filed
out of time and the plaintiffs having filed their memorandum already, the motion to admit formal offer of
exhibits was denied (underscoring supplied).
The trial court was correct in holding that petitioner waived the right to formally offer his
evidence. A considerable lapse of time, about three (3) months, had already passed before petitioners
counsel made effort to formally offer his evidence. For the trial court to grant petitioners motion to admit

her exhibits would be to condone an inexcusable laxity if not non-compliance with a court order which, in
effect, would encourage needless delays and derail the speedy administration of justice.
Petitioner also insists that the real intent of the parties was to make the entire Lot 4-B the subject
matter of the sale. She claims that during cross-examination respondent Aurora S. Roque admitted that
she signed in behalf of her co-heirs a receipt for P30,000.00 as partial payment for the lot occupied by Ka
Baring and Lina (relatives of petitioner) and Iling (Consuelo Lim). Moreover, according to petitioner, the
assertions of private respondents to petitioner contained in the demand letter should not necessarily be
true and that the validity of the Deed of Extrajudicial Settlement of Estate with Sale was not affected by
the fact that it was notarized in a place other than where the subject matter thereof was situated, citing
Sales v. Court of Appeals.[6]
These other arguments of petitioner are barren and futile. The admission of respondent Roque
cannot prevail in the face of the clear evidence that there was as yet no meeting of the minds on the
land area to be sold since private respondents were still awaiting the survey to be conducted on the
premises. Obviously, the trial court only lent credence to the assertions in the demand letter after having
weighed the respective evidence of the parties. But even without the letter, the evidence of respondents
had already amply substantiated their claims.
We ruled in the Sales case that the extrinsic validity of a document was not affected by the fact that
it was notarized in a place other than where the subject matter thereof was located. What is more
important under the Notarial Law is that the notary public has authority to acknowledge the document
executed within his territorial jurisdiction. The ruling in Sales is not applicable to the present case. Our
concern here is not whether the notary public had the authority to acknowledge the document executed
within his territorial jurisdiction but whether respondents indeed appeared before him and signed the
deed. However, the quantum of evidence shows that they did not.
The trial court correctly appreciated the fact that the deed was notarized in Manila when it could
have been notarized in Bulacan. This additional detail casts doubt on the procedural regularity in the
preparation, execution and signing of the deed. It is not easy to believe that petitioner and the ten (10)
Torres heirs traveled all the way to Manila to have their questioned document notarized considering that
they, with the exception of respondent Roque, are residents of Balagtas, Bulacan, where notaries public
are easy to find. Consequently, the claim of private respondents that they did not sign the document
before a notary public is more plausible than petitioners feeble claim to the contrary.
Likewise, we find the allegation of respondents that they signed the deed prior to the survey, or
before determination of the area to be sold, worthy of credit as against the contention of petitioner that
they signed after the survey or on 10 October 1984. As found by the trial court, such contention was
contradicted by petitioners own witness who positively asserted in court that the survey was conducted
only on 16 October 1984 or six (6) days after the signing.Quite obviously, when respondents affixed their
signatures on the deed, it was still incomplete since petitioner who caused it to be prepared left several
spaces blank, more particularly as regards the dimensions of the property to be sold. The heirs were
persuaded to sign the document only upon the assurance of petitioner that respondent Roque, pursuant
to their understanding, would be present when the property would be surveyed after obtaining
permission from the Bureau of Lands. As it surfaced, the supposed understanding was merely a ruse of
petitioner to induce respondents to sign the deed without which the latter would not have given their
conformity thereto.[7] Apparently, petitioner deceived respondents by filling the blank spaces in the deed,
having the lots surveyed and subdivided, and then causing the issuance of transfer certificates of title
without their knowledge, much less consent. Thus all the elements of fraud vitiating consent for purposes
of annulling a contract concur: (a) It was employed by a contracting party upon the other; (b) It induced
the other party to enter into the contract; (c) It was serious; and, (d) It resulted in damages and injury
to the party seeking annulment.[8]
Perhaps, another compelling reason for the annulment of the document of settlement and
conveyance is that the second page thereof clearly manifests that the number of the subdivision plan and
the respective areas of Lots 4-A and 4-B were merely handwritten while all the rest of the statements

therein were typewritten, which leads us to the conclusion that handwritten figures thereon were not
available at the time the document was formalized.
WHEREFORE, there being no error to warrant a reversal of the decision and resolution in question
of respondent Court of Appeals, which affirmed the decision of the Regional Trial Court of
Malolos, Bulacan, Br. 22, the instant petition is DENIED.
SO ORDERED.

Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

G.R. No. L-3362

March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL, administratrixappellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.

Eligio C. Lagman for appellant.

Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate the alleged will and testament of the deceased
Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising only question of law.
Her counsel assigns the two following alleged errors:

Primer Error. El Juzgado inferior erro al dejar de declarar que el alegado testamento de Carlos
Gil no ha sido otogar de acuerdo con la ley.

Segundo Error. Erro finalmente a legalizar el referido testamento.

The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 aos de edad, residente de Porac, Pampanga, I. F., hallandome sano y en
pleno goce de mis facultades intelectuales, libre y expontaneamente, sin violencia, coaccion, dolo
o influencia ilegal de persona extraa, otorgo y ordeno este mi testamento y ultima voluntad en
castellano, idioma que poseo y entiendo, de la manera siguiente:
1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no tuvimos hijos;
2. Declaro que tengo propiedades situadas en Manila y en la Provincia de Pampanga;
3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que muebles e
inmuebles situados en Manila y en Pampanga, bajo la condicion de que cuando esta muera y si

hayan bienes remanentes heredadas por ella de mi, que dichos bienes remanentes se
adjudicaran a Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. Galicano Coronel a
quien tengo absoluta confianza, con relevacion de fianza;

En testimonio de todo lo cual, firmo este mi testamento y en el margen izquierdo de cada una de
sus dos paginas, utiles con la clausula de atestiguamiento en presencia de los testigos, quienes a
su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia
cada uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia 27 de Mayo de mil
novecientos treinta y nueve.
CARLOS GIL

Testificacion:
Segunda Pagina (2)

Nosotros los que suscribimos, todos mayores de edad, certificamos: que el testamento que
precede este escrito en la lengua castellana que conoce la testadora, compuesto de dos paginas
utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en la
parte superior de la casilla, asi como todas las hojas del mismo, en nuestra presencia y que cada
uno de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA
(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAA
Regarding the correctness and accuracy of the above-copied alleged will, the court below said:
. . . The only copy available is a printed form contained in the record appeal in case G.R. No. L254, entitled "Testate Estate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and
appellant vs. Roberto Toledo y Gil, oppositor and appellee." Both parties are agreed that this is a
true and correct copy of the will. (P. 10, Record on Appeal).
The appeal being only on questions of law the above finding of the court below cannot be disputed. The
conclusions of law reached by said court are based on it. Moreover, the finding is correctly based on the
evidence of record. The parties agreed that said copy is true and correct. If it were otherwise, they would
not have so agreed, considering that the defect is of an essential character and is fatal to the validity of
the attestation clause.
It will be noted that the attestation clause above quoted does not state that the alleged testor signed the
will. It declares only that it was signed by the witnesses. This is a fatal defect, for the precise purpose of
the attestation clause is to certify that the testator signed the will, this being the most essential element
of the clause. Without it there is no attestation at all. It is said that the court may correct a mere clerical

error. This is too much of a clerical error for it effects the very essence of the clause. Alleged errors may
be overlooked or correct only in matters of form which do not affect the substance of the statement.
It is claimed that the correction may be made by inference. If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where are
we to draw the line? Following that procedure we would be making interpolations by inferences,
implication, and even by internalcircumtantial evidence. This would be done in the face of the clear,
uniquivocal, language of the statute as to how the attestation clause should be made. It is to be
supposed that the drafter of the alleged will read the clear words of the statute when he prepared it. For
the court to supply alleged deficiencies would be against the evident policy of the law. Section 618 of Act
No. 190, before it was amended, contained the following provision:
. . . But the absence of such form of attestation shall not render the will invalid if it proven that
the will was in fact signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the
contents of the attestation clause, entirely suppressed the above-quoted provision. This would show that
the purpose of the amending act was to surround the execution of a will with greater guarantees and
solemnities. Could we, in view of this, hold that the court can cure alleged deficiencies by inferences,
implications, and internal circumstantial evidence? Even in ordinary cases the law requires certain
requisities for the conclusiveness of circumstantial evidence.
It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body of
the alleged will, which we have quoted above. At first glance, it is queer that the alleged testator should
have made an attestation clause, which is the function of the witness. But the important point is that he
attests or certifies his own signature, or, to be accurate, his signature certifies itself. It is evident that one
cannot certify his own signature, for it does not increase the evidence of its authenticity. It would be like
lifting one's self by his own bootstraps. Consequently, the last paragraph of the will cannot cure in any
way the fatal defect of the attestation clause of the witnesses. Adding zero to an insufficient amount does
not make it sufficient.
It is said that the rules of statutory construction are applicable to documents and wills. This is true, but
said rules apply to the body of the will, containing the testamentary provisions, but not to the attestation
clause, which must be so clear that it should not require any construction.
The parties have cited pro and con several decisions of the Supreme Court, some of which are said to be
rather strict and others liberal, in the interpretation of section 618 of Act No. 190, as amended by Act No.
2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE OF CIVIL
PROCEDURE CONSTRUED. The right to dispose of the property by will is governed entirely by
statute. The law is here found in section 618 of the Code of Civil Procedure, as amended. The
law not alone carefully makes use of the imperative, but cautiously goes further and makes use
of the negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. The Philippine authorities relating to the attestation clause to wills
reviewed. The cases of Sao vs. Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152), particularly compared. The decision in In re Will of Quintana,
supra, adopted and reaffirmed. The decision in Nayve vs. Mojal and Aguilar, supra, modified.

3. ID.; ID.; ID.; ID. The portion of section 618 of the Code of Civil Procedure, as amended,
which provides that "The attestation clause 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" applied and enforced.
4. ID.; ID.; ID.; ID. 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. (Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V. Moran, now Chief
Justice of the Supreme Court, in his decision made the following pronouncement:
. . . En la clausula de atestiguamiento del testamento en cuestion, se hace constar que los
testadores firmaron el testamento en presencia de los tres testigos instrumentales y que estos
firmaron el testamento los unos en presencia de los otros, pero no se hace constar que dichos
testigos firmaron el testamento enpresencia de los testadores, ni que estos y aquellos firmaron
todas y cada una de las paginas del testamento los primeros en presencia de los segundos y
vice-versa.

En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado testamento

Exhibit A de Gregorio Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo murio intestado.
The Supreme Court fully affirmed the decision, laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. The attestation clause
must be made in strict conformity with the requirements of section 618 of Act No. 190, as
amended. Where said clause fails to show on its face a full compliance with those requirements,
the defect constitutes sufficient ground for the disallowance of the will. (Sano vs. Quintana, 48
Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde should not be admitted to
establish facts not appearing on the attestation clause, and where said evidence has been
admitted it should not be given the effect intended. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405,
409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED. Section 618
of Act No. 190, as amended, should be given a strict interpretation in order to give effect to the
intention of the Legislature. Statutes prescribing formalities to be observed in the execution of
wills are very strictly construed. Courts cannot supply the defensive execution of will. (40 Cyc., p.
1079; Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of the Gumban vs.
Gorchocase, supra, but not to the extent of validating an attestation clause similar to that involved
herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause which was
complete, and it was also signed by the two attesting witnesses. For this reason, the court said:
In reality, it appears that it is the testatrix who makes the declaration about the points contained
in the above described paragraph; however, as the witnesses, together with the testatrix, 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 section 1 of Act No.
2645 which provides that: . . . (p. 381,supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:
An attestation clause to a will, copied from a form book and reading: "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," held not to be fatally defective and
to conform to the law.
This very different from the attestation clause in the case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939), the will was
objected to on the ground that, although the attestation clause stated that "each of the pages of which
the said will is composed" was signed by the testatrix at the left margin and at the foot of the fifth page,
it did not state that the signature was made in the presence of the witnesses. It was held, however, that
said deficiency was cured by the phrase "as well as by each of us in the presence of the testatrix." The
words "as well as" indicate that the testatrix signed also in the presence of the witnesses, for the phrase
"as well as" in this case is equivalent to "also." The language is clear and, unlike the attestation clause in
the present case, does not necessitate any correction. In the body of the will the testatrix stated that she
signed in the presence of each and all of the three witnesses. This was considered as a corroboration, but
it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October 18, 1939; 68
Phil., 745), the attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento en
presencia de todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el presente
cada uno en presencia de los otros, o de los demas y de la del mismo testsador, Valerio Leynez.
El testamento consta de dos (2) paginas solamente.
The objection was that the attestation clause did not state that the testator and the witnesses signed
each and every page of the will. This fact , however, appears in the will itself. It is clear, therefore, that
in case of the will complied with all the requisites for its due execution. In the instant case, essential
words were omitted.
In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23, April 18, 1939),
the attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. Emiliano Alcala su
ultima voluntad o testamentao compuesto de cuatro paginas incluida ya esta clasula de
atestiguamiento. Que estabamos presentes en el momento de leer y ratificar el que el
testamento arriba mencionado es su ultima voluntad o testamento compuesto de cuatro
paginasen papel de maquinilla. Que igualmente estabamos presentes cuando el firmo este
documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien en
presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de esta

escritura o testamento. En su testimonio firmamos abajo en prsencia del testador y de cada uno
de nosotros.
The above attestation clause is substantially perfect. The only clerical error is that it says "testador"
instead of "testamento" in the phrase "cada pagina del testador." The word "tambien" renders
unnecessary the use of the verb "firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the attestation clause did
not state the number of pages of the will. However, it was held that this deficiency was cured by the will
itself, which stated that it consisted of three pages and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947), decided by the
Court of Appeals, the attestation clause (translated in Spanish) reads as follows:
Nosotros, los testigos, certificamos que este que hemos firmado es el testamento y ultima
voluntad, que se ha redactado en cuatro paginas, de Numeriano Rallos, quien despues de leer y
de leer y de leerle el mencionado testamento, y despues de que ella dio su conformidad, firmo y
marco con su dedo pulgar derecho en nuestra presencia y en presencia de cada uno de nosotros,
que asimismo cada uno de nosotros, los testigos, firmamos enpresencia de la testadora y en
presencia de cada uno de nosotros.
It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the
witnesses of each and every page of the will, but the omission is cured by the fact that their signatures
appear on every page. This attestation clause is different from that involved in the present case.
There is no reason why wills should not be executed by complying substantially with the clear requisites
of the law, leaving it to the courts to supply essential elements. The right to dispose of property by will is
not natural but statutory, and statutory requirements should be satisfied.
The right to make a testamentary disposition of one's property is purely of statutory creation, and
is available only upon the compliance with the requirements of the statute. The formalities which
the Legislature has prescribed for the execution of a will are essential to its validity, and cannot
be disregarded. The mode so prescribed is the measure for the exercise of the right, and the heir
can be deprived of his inheritance only by a compliance with this mode. For the purpose of
determining whether a will has been properly executed, the intention of the testator in executing
it is entitled to no consideration. For that purpose only intention of the Legislature, as expressed
in the language of the statute, can be considered by the court, and whether the will as
presented, shows a compliance with the statute. Estate of Walker, 110 Cal., 387, 42 Pac., 815,
30 L. R. A., 460, 52 Am. St. Rep. 104. In re Seaman's Estate, 80 Pac., 700, 701.)
In interpreting the legislature's thought, courts have rigidly opposed any exception tending to
weaken the basic principle underlying the law, the chief purpose of which is to see that the
testator's wishes are observed. It is possible, in some or many cases, a decedent may have
thought he had made a will, but the statute says he had not. The question is not one of his
intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills . .
. truly expressing the intertions of the testator are made without observations of the required
forms; and whenever that happens, the genuine intention is frustrated. . . . The Legislature . . .
has taught of it best and has therefore determined, to run the risk of frustrating (that intention, .
. . in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the
absence of forms. . . . The evil probably to arise by giving to wills made without any form, . . ."
or, in derogation of testator's wishes, fraudulently imposing spurious wills on his effect on his
estate. Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533.

It has always been the policy of this court to sustain a will if it is legally possible to do so, but we
cannot break down the legislative barriers protecting a man's property after death, even if a
situation may be presented apparently meritorious. (In Re: Maginn, 30 A. L. R., pp. 419, 420.)
In view of the foregoing, the decision appealed from is reversed, denying the probate of the alleged will
and declaring intestate the estate of the deceased Carlos Gil. With costs against the appellee. It is so
ordered.

Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions
TUAZON, J., dissenting:
The decision takes for granted that the will was written just as it was copied in the stipulation of facts by
the parties. But counsel for appellee makes the correctness of the copy an issue thereby raising the
question of not whether the burnt will possessed the statutory requirements but whether the copy is
erroneous. Since this is a chief feature on which the appellee's case is built; since, in fact, the objection
to form of the attestation clause, with which the decision wholly deals, would disappear if the appellee's
contention were well founded, it is proper that in this dissenting opinion we should accord the matter at
least a passing notice.
It may be stated as background that the original of the will was filed in the Court of First Instance of
Manila in 1943; that in 1945, before the will came up for probate, it was destroyed by fire or looters; that
in the probate proceeding after liberation, the parties submitted an agreed statement of facts in which
the will was reproduced ascopied in the record on appeal in another case docketed in this court on appeal
as G.R. No. L-254 and decided on April 30, 1948. It further appears from the record of that case and
from the decision of this court that the controversy there concerned the right of a nephew of the testator
to impugn the will, it being alleged that he was not a legal heir and had no interest in the probate.
As transcribed in the majority decision, it will be seen that the attestation clause is truncated and
meaningless. The last of the compound sentence in incomplete, lacking an adjective phrase. Counsel for
appellee contends that the phrase "ha sido firmado por el testador" or equivalent expression between the
words "del mismo" and the words "en nuestra presencia" should be inserted if the sentence is to be
complete and have sense. The attestation clause with the inclusion of the omitted phrase, which we
italicize should read thus:
Nosotros, los que suscribimos, todos mayores de edad, certificamos que el testamento que
precede escrito en la lengua castellana que conoce la testador, compuesto de las paginadas
utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en la
parte superior de la casilla, asi como todos las hojas del mismo (Ha sido firmado por el testador)
en nuestra presencia y que cada de nosotros hemos atestiguado y firmado dicho documento y
todas las hojas del mismo presencia del testador y en la de cada uno de nosotros.
It seems obvious that the missing phrase was inadvertently left out. The probabilities of error in the copy
are enhanced by the fact that the form of the will was not in controversy. The form of the will being
immaterial, it is easily conceivable that little or on care was employed in the copying thereof in the
pleading or record on appeal above mentioned. The absence of the signature of the testator on the first

page of the copy is an additional proof that little or on pain was taken to insure accuracy in the
transcription. The appearance of "la testadora" in the copy instead of "el testador" is another.
Quite aside from all this, the testator was presumed to know the law, as the decision says. Certainly,
Attorney Mariano Omaa, who drafted the whole instrument and signed it as an attesting witness, knew
the law and, by the context of the whole instrument, has shown familiarity with the rules of grammar and
ability to express his idea properly.
Read in the light of these circumstances without mentioning the evidence or record, not objected to,
that the testator signed the will in the presence of the attesting witnesses so important an omission as
to make the sentence senseless granting such omission existed in the original document-could not
have been intentional or due to ignorance. The most that can be said is that the flaw was due to a
clerical mistake, inadvertance, or oversight.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the record on
Appeal" above mentioned is bound by the agreement. This is not an absolute rule. The binding effect of a
stipulation on the parties does not go to the extent of barring them or either of them from impeaching it
on the score of clerical error or clear mistake. That there was such mistake, is indubitable. It is
noteworthy that the opponent and appellant herself appears not to have noticed any defect in the
attestation clause as copied in the stipulation. It would seem that in the court below she confined her
attack on the will to the alleged failure of the testator to sign the first page. We say this because it was
only the alleged unsigning of the first page of the document which the trial court in the appealed decision
discussed and ruled upon. There is not the slightest reference in the decision, direct or implied, to any
flaw in the attestation clause which is by far more important than the alleged absence of the testator's
signature on the first page.
As stated the problem posed by the omission in question is governed, not by the law of wills which
requires certain formalities to be observed in the execution, but by the rules of construction applicable to
statues and documents in general. And this rule would obtain even if the omission had occurred in the
original document and not in the copy alone. In either case, the court may and should correct the error
by supplying the omitted word or words.
In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su redaccion
se ha incurrido en omisiones que la razon y el sentido comon pueden suplirlas sin alterar ni
tergiversar la intencion tanto del testador como la de los tres testigos que intervinieron en el
otorgamiento de la misma. Teniendo en cuenta la fraselogia de la segunda parte de la clausula
se observara que las omisiones, aunque son substanciales, consisten en meros errores
gramaticales que los tribunales, en el ejercicio de su discrecion y en la aplicacion de las reglas de
interpretacion de documentos, pueden subsanarlos para dar efectividad a la intencion y hacer
que el conjunto de los terminos de la clausula de atestacion surtan sus efectos.
La interpritacion que se acaba de bar a la clausula de atestacion y la correccion de los errores
gramaticales de que misma adolece, incluyendo la insercion del verbo "firmamos" que se omitio
involuntariamente, esta de acuerdo con las reglas fundamentals de interpretacion de documentos
segun las cuales se debe hacer prevalecer siempre la intencion del que haya redactado el
instrumento (art. 288, Cod. de Proc. Civ.; Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., sec. 187,
pags. 225, 226.)
La solucion que se acaba de bar al asunto es la que se halla mas conforme con la justificia en
vista de que se ha presentado prueba alguna que insinue siquiera que en el otorgamiento del

testamento se ha cometido dolo o fraude con el animo de perjudiar a cualquiera. (Testamentaria

de Emiano Alcala, 40 G. O., 14. Suplemento, No. 23, pags. 131, 132.)
From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court whenever
necessary to effectuate the testator's intention as expressed in the will; but not where the effect of
inserting the words in the will would alter or defeat such intention, or change the meaning of words that
are clear and unequivocal." On pages 50, 51, the same work says: "To aid the court in ascertaining and
giving effect to the testator's intention in the case of an ambiguous will, certain rules have been
established for guidance in the construction or interpretation to be placed upon such a will, and in
general a will should be construed according to these established rules of construction." Speaking of
construction of statutes which, as has been said, is applicable to construction of documents, the same
work, in Vol. 59, p. 992, says: "Where it appears from the context that certain words have been
inadvertently omitted from a statute, the court may supply such words as are necessary to complete the
sense, and to express the legislative intent.
Adding force to the above principle is the legal presumption that the will is in accordance with law. (2
Page on Wills, 840, 841; 57 Am. Jur., 720.)
Let us assume, for the purpose of this decision only, that the attestation clause was drawn as the
draftsman intended, that the mistake in language in said clause was not inadvertent, and consider the
case on the premise from which the court has approached it; is the decision well grounded, at least in the
light of this court's previous decisions?
At the outset, it should be pointed out that as early as 1922 a similar case, in which the validity of the will
was sustained, found its way into this court. (Aldaba vs. Roque, 43 Phil., 378). The case was more than
four-square behind the case at bar. There the departure from the statutory formality was more radical, in
that the testator took charge or writing the entire attestation clause in the body of the will, the witnesses
limiting their role to signing the document below the testator's signature. Here, at most, the testator took
away from the witness only a small part of their assigned task, leaving them to perform the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in banc,
through Mr. Justice Villamor said (syllabus): "When the attestation clause is signed by the witnesses to
the instruments besides the testator, such attestation clause is valid and constitutes a substantial
compliance with the provisions of section 1 of Act No. 2645, even though the facts recited in said
attestation appear to have been make by the testator himself."
That was good doctrine when it was announced. We think it is good law still. That ruling should set the
present case at rest unless the court wants to discard it. On the possibility that this is the intention, we
will dwell on the subject further.
This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil., 437, "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." In the Abangan case, unanimous court, speaking through Mr.
Justice Avancea, later Chief Justice, observed: "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 primodial 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 last
will, must be disregarded."
Subsequent decisions which followed and adopted the Abangan principle were numerous: Avera vs.
Garcia(1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922,) 43 Phil.,
494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil., 922; Nayve
vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs. Cartegana (1931), 56
Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de M. Ozoa (1933), 57 J. F.,
1007; Sebastian vs. Paganiban(1934), 59 Phil., 653; Rodriguez vs. Yap (1939)1, 40 Off. Gaz., 1st Suppl.
No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st Suppl. No. 3, p. 196; Leynez vs. Leynez (1939)3,
40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940)4, 40 Off. Gaz., 7th Suppl. No. 11, p.
215; Sabado vs. Fernandez (1941)5, 40 Off. Gaz., 1844;Mendoza vs. Pilapil (1941)6 40 Off. Gaz.,
1855; Alcala vs. De Villa (1941)7, 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948)8,
46 Off. Gaz., Suppl. No. 1, p. 211.
The majority decision says, and we quote: "If we cure a deficiency by means of inferences, when are we
going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line?"
These same questions might well have been asked in the case above cited by the opponents of the new
trends. But the so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to
serious consequences. The decisions we have cited to tell us when and where to stop; the dividing line is
drawn with precision. They say "Halt" when and where evidence aliunde to fill a void in any part of the
document is attempted. They only permit a probe, an exploration within the confines of the will, to
ascertain its meaning and to determine the existence or absence of the formalities of law. They do not
allow the courts to go outside the will or to admit extrinsic evidence to supply missing details that should
appear in the will itself. This clear, sharp limitation eliminates uncertainly and ought to banish any fear of
dire results.
The case at hand comes within the bounds thus defined. If the witnesses here purposely omitted or
forgot that the testator signed the will in their presence, the testator said that he did and the witnesses
by their signatures in the will itself said it was so. No extraneous proof was necessary and none was
introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to
unfortunate consequences. It was the realization of the injustice of the old way that impelled this court,
so we believe, to forsake the antiquated, outworn worship of form in preference to substance. It has
been said, and experience has known, that the mechanical system of construction has operated more to
defeat honest wills than prevent fraudulent ones. That, it must be conceded, is the effect in this case of
this court's rejection of the will under consideration. For the adverse party concedes the genuineness of
the document. At least, the genuineness is super obvious, and there is not the slightest insinuation of
undue pressure, mental incapacity of the testator of fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like
lifting one's self by his own bootstraps." The simile, we say with due respect, does not look to us quite
well placed. Under physical law a man cannot raise his body from the ground by his own bare hands
without the aid of some mechanical appliance, at least not for more than a flitting moment. But there is
no impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive law.
The rationale of our dissent is that he is not. If we were to make a metaphorical comparison, it would be
more appropriate to say that a man can and generally does himself pull the bootstraps to put the boots
on.
Coming to execution of wills, we see no legitimate practical reason for objecting to the testator instead of
the witnesses certifying that he signed the will in the presence of the latter. The will is the testator's and

the intervention of attesting witnesses is designed merely to protect the testator's and not anybody else's
interest.
If the sole purpose of the statute is to make it certain that the testator has definite and complete
intention to pass his property, and to prevent, as far as possible, any chance of substituting one
instrument for another (1 Page on Wills, 481), What better guaranty of the genuineness of the will can
there be than a certification by the testator himself in the body of the will so long as the testator's
signature is duly authenticated? Witnesses may sabotage the will by muddling it or attestation clause. For
the testator, who is desirous of making a valid will, to do so would be a contradiction. If the formalities
are only a means to an end and not the end themselves, and that end is achieved by another method
slightly different from the prescribed manner, what has been done by the testator and the witnesses in
the execution of the instant will should satisfy both law and conscience. The chief requirements of
statutes are writing, signature by the testator, and attestation and signature of three witnesses. Whether
the courts profess to follow the harsher rule, whether to follow the milder rule, they agree on one thing
that as long as the testator performs each of those acts the courts should require no more. (1 Page on
Wills, 481, 484.)

Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.

RESOLUTION

March 20, 1953

TUASON, J.:
This appeal is before us on a motion for reconsideration of this court's decision. Whereas formerly six
justices voted for reversal and five for affirmance of the probate court's order admitting the will to
probate, the vote upon reconsideration was six for affirmance and five for reversal, thereby making the
dissenting opinion, which had been filed, the prevailing rule of the case. Under the circumstances, this
resolution will largely be confined to a restatement of that dissenting opinion.
The will in question was presented for probate in the Court of First Instance of Manila in 1943 with
Roberto Toledo y Gil, decedent's nephew, and Pilar Gil Vda. de Murciano, decedent's sister opposing the
application. Toledo's legal right to intervene was questioned by the proponent of the will, and the
objection was sustained in an order which was affirmed by this court in G. R. No. L-254. As a result of the
latter decision, Toledo was eliminated from the case and did not appear when the trial was resumed.
The proceeding seems to have held in abeyance pending final disposition of Toledo's appeal, and early in
1945, before the application was heard on the merit, the record, along with the will, was destroyed,
necessitating its reconstitution after liberation. In the reconstitution, a stipulation of facts was submitted
in which, according to the appealed order, "both parties . . . agreed that the will as transcribed in the
record on appeal in Case G. R. No. L-254 is true and a correct copy.
The will consisted of only two pages, and the attestation clause as thus copied reads:
NOSOTROS los que suscribimos, todos mayores de edad, certificamos: que el testamento que
precede escrito en la lengua castellana que canoce la testador, compuesto de dos paginas utiles

con la clausula de atestigamiento paginadas correlativamente en letras y numeros en la parte

superior de la casilla, asi como todas las hojas del mismo, en nuestra presencia y que cada uno
de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA.
(Fdo.) RAMON MENDIOLA.
(Fdo.) MARIANO OMAA
It will be noted from the above copy that the last of the compound sentence is truncated and
meaningless. This defect is the main basis of the appellant's sole assignment of error.
Counsel for appellee contend that the phrase "han sido firmadas por el testador" or equivalent expression
between the words "del mismo" and the words "en nuestra presencia" should be inserted if the
attestation clause is to be complete and have sense. With this insertion the attestation clause would read
". . ., asi como todas las hojas del mismo han sido firmadas por el testador en nuestra presencia . . ."
The point is well taken.
It seems obvious that the missing phrase was left out from the copy. The probabilities of error in the
copy are enhanced by the fact that the form of the Will was not controversy in Toledo's appeal. The form
of the will being immaterial, it is easily conceivable that little or no care was employed in transcribing the
document in the agreement or record on appeal. The absence of the signature of the testator on the first
page of the copy is an additional proof that little or no pain taken to insure accuracy in the transcription.
The appearance of "la testadora" in the copy instead of "el testador" is another indication of the haste
and carelessness in the transcription.
Quite aside from all this, the testator was presumed to know the law, as the trial court says. Certainly,
Attorney Mariano Omaa, who drew the instrument and signed it as an attesting witness, knew the law
and, by the context thereof, has shown familiarity with the rules of grammar and ability to express his
idea properly. In the light of these circumstances and of further fact that the clause was brief and, by its
importance, must have been written with utmost concern, so important an omission as to make the
clause or sentence senseless could not have been made, intentionally or otherwise, in the original.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the Record
on appeal" is bound by the agreement. This is not an absolute rule. The binding effect of a stipulation on
the parties does not go to the extent of barring either of them from impeaching it on the score of clerical
error or clear mistake. The mistake just pointed out clearly brings the case within the exceptions of the
rule. The able counsel for the proponent of the will could not possibly have subscribed to the agreement
if they had noticed the incomplete sentence in the copy without making an objection or reservation.
The problem posed by the omission in question is governed, not by the law of wills which requires certain
formalities to be fulfilled in the execution, but by the rules of construction applicable to statutes and
documents in general. And this rule would obtain whether the omission occurred in the original document
or in the copy alone. In either case, the court may and should correct the error by supplying the omitted
word or words.
In Testamentaria del finado Emiliano Alcala, a similar situation arose and the court said:

Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su redaccion
se ha incurrido en omisiones que la razon y el sentido cumon pueden suplirlas sin altenar ni
tergiversar la intencion tanto del testador como la de los tres testigos que intervenieron en el
otorgamiento de la misma. Teniendo en cuenta la fraseologia de la segunda parte de la clausula
se observara que las omisiones, aunque son substanciales, consisten en meros errores
gramaticales que los tribunales, en el ejercicio de su discrecion y en la aplicacion de las reglas de
interpretacion de documentos, pueden subsanarlos para dar efectividad a la intencion y hacer
que el conjunto de los terminos de la clausula de atestacion surtan efectos.
La interpretacion que se acaba de dar a la clausula de atestacion y la correccion de los errores
gramanticales de que misma adolece, incluyedo la insercion del verbo "firmamos" que se omitio
involuntariamente, esta de acurdo con las reglas fundamentales de interpretacion de documentos
segun las cuales se debe hacer prevalecer siempre la intencion del que haya redactado el
instrumento (art 286, Cod. de Proc. Civil; Pecson contra Coronel, 45 Jur. Fil., 224; 28 R. C. L.,
sec. 187, pages. 225, 226).
La solucion que se acaba de dar al asunto es la que se halla mas conforme con la justicia en vista
de que no se ha presentado prueba alguna que insinue siquiera que en el otorgamiento del
testamiento se ha cometido dolo o fraude con el animo de perjudicar a cualquiera. Testamentaria
de Emiliano Alcala, 40 Gaz. Of., 14. Supplemento, No. 23, pags. 131, 132.)
From 69 C. J. 82, 83, we quote: "Words omitted from a will may be supplied by the court whenever
necessary to effectuate the testator's intention as expressed in the will: but not where the effect of
inserting the words in the will would alter or defeat such intention, or change the meaning of words that
are clear and unequivocal." On pages 50 and 51, the same work says: "To aid the court in ascertaining
and giving effect to the testator's intention in the case of an ambiguous will, certain rules been
established for guidance in the construction or interpretation to be placed upon such a will, and in
general a will should be construed according to these established rules of construction." And referring to
construction of statues which, as has been said, is applicable to construction of documents, C. J. S., in
Vol. 59, p. 992, tells us that "Where it appears from the context that certain words have been
inadvertently from a statute, the court may supply such words as are necessary to complete the sense,
and to express the legislative intent."
Adding force to the above principle is the legal presumption that the will is in accordance with law. (2
Page on Wills 840; 57 Am. Jur., 720.)
But let it be assumed, for the sake of this decision only, that the attestation clause was drawn exactly as
it was copied in Toledo's record on appeal, was the mistake fatal? Was it, or was it not, cured by the
testator's own declaration? to wit: "En testimonio de lo cual, firmo este mi testamento y en el margen
izquierdo de cada una de sus dos paginas utiles con la clausula de atestiguamiento en presencia de los
testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi
presencia cada uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia 27 de marzo de
mil novecientos treinta y nueve." The answer is in the negative.
As early as 1922 a similar case, in which the validity of the will was sustained, found its way into this
court. SeeAldaba vs. Roque, 43 Phil., 378. That case was more than foursquare behind the case at bar.
There the departure from the statutory formality was more radical, in that the testator took charge of
writing the entire attestation clause in the body of the will, the witnesses limiting their role to signing the
document below the testator's signature. Here, at the most, the testator took away from the witnesses
only a small part of their assigned task, leaving to them the rest.

Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in banc,
through Mr. Justice Villamor said in the Adalba-Roque case (syllabus):
When the attestation clause is signed by the witnesses to the instruments, besides the testator, such
attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of Act
No. 2645, even though the facts recited in said attestation clause appear to have been made by the
testator himself.
That ruling should set the present case at rest unless we want to revert to the old, expressly abandoned
doctrine, in a long line of what we believe to be better-considered decisions.
This court noted in Dichoso de Ticson vs. De Gorostiza (1922), 57 Phil., 437, "that there have been
noticeable in the Philippines two divergent tendencies in the lie of wills the one being planted on strict
construction and the other on liberal construction. A late example of the former views be found in the
decision in Rodriguez vs. Alcala(1930), 55 Phil., 150, sanctioning a literal enforcement of the law. The
basic rule in the other direction, predicated on reason, is Abangan vs. Abangan (1919), 40 Phil., 476, oftcited approvingly in later decisions."
In the Abangan case, a unanimous court, speaking through Mr. Justice Avancea, later Chief Justice,
observed:
"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 primodial 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 last will, must be disregarded."
Subsequent decisions which followed and adopted the Abangan principle were: Avera vs. Garcia (1921),
42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922), 43 Phil., 494; Pecson vs.
Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil., 922; Neyve vs.
Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs. Cartagena (1931), 56
Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de N. Ozoa (1933), 57 J. F.,
1007; Sebastian vs. Panganiban (1934), 59 Phil., 653;Rodriguez vs. Yap (1939), 40 Off. Gaz., 1st Suppl.
No. 3, p. 194; Grey vs. Fabia (1939), 40 Off. Gaz., 1st Suppl., No. 3, p. 196; Leynez vs. Leynez (1939),
40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940), 40 Off. Gaz., 7th Suppl. No. 11, p.
215; Sabado vs. Fernandez (1941), 40 Off. Gaz., 1844; Mendoza vs. Pilapil (1941), 40 Off. Gaz.,
1855; Alcala vs. De Villa (1941), 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948),
46 Off. Gaz., Suppl. No. 1, p. 211.
It is objected that "If we cure a deficiency by means of inferences, when are we going to stop making
inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same question
might well have been asked by the opponents of the new trends in the cases above cited. But the socalled liberal rule 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 within
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.

The case at hand comes within the bounds thus defined if the witnesses here purposely omitted or forgot
to say that the testator signed the will in their presence, the testator said that he did and the witnesses
by their signatures in the will itself said it was so. No extraneous proof was necessary and none was
introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to
unfortunate consequences. It was the realization of the injustice of the old way that impelled this court,
so we believe, to forsake the antiquated, outworn worship of form in preference to substance. It has
been said, and experience has shown, that the mechanical system of construction has operated more to
defeat honest wills than prevent fraudulent ones. That, must be conceded, would be the effect in this
case if the will under consideration were rejected. For the adverse party now concedes the genuineness
of the document. At any rate, the genuineness is super obvious, and there is not the slightest insinuation
of undue pressure, mental incapacity of the testator, or fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like
lifting one's self by his own bootstraps." The simile does not look to us quite well placed. There is no
impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive law. The
rationale of this decision is that he is not. If we were to make a metaphorical comparison, it would be
more correct to say that a man can and generally does himself pull the bootstraps when he puts his
boots on.
Coming to execution of wills, we see no legitimate, practical reason for objecting to the testator instead
of the witnesses certifying that he signed the will in the presence of the latter. The will is of the testator's
own making, the intervention of attesting witnesses being designed merely to protect his interest. If the
sole purpose of the statute in requiring the intervention of witnesses is to make it certain that the
testator has definite and complete intention to pass his property, and to prevent, as far as possible, any
chance of substituting one instrument for another (1 Page on Wills, 481), what better guaranty of the
genuineness of the will can there be than a certification by the testator himself in the body of the will so
long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling and
bungling it or the attestation clause. For the testator, who is desirous of making a valid will, to do so
would be a contradiction. If the formalities are only a means to an end and not the end themselves, and
that end is achieved by another method slightly from the prescribed manner, what has been done by the
testator and the witnesses in the execution of the instant will should satisfy both law and conscience.
A second ground of attack on the questioned will is that the first page or sheet thereof does not bear the
testator's signature. The discussion on the correctness of the copy of the attestation clause amply
answers this objection in fact, the appellee's case is much stronger on this point for the reason that there
is not only speculative but also positive basis for the conclusion that the testator's signature was affixed
to the first page of the original. Both the testator and the attesting witnesses stated in the will and in the
attestation clause, respectively, that the former signed both pages or sheets of the testament.
Upon the foregoing consideration, the order of the probate court is affirmed with costs.
A motion dated February 17, 1953, was filed after the motion for reconsideration was deliberated and
voted upon, in behalf of the minor children of Carlos Worrel, who was a residuary legatee under the will
and who is alleged to have died on February 6, 1949. The motion prays that a guardian ad litem be
appointed for the said children, and allowed to intervene and file "A Supplementary Memorandum in
Support of Appellant's (Appellee's?) Motion for reconsideration." Counsel for the appellant objects to the
motion on the ground that the movants having only a contingent interest under the will are not of right
entitled to intervene.

As this case has already been considerably delayed and thoroughly considered and discussed from all
angles, it is the sense of the court that the children's intervention with the consequent further delay of
the decision would not serve the best interest of the parties. For this reason, the motion is denied.

Paras, Feria, Montemayor, Bautista Angelo and Labrador, JJ., concur.

Padilla and Reyes, JJ., dissent.

JUGO, PABLO and BENGZON, JJ., dissenting:

I dissent on the ground set forth in my opinion rendered in this case.

G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents.

Rufino B. Javier Law Office for petitioner.

Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of
the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private
respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of
Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner
Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell
certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the
estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the
Court of Appeals, 2the alleged advances consisted of P58,147.40 spent for the payment of estate tax,
P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug,
he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank
of America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds
withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the
estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for
failure to include the sums in question for inventory and for "concealment of funds belonging to the
estate." 4

Vitug insists that the said funds are his exclusive property having acquired the same through a
survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement
provides:
We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now
or hereafter deposited by us or any or either of us with the BANK in our joint savings
current account shall be the property of all or both of us and shall be payable to and
collectible or withdrawable by either or any of us during our lifetime, and after the death
of either or any of us shall belong to and be the sole property of the survivor or
survivors, and shall be payable to and collectible or withdrawable by such survivor or
survivors.
We further agree with each other and the BANK that the receipt or check of either, any
or all of us during our lifetime, or the receipt or check of the survivor or survivors, for
any payment or withdrawal made for our above-mentioned account shall be valid and
sufficient release and discharge of the BANK for such payment or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate
of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in
the total sum of P667,731.66 ... ."7
On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private
respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis
causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil
Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under
the provisions of Article 133 of the Civil Code. 9
The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II,
petition) is hereby set aside insofar as it granted private respondent's motion to sell
certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged
advances to the estate, but the same order is sustained in all other respects. In addition,
respondent Judge is directed to include provisionally the deposits in Savings Account No.
35342-038 with the Bank of America, Makati, in the inventory of actual properties
possessed by the spouses at the time of the decedent's death. With costs against private
respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our
decisions inRivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained
the validity of "survivorship agreements" and considering them as aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A
will has been defined as "a personal, solemn, revocable and free act by which a capacitated person
disposes of his property and rights and declares or complies with duties to take effect after his
death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies
subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied
on, Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship agreement purports
to deliver one party's separate properties in favor of the other, but simply, their joint holdings:

xxx xxx xxx

... Such conclusion is evidently predicated on the assumption that Stephenson was the
exclusive owner of the funds-deposited in the bank, which assumption was in turn based
on the facts (1) that the account was originally opened in the name of Stephenson alone
and (2) that Ana Rivera "served only as housemaid of the deceased." But it not
infrequently happens that a person deposits money in the bank in the name of another;
and in the instant case it also appears that Ana Rivera served her master for about
nineteen years without actually receiving her salary from him. The fact that subsequently
Stephenson transferred the account to the name of himself and/or Ana Rivera and
executed with the latter the survivorship agreement in question although there was no
relation of kinship between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the bank account. In the
absence, then, of clear proof to the contrary, we must give full faith and credit to the
certificate of deposit which recites in effect that the funds in question belonged to Edgar
Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that
either of them could withdraw any part or the whole of said account during the lifetime
of both, and the balance, if any, upon the death of either, belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan,

18

it was held:

xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to
article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to
give or do something as an equivalent for that which the other party is to give or do in
case of the occurrence of an event which is uncertain or will happen at an indeterminate
time. As already stated, Leonarda was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of Exhibit C, Juana would become the
owner of the house in case Leonarda died first, and Leonarda would become the owner
of the automobile and the furniture if Juana were to die first. In this manner Leonarda
and Juana reciprocally assigned their respective property to one another conditioned
upon who might die first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This contract, as any other
contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before
Juana, the latter thereupon acquired the ownership of the house, in the same manner as
Leonarda would have acquired the ownership of the automobile and of the furniture if
Juana had died first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to
be conjugal, having been acquired during the existence of the marita. relations. 20
Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take
effect after the death of one party. Secondly, it is not a donation between the spouses because it
involved no conveyance of a spouse's own properties to the other.
It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as
held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law

on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal
property, say, by way of a joint and several bank account, more commonly denominated in banking
parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No.
35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not
dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation.
And since the funds were conjugal, it can not be said that one spouse could have pressured the other in
placing his or her deposits in the money pool.
The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality,
that contract imposed a mere obligation with a term, the term being death. Such agreements are
permitted by the Civil Code.24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind
themselves to give or to do something in consideration of what the other shall give or do
upon the happening of an event which is uncertain, or which is to occur at an
indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening
of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship
agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and
insurance have been held to fall under the first category, while a contract for life annuity or pension
under Article 2021, et sequentia, has been categorized under the second. 25 In either case, the element
of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other.
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se not contrary to law its operation or
effect may be violative of the law. For instance, if it be shown in a given case that such
agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of
creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon
such grounds. No such vice has been imputed and established against the agreement
involved in this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement had been executed for such unlawful
purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and
conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has
acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the
Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by
Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no
more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution,
dated February 9, 1988, are SET ASIDE.

No costs.
SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Regalado JJ., concur.

G.R. No. 1027

May 19, 1903

RAMON DEL ROSARIO, plaintiff-appellee,

vs.
CLEMENTE DEL ROSARIO, defendant-appellant.

Lucas Gonzalez for appellant.

Rodriguez and Foz for appellee.
WILLARD, J.:
I. Don Nicolas del Rosario died in this city on July 14, 1897, leaving a last will, the eighth, ninth, eleventh,
and eighteenth clauses of which are as follows:
Eight. The testator declares that the 5,000 pesos which he brought to his marriage he hereby
bequeathes to his nephew Enrique Gloria y Rosario and Ramon del Rosario, natural children of
his brother Clemente del Rosario, notwithstanding the fact that they purport to be the issue of
the marriage of Escolastico Gloria and Rosendo del Rosario, successively.
Ninth. The testator declares that the said sum of 5,000 pesos is to be divided, 3,000 pesos for
the first named and 2,000 pesos for the second named, the delivery of the said sums to be
effected by the wife of the testator, provided that these young men behave themselves as they
have done up to the present time, and do not cease to study until taking the degree of bachelor
of arts, and then take a business course, if their health will permit, their support to be paid out of
the testamentary estate and they to live in the house of the widow.
Eleventh. The testator declares that in a case the said young men should be still engaged in
study at the time of the death of the testator's wife, they shall continue to be supported at the
expense of the testamentary estate, without deducting such expenses from their legacies, if they
should desire to continue the same studies.
Eighteenth. The testator further states that although his wife is at the present time fifty-five
years of age, and consequently is not likely to marry again, as she herself says, nevertheless it is
impossible that the opposite of what she asserts might occur, and, if so, then it is to be regarded
as sufficient reason to authorize the young men Ramon and Enrique, so often referred to,
separate from their aunt, in which event they are to be supported by the testamentary estate on
a small allowance of twenty-five pesos per month, provided that they continue their studies or
should be in poor health, this without in any respect reducing the amount of their shares.
Don Ramon del Rosario, one of the persons mentioned in these clauses, brought this action in 1902
against Don Clemente del Rosario, the then executor, asking, among other things, that the said executor

pay him an allowance from the death of the widow of the testator at the rate of 75 pesos a month, and
that the executor allow him to live in the house in which the widow was living at that time.
The widow of the testator, Doa Honorata Valdez, died on July 7, 1900.
The court below ordered judgment in respect to this allowance, and the right to live in the house as
prayed for by the plaintiff. In this we think that the court erred.
While by the eight clause the support of the plaintiff and of Don Enrique Gloria is charged against the
estate, yet the eleventh clause makes it plain that this unconditional right was to last only during the
lifetime of the widow. After her death the right to this allowance is made to depend on the continuance
of their studies. That this is the correct construction of the will is made more plain by the eighteenth
clause above quoted. In the case of their separation from their aunt by her remarriage, they were
entitled to the specified allowance of 25 pesos a month only on condition that they were pursuing their
studies or were in poor health.
The court did not find that the plaintiff was still pursuing his studies. On the contrary, he found that the
plaintiff had fulfilled the condition by obtaining the degree of bachelor of arts in 1898.
The right to live in the house of the widow terminated at her death.
II. The seventh clause of the will of Don Nicolas is as follows:
Seventh. The testator states that in the present condition of his affairs he has acquired, during
his married life, some tens of thousands of dollars, of which one-half belongs to his wife as her
share of the profits of the conjugal partnership, and the other half belongs to him as his share of
such profits; but, in view of the agreement entered into between the two spouses, the property
will not be partitioned, and upon the death of the testator all the said property will pass to his
wife, in order that she may enjoy the revenue therefrom during her lifetime, but without
authority to convey any of such property, inasmuch as she, being grateful for the benefit
resulting to her, binds herself in turn to deliver said property at her death to the testator's
brothers, Don Clemente del Rosario and Don Rosendo del Rosario, and his sister, Doa Luisa del
Rosario, who shall enjoy the revenue from the said property during their respective lives, and
shall then, in turn, transmit the same to their male children, both those born in wedlock and
natural children who may be known.
This was later modified by a codicil, as follows:
That in seventh clause of said testament he desires and wills that in the distribution of his
property and that of his wife among the male children of his brothers, Clemente and Rosendo del
Rosario, and those of his sister, Luisa del Rosario, in such distribution his nephews Enrique Gloria
and Ramon del Rosario must be understood to be included, in addition to the legacies mentioned
in his said testament.
The thirteenth clause of his will was as follows:
The testator declares that in case Doa Luisa del Rosario should die before or after the wife of
the testator, then the legacy due her by virtue of this will shall not pass in its entirety to her male
children, except as to the sum of 1,000 pesos, the remainder to pass to Don Enrique Gloria
Rosario and Don Ramon del Rosario, natural sons of Don Clemente del Rosario, as already
stated.

This was modified by the codicil as follows:

That in the thirteenth clause the testator provided that upon the death of his sister, Luisa del
Rosario, her male children were to inherit from her up to the sum of 1,000 pesos, and this he
rectifies, for better understanding, to the effect that it is his will that the remainder of all her
portion should be divided into equal parts, one-third to go to his brother Don Clemente del
Rosario and the other two-thirds to be divided equally among his said nephews, Enrique Gloria
and Ramon del Rosario.
Doa Honorata Valdez made her will three days after that of her husband. The seventh clause is as
follows:
The testatrix declares that she institutes her beloved husband, Don Nicolas del Rosario y Alejo, as
her heir to all the property which she may have at her death, and in the unexpected case of the
death of her said husband then she institute as heirs her brothers-in-law, Don Rosendo and Don
Clemente del Rosario y Alejo, and her sister-in-law, Doa Luisa del Rosario, who shall enjoy the
usufruct during their lifetime of all the revenue of the said property. Upon the death of any of
them, the property shall pass to the male children of her said brothers-in-law and sister-in-law,
the issue of lawful marriage or natural children who may be known; that upon the death of her
sister-in-law, Doa Luisa, then her share shall not pass in its entirety to her male children, except
the sum of 1,000 pesos, Enrique Gloria and Don Ramon del Rosario, natural children of her
brother-in-law Don Clemente del Rosario.
Doa Luisa died one yea after Don Nicolas and two years before the death of Doa Honorata, which, as
has been said, occurred on July, 7, 1900.
Don Enrique Gloria died on July 6, 1900.
Don Ramon del Rosario claims in this action that he is now entitled, by virtue of both wills, to a certain
part of the share of the estates left to said Doa Luisa during her life, and he asks that the defendant be
directed to render accounts and to proceed to the partition of the said estates. The controversy between
the parties upon this branch of the case is as follows:
The defendant claims that the plaintiff is entitled to nothing under the wills, because the gift to him was
conditional, the condition being that he should be the natural son of Don Clemente, recognized by the
latter as such in one of the ways pointed out by the Civil Code; that he can not prove such recognition,
the parol evidence presented at the trial being prohibited by said Code, and that he has therefore not
complied with the condition.
The plaintiff claims that such evidence was proper, that both wills state that Don Ramon del Rosario is
the natural son of Don Clemente, and that in any event the bequests are made to the plaintiff by name.
The court below, holding the parol evidence immaterial, ordered judgment for the plaintiff as prayed for.
(1) So far as the disposition of that part of the inheritance left in the aunt's will to Doa Luisa for life is
concerned, the question is free from doubt. It is distinctly declared that Ramon del Rosario and Enrique
Gloria shall take certain parts of it after 1,000 pesos have been deducted. They are pointed out by name
as the legatees. It is true that they are called the natural sons of Don Clemente. But this is merely a
further description of persons already well identified, and, if false, can be rejected in accordance with the
provision of article 773 of the Civil Code, which by article 789 is applicable to legatees.

(2) The ninth clause of the will of Doa Honorata is as follows:

The testatrix bequeaths the sum of 3,000 pesos to her nephews Enrique Gloria and Ramon del Rosario in
equal parts that is, 1,500 pesos each.
The plaintiff was entitled to one-half of this legacy in his own right. This has been paid to him. Don
Enrique Gloria died before his the testatrix. By the provisions of articles 982 and 983 of the Civil Code the
right of accretion exists as to the other half in favor of the plaintiff and he is entitled to have it paid to
him.
(3) The will of Doa Honorata plainly declares that, on the death of any one of the life tenants, the male
children of such tenant shall inherit, and in respect to Doa Luisa it is expressly declared that this shall
take place whether she dies before or after the testatrix. The derecho de acrecer did not therefore exist
in favor of the other two life tenants, Don Clemente and Don Rosendo. "En la sucesion testada es ley
preferente la voluntad del testador, de modo que este prohibiendo expresamente el derecho de acrecer,
nombrando sustitutos, o marcando el destino especial de cada porcion vacante, excluye la aplicacion de
los articulos que vamos a examinar." (7 Manresa, Comentarios al Codigo Civil, p. 276.)
This right does, however, exist in the share of Doa Luisa in favor of the plaintiff, for the reasons stated
in connection with the legacy of 3,000 pesos.
(4) We have passed upon the rights of the plaintiff to the share of Doa Luis under the will
of Doa Honorata, because the interest is expressly left to him (en concepto de legado) as a legacy. This
is controlling. (5 Manresa, 315.)
These or equivalent words are wanting in the will of Don Nicolas. Applying article 668 of the Civil Code,
we must hold that any interest which the plaintiff may have taken in the share of Doa Luisa under the
will of Don Nicolas he took as an heir and not as a legatee.
The distinction between the two is constantly maintained throughout the Code, and their rights and
obligations differ materially. (Arts. 660, 668, 768, 790, 858, 891, 1003.)
(5) The legatee can demand his legacy from the heir or from the executor, when the latter is authorized
to give it. (Art. 885.) The powers given to the executors by the will of Doa Honorata are contained in
the fourteenth clause, which is as follows:
The testatrix appoints as the executors of her will, in the first place, her beloved husband, Nicolas
del Rosario y Alejo, in the second place her brother-in-law Clemente del Rosario, in the third
place her brother-in-law Rosendo del Rosario, in the fourth place Don Ramon del Rosario when
he shall attain his majority, all of them without bond and free from the obligation of terminating
the administration within the legal term. At her death they shall take possession of all such goods
and things as may be her property, and are hereby authorized fully and as required by law to
prepare an inventory of said property, and to effect the division and partition of the estate
among her heirs. She also authorizes them to execute and sign deeds of partition, sales with a
resolutory condition, cancellations, receipts, acquittances, and such other documents as may be
necessary.
The twenty-first clause of the will of Don Nicolas is substantially the same. Each will prohibited any
judicial intervention in the settlement of the estates.
The clause in the will of Doa Honorata which is a copy of that in the will of Don Nicolas is as follows:

The testatrix declares that she expressly prohibits any judicial intervention in this her will,
although minors, absentees, or persons under disability be interested therein, as it is her wish
and will that all the proceedings be conducted extrajudicially, and in case a family council should
be necessary, she designates the persons who, in accordance with the provisions of the Civil
Code now in force, should form such council, or else leaves their appointment to the discretion of
her executors.
If the executor was not authorized to pay these legacies, the heirs must pay them.
The life tenants and the heirs who take the remainder under these wills are numerous. If they did not
pay the legacies and did not agree upon an administrator, judicial intervention would be necessary, the
very thing which the testators had expressly prohibited. The important power of making the partition was
attempted to be given to the executors. In view of these considerations and a study of the whole will, we
hold that the executors are given power to pay the legacies.
The action, therefore, was properly directed against the executor so far as it related to the allowance and
the legacy of 3,000 pesos. As to these legacies, the action may be supported also under article 902, 2,
which allows executors to pay money legacies.
It was also properly directed against him, so far as it related to the share to which the plaintiff is entitled
under the will of Doa Honorata in the portion to Doa Luisa for life.
The provisions of articles 1025-1027 are no obstacle to this suit. That an inventory is being formed, or
that the creditors have not been paid, is a matter of defense which should have been set up in the
answer.
It was not properly directed against him in so far as it related to the similar share left to him by the will
of Don Nicolas. He took that as heir and not a legatee, and the heir can maintain no such action against
the executor.
The fact that the plaintiff under the will of Doa Honorata is a legatee of an aliquot part of the estate,
having become entitled to receive one-third of it on the death of Doa Luisa, does not prevent him from
maintaining this action against the executor. Though such a legatee closely resembles an heir, yet, like all
other legatees, he must seek his share from the heir or executor. (6 Manresa, 561.)
(6) While in this action he has a right to have his interest as legatee declared, yet it can not be delivered
to him without a partition of the estate.
It remains to be considered whether the executor has power to make the partition. Such power is
expressly given by the will. This provision is, however, void under the terms of article 1057 of the Civil
Code, which is as follows:
The testator may, by an act inter vivos or causa mortis, intrust the mere power of making the
division after his death to any person who is not one of the coheirs.
The provisions of this and the foregoing articles shall be observed even should there be a minor
or a person subject to guardianship among the coheirs; but the trustee must in such case make
an inventory of the property of the inheritance, citing the coheirs, the creditors, and the legatees.
Don Clemente, the executor, against whom the action was directed, was not only an heir as a life tenant
but also in the fee after his death of Don Rosendo if the latter died without issue. Upon the death of the

widow, Doa Luisa then being dead, it became his duty to divide the estate into three parts, or at least to
set off the third, which was to pass to the plaintiff by the death of the widow and Doa Luisa. In this
partition he was directly interested, for, with his brother Don Rosendo, he had a life interest in the part of
the estate not set off to the plaintiff. Article 1057 prohibited an heir from being contador for this very
reason, namely, that the partition should be made impartially.
Although the executor has no power to make the partition, the heirs can do so. Arts. 1058-1060, Civil
Code.)
The plaintiff is not bound to remain a co-owner with the other heirs. Being a legatee of an aliqout part,
he has the same right to seek a partition that an heir has. (7 Manresa, 578; art. 1051, Codigo Civil.) But
in so seeking it he must make parties to his suit all persons interested in the estate (7 Manresa, 577).
This he has not done in this suit, and he consequently is not entitled to the partition ordered by the court
below.
(7) We have held that the only thing that can be decided in this case is the rights of the plaintiff as
legatee.
The court below ordered the executor to render accounts of his administration of both estates.
As to the estate of Don Nicolas, the only thing here in question is the right to the allowance. As we hold
that the plaintiff is not entitled to it, he is not entitled to any statement of accounts as such pretended
legatee.
As to the estate of Doa Honorata, he is entitled to be paid a legacy of 1,500 pesos. Article 907 requires
the executor to render accounts to the heir, not to the legatee; and although by article 789 all of the
provisions of Chapter II (in which both articles are found) relating to heirs are made applicable to
legatees, we can not hold that this requires an executor to submit his accounts to one who has no
interest in the estate except to a money legacy when there is no suggestion that it will not be paid when
the right to it is established.
In respect to the share of Doa Luisa, there is reason for saying that a legatee on an aliquot part is
entitled to an accounting. But, inasmuch as in this case there can be no final determination of the rights
of the parties interested in the estate, because they are not all parties to this suit, the executor should
not in this suit be ordered to submit his accounts.
(8) The plaintiff in his complaint has limited himself to claiming the allowance, his rights to the share
of DoaLuisa, and the legacies left to him.
The question as to whether he would be entitled to any part of the share of Don Clemente upon the
latter's death, under the seventh clause of the two wills, was not presented by the complaint nor passed
upon by the court and is not before us for decision.
(9) The result of the foregoing considerations is:
1. The plaintiff is not entitled to any allowance under either will.
2. He is not entitled to live in the house No. 128 Calle Clavel.
3. He is entitled to be paid, under the ninth clause of the will of Doa Honorata, the sum of 1,500 pesos,
in addition to the 1,500 pesos already received under that clause.

4. He is entitled to the share of the estate left by the will of Doa Honorata to Doa Luisa during her life,
after deducting 1,000 pesos.
5. This share can not be set off to him in this suit, but only in a proceeding to which all persons
interested in the estate are parties.
6. His interest in the share left to Doa Luis during her life by the will of Don Nicolas can not be
determined in this suit.
7. The executor can not be required to render in this suit his accounts as such executor.
8. The plaintiff's rights under the seventh clause of the two wills, to the share left to Don Clemente for
life are not before us for decision.
III. After judgment had been rendered in the court below and a bill of exceptions allowed, but before the
record had been sent to this court, Don Clemente del Rosario, the defendant, died. After his death Don
Rosendo del Rosario, who was named in both wills to succeed to the executorship on the death of Don
Clemente, appeared in the court below and withdrew the appeal and bill of exceptions. Thereupon the
widow of Don Clemente, for herself and in representation of the minor son of her late husband, asked
and was granted leave to prosecute the appeal.
This ruling was correct. According to the Spanish authorities, anyone legally affected by the judgment
might appeal. According to the American authorities, if a trustee refuses to appeal, the beneficiary may
do so in his name.
That the son of Don Clemente has a direct interest in the question of the allowance of 75 pesos a month
to the plaintiff is plain. We have held that in respect to this allowance the executor represents the estate
and the judgment against him binds it.
It would be manifestly unjust to allow an executor, with perhaps only a slight personal interest in an
estate, by withdrawing an appeal, to fasten upon the estate a claim which, as we hold, it should not
bear.
IV. At the argument of this case on the merits, after the appellant had closed, the respondent made the
point for the first time that the appellant's brief contained no assignment of errors.
This is true. But a full assignment of errors is found in the bill of exceptions at pages 14 and 15. The
appellee answered the brief of the appellant without making any suggestion of this mistake. He has been
in no way prejudiced by it, and we can not affirm the judgment on this ground.
The judgment of the court below is reversed and the case remanded with directions to the court below to
enter judgment in accordance with this opinion. The costs of this instance will be equally divided between
the parties. So ordered.

Arellano, C.J., Cooper, Mapa and Ladd, JJ., concur.

Torres, J., did not sit in this case.

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.

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 coadministrators. 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.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L. and Felix,
JJ.,concur.

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.
6284,1just 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.

Separate Opinions
TORRES, J., concurring:
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.
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:
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.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements
appear:

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 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 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.
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.

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

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 can not 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-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."
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 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.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

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

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 partepraying 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 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.

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.
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.

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, 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.
SO ORDERED.

Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.

Teehankee, J, is on leave.

G.R. No. 16008

IN RE WILL OF THE DECEASED LUCINA ANDRADA, LUCILA ARCE, petitioner-appellant.

J. Dorado, J. Tirol, and J. Hontiveros for appellant.

STREET, J.:
Lucina Andrada died on June 5, 19919, in the Municipality of Capiz, Province of Capiz; and soon
thereafter a petition was presented to the Cour of First Instance of Capiz by Lucila Arce to establish a
document purporting to be the last will and testament of the deceased. Upon hearing the petition, his
Honor, Judge Antonio Villareal, declared that the document in question had not been executed in
conformity with the requirements of section 618 of the Coe of Civil Procedure, as amended by Act No.
2645 of the Philippine Legislature. He therefore refused to admit the purported will to probate, and the
petitioner appealed.

The attesting clause of the will in question is incorporated in the will itself, constituting the last paragraph
thereof; and its defect consists in the fact that it does not state the number of sheets or pages upon
which the will is written, though it does state that the testatrix and the instrumental witnesses signed on
every page, as is in fact obvious from an inspection of the instrument. Each of the pages moreover bears
successively the Visayan words, "isa," "duha," "tatlo," "apat," "lima," which mean respectively "one,"
"two," "three," "four," "five," Visayan being the dialect in which the instrument is written.

By section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is required that each and
every page of the will shall be numbered correlatively in letters and that the attesting clause shall state
the number of sheets or pages used.

Without decising in this case whether the will in question is rendered invalid by reason of the manner in
which the pages are numbered, the court is unanimous upon the point that the defect pointed out in the
attesting clause is fatal. The law plainly says that the attestation shall state the number of sheets or
pages used, the eident purpose being to safeguard the document from the possiblity of the interpolation
of additional pages or the omission of some of the pages actually used. It is true that this point is also
safeguarded by the other two requirements that the pages shall be consecutively lettered and that each
page shall be singed on the left margin by the testator and the witnesses. In light of these requirements
it is really difficult to see any practical necessity for the additional requirement that the attesting clause
shall state the number of sheets or pages used. Nevertheless, it cannot be denied that the last mentioned
requirement affords additional secuirty against the danger that the will may be tampered with; and as the
Legislature has seen fit to prescribe this requirement, it must be considered material.

In two cases we have held that the failure to comply with the strict requirements of this law does not
invalidate the instrument, but the irregularities presented in those cases were entirely rivial, the defect in
one case being that a willin which the dispositive part consisted of a single sheet was not signed in the
margin in addition to being signed at the bottom (In re will of Abangan, 40 Phil., 476); in the others, that
the pages comprising the body of the will were signed by the testator and witnesses on the right margin
instead of the left (Avera vs. Garcia and Rodriguez, p. 145, ante). In the case now before us the defect
is, in our opinion, of more significance; and the rule here applicable is that enunciated in Caraig vs.

Tatlonghari, R.G. No. 12558, decided March 23, 1918, not reported, and (In re estate of Saguinsim, 41
Phil., 875), in each of which the will was held to be invalid.
It results that the trial judge did not err in refusing probate of the will, and the judgment must be
affirmed. It is so ordered, with costs against the appellant.

Johnson, Araullo, Avancea and Villamor, JJ., concur.