FIRST DIVISION

[G.R. No. 147145. January 31, 2005]

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONGNOBLE, petitioner, vs. ALIPIO
ABAJA
and
NOEL
ABELLAR, respondents.
DECISION
CARPIO, J.:

The Case
Before the Court is a petition for review [1] assailing the Decision[2] of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of Appeals
sustained the Resolution[3] of the Regional Trial Court of Kabankalan, Negros
Occidental, Branch 61 (RTC-Kabankalan), admitting to probate the last will and
testament of Alipio Abada (Abada).

The Antecedent Facts

Abada died sometime in May 1940.[4] His widow Paula Toray (Toray) died
sometime in September 1943. Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja (Alipio) filed with the then Court of First
Instance of Negros Occidental (now RTC-Kabankalan) a petition, [5] docketed as SP
No. 070 (313-8668), for the probate of the last will and testament (will) of Abada.
Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja
(Eulogio) and Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong (Caponong) opposed the petition on the ground that Abada
left no will when he died in 1940. Caponong further alleged that the will, if Abada
really executed it, should be disallowed for the following reasons: (1) it was not
executed and attested as required by law; (2) it was not intended as the last will of
the testator; and (3) it was procured by undue and improper pressure and influence
on the part of the beneficiaries. Citing the same grounds invoked by Caponong, the
alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo,
Humberto, Teodora and Elena Abada (Joel Abada, et al.), and Levi, Leandro, Antonio,
Florian, Hernani and Carmela Tronco (Levi Tronco, et al.), also opposed the petition.
The oppositors are the nephews, nieces and grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition [6] before the RTCKabankalan, docketed as SP No. 071 (312-8669), for the probate of the last will and

testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the
petition on the same grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition [7] before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for the issuance in his name of letters of
administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the
will of Toray. Since the oppositors did not file any motion for reconsideration, the
order allowing the probate of Torays will became final and executory. [8]
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda
Caponong-Noble (Caponong-Noble) Special Administratrix of the estate of Abada
and Toray.[9]Caponong-Noble moved for the dismissal of the petition for probate of
the will of Abada. The RTC-Kabankalan denied the motion in an Order dated 20
August 1991.[10]
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas
discovered that in an Order dated 16 March 1992, former Presiding Judge Edgardo
Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan
rendered a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there is
substantial compliance with the formalities of a Will as the law directs and that the
petitioner through his testimony and the deposition of Felix Gallinero was able to
establish the regularity of the execution of the said Will and further, there being no
evidence of bad faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar[11] is appointed administrator of the estate of
Paula Toray who shall discharge his duties as such after letters of administration
shall have been issued in his favor and after taking his oath and filing a bond in the
amount of Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall
continue discharging her duties as such until further orders from this Court.
SO ORDERED.[12]
The RTC-Kabankalan ruled on the only issue raised by the oppositors in their
motions to dismiss the petition for probate, that is, whether the will of Abada has an
attestation clause as required by law. The RTC-Kabankalan further held that the
failure of the oppositors to raise any other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed
the Resolution of the RTC-Kabankalan. The appellate court found that the RTCKabankalan properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-Noble.

The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada;
2. Whether the will of Abada requires acknowledgment before a notary
public;[13]
3. Whether the will must expressly state that it is written in a language or
dialect known to the testator;
4. Whether the will of Abada has an attestation clause, and if so, whether
the attestation clause complies with the requirements of the applicable
laws;
5. Whether Caponong-Noble is precluded from raising the issue of whether
the will of Abada is written in a language known to Abada;
6. Whether evidence aliunde may be resorted to in the probate of the will of
Abada.

The Ruling of the Court

The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting
to probate the will of Abada.

The Applicable Law

Abada executed his will on 4 June 1932. The laws in force at that time are the
Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure[14] which governed the execution of wills before the enactment of the New
Civil Code.
The matter in dispute in the present case is the attestation clause in the will
of Abada. Section 618 of the Code of Civil Procedure, as amended by Act No. 2645,
[15]
governs the form of the attestation clause of Abadas will. [16] Section 618 of the
Code of Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as provided in the preceding section,
[17]
shall be valid to pass any estate, real or personal, nor charge or affect the same,
unless it be written in the language or dialect known by the testator and signed by
him, or by the testators name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other. 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, on the left margin,
and said pages shall be numbered correlatively in letters placed on the upper part
of each sheet. The attestation shall state the number of sheets or pages used, upon

which the will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of the testator and of each other.

Requisites of a Will under the Code of Civil Procedure

Under Section 618 of the Code of Civil Procedure, the requisites of a will are the
following:
(1) The will must be written in the language or dialect known by the
testator;
(2) The will must be signed by the testator, or by the testators name written
by some other person in his presence, and by his express direction;
(3) The will must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other;
(4) The testator or the person requested by him to write his name and the
instrumental witnesses of the will must sign each and every page of the
will on the left margin;
(5) The pages of the will must be numbered correlatively in letters placed on
the upper part of each sheet;
(6) The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will
and every page of the will, or caused some other person to write his
name, under his express direction, in the presence of three witnesses,
and the witnesses witnessed and signed the will and all pages of the will
in the presence of the testator and of each other.
Caponong-Noble asserts that the will of Abada does not indicate that it is
written in a language or dialect known to the testator. Further, she maintains that
the will is not acknowledged before a notary public. She cites in particular Articles
804 and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or dialect known
to the testator.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. xxx[18]
Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.
Article 804 of the Old Civil Code is about the rights and obligations of
administrators of the property of an absentee, while Article 806 of the Old Civil Code
defines a legitime.
[19]

Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the
New Civil Code is taken from Section 618 of the Code of Civil Procedure. [20] Article

806 of the New Civil Code is taken from Article 685 of the Old Civil Code [21] which
provides:
Art. 685. The notary and two of the witnesses who authenticate the will must be
acquainted with the testator, or, should they not know him, he shall be identified by
two witnesses who are acquainted with him and are known to the notary and to the
attesting witnesses. The notary and the witnesses shall also endeavor to assure
themselves that the testator has, in their judgment, the legal capacity required to
make a will.
Witnesses authenticating a will without the attendance of a notary, in cases falling
under Articles 700 and 701, are also required to know the testator.
However, the Code of Civil Procedure [22] repealed Article 685 of the Old Civil
Code. Under the Code of Civil Procedure, the intervention of a notary is not
necessary in the execution ofany will.[23] Therefore, Abadas will does not require
acknowledgment before a notary public.
Caponong-Noble points out that nowhere in the will can one discern that Abada
knew the Spanish language. She alleges that such defect is fatal and must result in
the disallowance of the will. On this issue, the Court of Appeals held that the matter
was not raised in the motion to dismiss, and that it is now too late to raise the issue
on appeal. We agree with Caponong-Noble that the doctrine of estoppel does not
apply in probate proceedings. [24] In addition, the language used in the will is part of
the requisites under Section 618 of the Code of Civil Procedure and the Court deems
it proper to pass upon this issue.
Nevertheless, Caponong-Nobles contention must still fail. There is no statutory
requirement to state in the will itself that the testator knew the language or dialect
used in the will.[25] This is a matter that a party may establish by proof aliunde.
[26]
Caponong-Noble further argues that Alipio, in his testimony, has failed, among
others, to show that Abada knew or understood the contents of the will and the
Spanish language used in the will. However, Alipio testified that Abada used to
gather Spanish-speaking people in their place. In these gatherings, Abada and his
companions would talk in the Spanish language. [27] This sufficiently proves that
Abada speaks the Spanish language.

The Attestation Clause of Abadas Will

A scrutiny of Abadas will shows that it has an attestation clause. The attestation
clause of Abadas will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y cada una de las hojas del
mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este documento y en el margen izquierdo de todas
y cada una de las dos hojas de que esta compuesto el mismo, las cuales estan

paginadas correlativamente con las letras UNO y DOS en la parte superior de la

carrilla.[28]
Caponong-Noble proceeds to point out several defects in the attestation
clause. Caponong-Noble alleges that the attestation clause fails to state the number
of pages on which the will is written.
The allegation has no merit. The phrase en el margen izquierdo de todas y cada
una de las dos hojas de que esta compuesto el mismo which means in the left
margin of each and every one of the two pages consisting of the same shows that
the will consists of two pages. The pages are numbered correlatively with the letters
ONE and TWO as can be gleaned from the phrase las cuales estan paginadas
correlativamente con las letras UNO y DOS.
Caponong-Noble further alleges that the attestation clause fails to state
expressly that the testator signed the will and its every page in the presence of
three witnesses. She then faults the Court of Appeals for applying to the present
case the rule on substantial compliance found in Article 809 of the New Civil Code.
[29]

The first sentence of the attestation clause reads: Suscrito y declarado por el
testador Alipio Abada como su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen
izquierdo de todas y cada una de las hojas del mismo. The English translation is:
Subscribed and professed by the testator Alipio Abada as his last will and testament
in our presence, the testator having also signed it in our presence on the left margin
of
each
and
every
one
of
the
pages
of
the
same.
The
attestationclause clearly states that Abada signed the will and its every page in
the presence of the witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does
not indicate the number of witnesses. On this point, the Court agrees with the
appellate court in applying the rule on substantial compliance in determining the
number of witnesses. While the attestation clause does not state the number of
witnesses, a close inspection of the will shows that three witnesses signed it.
This Court has applied the rule on substantial compliance even before the
effectivity of the New Civil Code. In Dichoso de Ticson v. De Gorostiza,[30] the
Court recognized that there are two divergent tendencies in the law on wills, one
being based on strict construction and the other on liberal construction. In Dichoso,
the Court noted that Abangan v. Abangan,[31] the basic case on the liberal
construction, is cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,[32] the petitioner, arguing for liberal
construction of applicable laws, enumerated a long line of cases to support her
argument while the respondent, contending that the rule on strict construction
should apply, also cited a long series of cases to support his view. The Court, after
examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible,
which would be applicable to all cases. More than anything else, the facts and
circumstances of record are to be considered in the application of any given rule. If
the surrounding circumstances point to a regular execution of the will, and the

instrument appears to have been executed substantially in accordance with the

requirements of the law, the inclination should, in the absence of any suggestion of
bad faith, forgery or fraud, lean towards its admission to probate, although the
document may suffer from some imperfection of language, or other non-essential
defect. x x x.
An attestation clause is made for the purpose of preserving, in permanent form, a
record of the facts attending the execution of the will, so that in case of failure of
the memory of the subscribing witnesses, or other casualty, they may still be
proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the purpose of the law. x x x [33]
We rule to apply the liberal construction in the probate of Abadas will. Abadas
will clearly shows four signatures: that of Abada and of three other persons. It is
reasonable to conclude that there are three witnesses to the will. The question on
the number of the witnesses is answered by an examination of the will itself and
without the need for presentation of evidencealiunde. The Court explained the
extent and limits of the rule on liberal construction, thus:
[T]he so-called 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. [34] (Emphasis supplied)
The phrase en presencia de nosotros or in our presence coupled with the signatures
appearing on the will itself and after the attestation clause could only mean that: (1)
Abada subscribed to and professed before the three witnesses that the document
was his last will, and (2) Abada signed the will and the left margin of each page of
the will in the presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not expressly
state the circumstances that the witnesses witnessed and signed the will and all
its pages in the presence of the testator and of each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is desirable. However,
it is not imperative that a parrot-like copy of the words of the statute be made. It is
sufficient if from the language employed it can reasonably be deduced that the
attestation clause fulfills what the law expects of it. [35]
The last part of the attestation clause states en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador. In English, this means
in its witness, every one of us also signed in our presence and of the testator. This
clearly shows that the attesting witnesses witnessed the signing of the will of the
testator, and that each witness signed the will in the presence of one another and of
the testator.

WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January

2001 in CA-G.R. CV No. 47644.
SO ORDERED.
Davide,
JJ., concur.

Jr.,

C.J.,

(Chairman),

Quisumbing,

Ynares-Santiago, and Azcuna,

[1]

Under Rule 45 of the 1997 Rules of Civil Procedure.

[2]

Penned by Associate Justice Presbitero J. Velasco, Jr. (now Court Administrator)

with Associate Justices Ruben T. Reyes and Juan Q. Enriquez, Jr., concurring.

[3]

Penned by Presiding Judge Rodolfo S. Layumas.

[4]

Alipio C. Abaja tried to secure a copy of Abadas death certificate but the Local
Civil Registrar of Cawayan, Negros Occidental informed him that all the
records of pre-war deaths were destroyed during the war.

[5]

In the matter of the Probate of the Last Will and Testament of the late Alipio
Abada.

[6]

In the matter of the Probate of the Last Will and Testament of the late Paula Toray.

[7]

In the matter of the Intestate Estate of Spouses Alipio Abada and Paula Toray.
Petition for Letters of Administration.

[8]

Records, p. 38.

[9]

Ibid., p. 41.

[10]

Ibid., pp. 42-45.

[11]

It should be Abellar.

[12]

Rollo, p. 47.

[13]

Petitioner phrases this issue as to whether the will has to be notarized. A

notarized document includes one that is subscribed and sworn under oath or
one that contains a jurat. Acknowledgment is different. Acknowledgment
refers to an act in which an individual on a single occasion: (a) appears in
person before the notary public and presents an integrally complete
instrument or document; (b) is attested to be personally known to the notary
public or identified by the notary public through competent evidence of
identity as defined by these Rules; and (c) represents to the notary public
that the signature on the instrument or document was voluntarily affixed by
him for the purposes stated in the instrument or document, declares that he
has executed the instrument or document as his free and voluntary act and
deed, and, if he acts in a particular representative capacity, that he has the
authority to sign in that capacity. (See Section 1, Rule II of 2004 Rules of
Notarial Practice)

[14]

The Code of Civil Procedure took effect on 1 September 1901.

[15]

An Act amending section six hundred and eighteen of Act Numbered One
hundred and ninety, entitled An Act providing A Code of Procedure in Civil
Actions and Special Proceedings in the Philippine Islands, prescribing
additional requirement in the execution of wills. It took effect on 1 July 1916.

[16]

The validity of the execution of a will is governed by the statutes in the force at
the time of its execution (In re will of Riosa, 39 Phil. 23 [1918]). Article 795 of
the New Civil Code provides: The validity of a will as to its form depends upon
the observance of the law in force at the time it is made.

[17]

Section 617 governs wills executed by a Spaniard or a resident of the Philippine

Islands before Act No. 190 came into force on 1 September 1901.

[18]

Rollo, p. 151.

[19]

The New Civil Code took effect on 30 August 1950.

[20]

TOLENTINO, CIVIL CODE OF THE PHILIPPINES, 67 Vol. III (1998).

[21]

Ibid., p. 101.

[22]

FISHER, THE CIVIL CODE OF SPAIN, 198 (1921).

[23]

Valera v. Purugganan, 4 Phil. 719 (1905).

[24]

See Fernandez, et al. v. Dimagiba, 128 Phil. 450 (1967).

[25]

Lopez v. Liboro, 81 Phil 429 (1948).

[26]

Ibid.

[27]

TSN, 26 October 1989, p. 74.

[28]

Exhibit A, Folder.

[29]

Article 809 of the New Civil Code provides:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation
or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with
all the requirements of article 805.

[30]

57 Phil. 437 (1932).

[31]

40 Phil. 476 (1919).

[32]

68 Phil. 745 (1939).

[33]

Ibid.

[34]

Gil v. Murciano, Resolution on the Motion for Reconsideration, dated 20 March

1953, 88 Phil. 260 (1951). See also Caneda v. Court of Appeals, G.R. No.
103554, 28 May 1993, 222 SCRA 781, where the Court explained the extent
and limits of Article 809 of the New Civil Code.

[35]

Dichoso de Ticson v. De Gorostiza, supra, see note 31.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20234

December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of
Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court
of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that "our two parcels of land acquired during our
marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God did
not give us any child in our union, Manuela Rebaca being married to Nicolas
Potot", and that "while each of the testators is yet living, he or she will
continue to enjoy the fruits of the two lands aforementioned", the said two
parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu.
Bernabe dela Serna died on August 30, 1939, and the aforesaid will was
submitted to probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order of October 31, 1939;
in Special Proceedings No. 499, "declara legalizado el documento Exhibit A
como el testamento y ultima voluntad del finado Bernabe de la Serna con
derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al
propio tiempo segun el Exhibit A de gozar de los frutos de los terranos
descritos en dicho documents; y habido consideracion de la cuantia de dichos
bienes, se decreta la distribucion sumaria de los mismos en favor de la
logataria universal Manuela Rebaca de Potot previa prestacion por parte de la
misma de una fianza en la sum de P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los bienes del finado Bernabe de la
Serna de los aos desde esta fecha" (Act Esp. 499, Testamentaria Finado

Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14,

1952, another petition for the probate of the same will insofar as Gervasia
was concerned was filed on November 6, 1952, being Special Proceedings No.
1016-R of the same Court of First Instance of Cebu, but for failure of the
petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on March 30, 1954 Spec.
Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament
null and void, for being executed contrary to the prohibition of joint wills in the Civil
Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on
appeal by the testamentary heir, the Court of Appeals reversed, on the ground that
the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third person. However, this form of
will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and testament
has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was done in the case
of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein mentioned, saying, "assuming
that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna,
died), has conclusive effect as to his last will and testament despite the fact that
even then the Civil Code already decreed the invalidity of joint wills, whether in
favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil
Code). The error thus committed by the probate court was an error of law, that
should have been corrected by appeal, but which did not affect the jurisdiction of
the probate court, nor the conclusive effect of its final decision, however erroneous.
A final judgment rendered on a petition for the probate of a will is binding upon the
whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil.
156); and public policy and sound practice demand that at the risk of occasional
errors judgment of courts should become final at some definite date fixed by
law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and
other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded
by the 1939 decree admitting his will to probate. The contention that being void the
will cannot be validated, overlooks that the ultimate decision on Whether an act is
valid or void rests with the courts, and here they have spoken with finality when the

will was probated in 1939. On this court, the dismissal of their action for partition
was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of
the deceased husband, Bernabe de la Cerna. It could not include the disposition of
the share of the wife, Gervasia Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate court acquired no jurisdiction,
precisely because her estate could not then be in issue. Be it remembered that prior
to the new Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a
joint will is considered a separate will of each testator. Thus regarded, the holding of
the court of First Instance of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia Rebaca in the properties in
question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao,
87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil.
267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to
her heirs intestate, and not exclusively to the testamentary heir, unless some other
valid will in her favor is shown to exist, or unless she be the only heir intestate of
said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other subsequent laws, and no usage to
the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7,
Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CAG.R. No. 23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala,
Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig
Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language
not known to the illiterate testatrix, and which is probably aforged will because she
and the attesting witnesses did not appear before the notary as admitted by the
notary himself?
That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled strands of
human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts),
Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816).
They were childless. They reared a boy named Agapito who used the surname
Suroza and who considered them as his parents as shown in his 1945 marriage
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of
Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in
1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the
Federal Government. That explains why on her death she had accumulated some
cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist
and went abroad. Agapito also became a soldier. He was disabled and his wife
Nenita was appointed as his guardian in 1953 when he was declared an
incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal,
Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz
wanted also to be his guardian in another proceeding. Arsenia tried to prove that
Nenita was living separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and
confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case).
Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto,
California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan
begot a child named Marilyn Sy, who, when a few days old, was entrusted to
Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered
to Marcelina Salvador Suroza who brought her up as a supposed daughter of
Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R).
Marilyn used the surname Suroza. She stayed with Marcelina but was not legally
adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas

Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas
Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she
was 73 years old. That will which is in English was thumbmarked by her. She was
illiterate. Her letters in English to the Veterans Administration were also
thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her
estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At
the time of her death, she was a resident of 7374 San Maximo Street, Olimpia,
Makati, Rizal. She owned a 150-square meter lot and house in that place. She
acquired the lot in 1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97,
CA Rollo) and the executrix in her will (the alternate executrix was Juanita
Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First Instance
of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The
case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court,
Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic
notes taken at the hearing before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administratrix. On the following day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the Bank of America to allow
Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975,
instructing a deputy sheriff to eject the occupants of the testatrix's house, among
whom was Nenita V. Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the
settlement of Marcelina's estate. She and the other occupants of the decedent's
house filed on April 18 in the said proceeding a motion to set aside the order of April
11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of
the deceased, that he has a daughter named Lilia, that Nenita was Agapito's
guardian and that Marilyn was not Agapito's daughter nor the decedent's
granddaughter (pp. 52-68, Record of testate case). Later, they questioned the
probate court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other
than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order
probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-77,
Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition for administration and
preliminary injunction". Nenita in that motion reiterated her allegation that Marilyn
was a stranger to Marcelina, that the will was not duly executed and attested, that it
was procured by means of undue influence employed by Marina and Marilyn and
that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the
preterition of Agapito and that Marina was not qualified to act as executrix (pp. 8391, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of
Marcelina, who swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and
her omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the
next day, April 25, an opposition to the probate of the will and a counter-petition for
letters of administration. In that opposition, Nenita assailed the due execution of the
will and stated the names and addresses of Marcelina's intestate heirs, her nieces
and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate
dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio,
Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-125,
Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted that
Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and
Arsenia de la Cruz and that Agapito was not Marcelina's sonbut merely an anakanakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for
the issuance of letters of administration because of the non-appearance of her
counsel at the hearing. She moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents,
Nenita V. Suroza reiterated her contention that the alleged will is void because
Marcelina did not appear before the notary and because it is written in English
which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised"
by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed a
case to annul" the probate proceedings (p. 332, Record). That case, Civil Case No.
24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to Judge
Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record).

Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had been
paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this
Court, Nenita charged Judge Honrado with having probated the fraudulent will of
Marcelina. The complainant reiterated her contention that the testatrix was illiterate
as shown by the fact that she affixed her thumbmark to the will and that she did not
know English, the language in which the win was written. (In the decree of probate
Judge Honrado did not make any finding that the will was written in a language
known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrix's supposed sole compulsory and
legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him
that the testatrix did not know the executrix Marina Paje, that the beneficiary's real
name is Marilyn Sy and that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and
her cohorts to withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving
her access to the record of the probate case by alleging that it was useless for
Nenita to oppose the probate since Judge Honrado would not change his decision.
Nenita also said that Evangeline insinuated that if she (Nenita) had ten thousand
pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita
to desist from claiming the properties of the testatrix because she (Nenita) had no
rights thereto and, should she persist, she might lose her pension from the Federal
Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of
the complaint. He merely pointed to the fact that Nenita did not appeal from the
decree of probate and that in a motion dated July 6, 1976 she asked for a thirty day
period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that
the latter did not mention Evangeline in her letter dated September 11, 1978 to
President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented
Nenita from having access to the record of the testamentary proceeding. Evangeline
was not the custodian of the record. Evangeline " strongly, vehemently and flatly
denied" Nenita's charge that she (Evangeline) said that the sum of ten thousand
pesos was needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenita's pension from the Federal
Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court
in the Court Administrator's memorandum of September 25, 1980. The case was
referred to Justice Juan A. Sison of the Court of Appeals for investigation, report and
recommendation. He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado
a petition for certiorari and prohibition wherein she prayed that the will, the decree
of probate and all the proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the
will. He swore that the testatrix and the three attesting witnesses did not appear
before him and that he notarized the will "just to accommodate a brother lawyer on
the condition" that said lawyer would bring to the notary the testatrix and the
witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal
and her failure to do so did not entitle her to resort to the special civil action of
certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to
dismiss the administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his
improper disposition of the testate case which might have resulted in a miscarriage
of justice because the decedent's legal heirs and not the instituted heiress in the
void win should have inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or
interlocutory order or rendering a manifestly unjust judgment or interlocutory order
by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal
Code).
Administrative action may be taken against a judge of the court of first instance for
serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies
malice or a wrongful intent, not a mere error of judgment. "For serious misconduct
to exist, there must be reliable evidence showing that the judicial acts complained
of were corrupt or inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules" (In relmpeachment of Horrilleno, 43 Phil. 212,
214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge
would be inexcusably negligent if he failed to observe in the performance of his
duties that diligence, prudence and circumspection which the law requires in the
rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55
SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in
English and was thumbmarked by an obviously illiterate testatrix, could have readily
perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix "and translated into Filipino language".
(p. 16, Record of testate case). That could only mean that the will was written in a
language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator. Thus, a will written in
English, which was not known to the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the
"testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only the
anomaly as to the language of the will but also that there was something wrong in
instituting the supposed granddaughter as sole heiress and giving nothing at all to
her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court,
respondent judge could have noticed that the notary was not presented as a
witness.
In spite of the absence of an opposition, respondent judge should have personally
conducted the hearing on the probate of the will so that he could have ascertained
whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a
fine equivalent to his salary for one month is imposed on respondent judge (his
compulsory retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic because she is
no longer employed in the judiciary. Since September 1, 1980 she has been
assistant city fiscal of Surigao City. She is beyond this Court's disciplinary
jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980, 101
SCRA 225).
SO ORDERED.
Barredo (Chairman), De Castro, Ericta and Escolin JJ., concur.
Concepcion Jr., J., is on leave.
Abad Santos, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the
first of which contains all of the disposition of the testatrix, duly signed at the
bottom by Martin Montalban (in the name and under the direction of the testatrix)
and by three witnesses. The following sheet contains only the attestation clause
duly signed at the bottom by the three instrumental witnesses. Neither of these
sheets is signed on the left margin by the testatrix and the three witnesses, nor
numbered by letters; and these omissions, according to appellants' contention, are
defects whereby the probate of the will should have been denied. We are of the
opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left
margin by the testator and three witnesses in the presence of each other, Act No.
2645 (which is the one applicable in the case) evidently has for its object (referring
to the body of the will itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions are wholly written
on only one sheet signed at the bottom by the testator and three witnesses (as the
instant case), their signatures on the left margin of said sheet would be completely
purposeless. In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets and must
have referred to the sheets which the testator and the witnesses do not have to sign
at the bottom. A different interpretation would assume that the statute requires that
this sheet, already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator and
the witnesses in the presence of each other, it appears that, if the signatures at the
bottom of the sheet guaranties its authenticity, another signature on its left margin
would be unneccessary; and if they do not guaranty, same signatures, affixed on

another part of same sheet, would add nothing. We cannot assume that the statute
regards of such importance the place where the testator and the witnesses must
sign on the sheet that it would consider that their signatures written on the bottom
do not guaranty the authenticity of the sheet but, if repeated on the margin, give
sufficient security.
In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of
Act No. 2645 is to know whether any sheet of the will has been removed. But, when
all the dispositive parts of a will are written on one sheet only, the object of the
statute disappears because the removal of this single sheet, although unnumbered,
cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in
the one accompanying the will in question, the signatures of the testatrix and of the
three witnesses on the margin and the numbering of the pages of the sheet are
formalities not required by the statute. Moreover, referring specially to the signature
of the testatrix, we can add that same is not necessary in the attestation clause
because this, as its name implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of
which contains all the testamentary dispositions and is signed at the bottom by the
testator and three witnesses and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by the testator and the witnesses, or
be paged.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal 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 frustative
of the testator's last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the
testarix knew the dialect in which the will is written. But the circumstance appearing
in the will itself that same was executed in the city of Cebu and in the dialect of this
locality where the testatrix was a neighbor is enough, in the absence of any proof to
the contrary, to presume that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 42258

September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitionerappellant,

vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution:
That of January 29, 1935, praying for the reconsideration of the decision of the court
and that of the same date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the following facts relied
upon in her pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and
surname on the spaces of the will where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix on the date indicated
therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer in
a physical or mental condition to make it.
We have again reviewed the evidence to determine once more whether the errors
assigned by the oppositor in her brief have not been duly considered, whether some
fact or detail which might have led us to another conclusion has been overlooked, or
whether the conclusions arrived at in our decision are not supported by the
evidence. We have found that the testatrix Leoncia Tolentino, notwithstanding her
advanced age of 92 years, was in good health until September 1, 1933. She had a
slight cold on said date for which reason she was visited by her physician, Dr.
Florencio Manuel. Said physician again visited her three or four days later and found
her still suffering from said illness but there was no indication that she had but a
few days to live. She ate comparatively well and conserved her mind and memory
at least long after noon of September 7, 1933. She took her last nourishment of milk

in the morning of the following day, September 8, 1933, and death did not come to
her until 11 o'clock sharp that morning.
The will in question was prepared by Attorney Marciano Almario between 11 and 12
o'clock noon on September 7, 1933, in the house of the testatrix Leoncia Tolentino,
after she had expressed to said attorney her desire to make a will and bequeath her
property to the petitioner Victorio Payad in compensation according to her, for his
diligent and faithful services rendered to her. Victorio Payad had grown up under the
care of the testatrix who had been in her home from childhood. The will was written
by Attorney Almario in his own handwriting, and was written in Spanish because he
had been instructed to do so by the testatrix. It was later read to her in the
presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who
were then present. The testatrix approved all the contents of the document and
requested Attorney Almario to write her name where she had to sign by means of
her thumbmark in view of the fact that her fingers no longer had the necessary
strength to hold a pen. She did after having taken the pen and tried to sign without
anybody's help. Attorney Almario proceeded to write the name of the testatrix on
the three pages composing the will and the testatrix placed her thumbmark on said
writing with the help of said attorney, said help consisting in guiding her thumb in
order to place the mark between her name and surname, after she herself had
moistened the tip of her thumb with which she made such mark, on the ink pad
which was brought to her for said purpose. Said attorney later signed the three
pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and Jose
Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively and
exactly under the same circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the will on
September 7, 1983, and that she never made said will because she was no longer
physically or mentally in a condition do so, the oppositor cites the testimony of
Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney
Almario in the morning of September 7, 1933, in the house of the deceased where
they were then living, and that the first time that they saw him there was at about
12 o'clock noon on September 8th of said year, when Leoncia Tolentino was already
dead, Gliceria Quisonia stating that on that occasion Almario arrived there
accompanied only by woman named Pacing. They did not state that Almario was
accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the
instrumental witnesses of the will. Said two witnesses, however, could not but admit
that their room was situated at the other end of the rooms occupied by the
deceased herself and by the petitioner Victorio Payad, and that their said room and
that of Victorio Payad are separated by the stairs of the house; that Gliceria
Quisonia saw the deceased only once on the 7th and twice on the 8th, and that
Julian Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on
the 7th of said month. Gliceria Quisonia further stated that in the morning of
September 7th, she prepared the noonday meal in the kitchen which was situated
under the house. Under such circumstances it is not strange that the two did not
see the testatrix when, according to the evidence for the petitioner, she made her
will and signed it by means of her thumbmark. In order to be able to see her and
also Almario and the instrumental witnesses of the will, on that occasion, it was

necessary for them to enter the room where the deceased was, or at least the
adjoining room where the will was prepared by Attorney Almario, but they did not do
so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was
already so weak that she could not move and that she could hardly be understood
because she could no longer enunciate, making it understood thereby, that in such
condition it was absolutely impossible for her to make any will. The attorney for the
oppositor insists likewise and more so because, according to him and his witness
Paz de Leon, two days before the death of the testatrix, or on September 6, 1933,
she could not even open her eyes or make herself understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the
testimony of the petitioner-appellant or that of Attorney Almario and the three
instrumental witnesses of the will because, to corroborate them, we have of record
the testimony of the physician of the deceased and the accountant Ventura Loreto
who are two disinterested witnesses, inasmuch as the outcome of these
proceedings does not affect them in the least. The two testified that two, three or
four days before the death of the testatrix, they visited her in her home, the former
professionally, and the latter as an acquaintance, and they then found her not so ill
as to be unable to move or hold a conversation. They stated that she spoke to them
intelligently; that she answered all the questions which they had put to her, and
that she could still move in spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the
oppositor's motion for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That
upon her death, the deceased left a letter signed by herself, placed in a stamped
envelope and addressed to Teodoro R. Yangco, with instructions not to open it until
after her death; (2) that there are witnesses competent to testify on the letter in
question, in addition to other evidence discovered later, which could not be
presented at the trial; (3) that in the letter left by the deceased, she transfers all her
property to Teodoro R. Yangco stating therein that, upon her death, all the property
in question should become Yangco's. From this alleged fact, the oppositor infers that
the deceased never had and could not have had the intention to make the will in
question, and (4) that said oppositor knew of the existence of said letter only after
her former attorney, Alejandro Panis, had been informed thereof in May, 1935, by
one of Teodoro R. Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed
another supplementary motion alleging that she had discovered some additional
new evidence consisting in the affidavit of Attorney Gabino Fernando Viola wherein
the latter affirms that Victorio Payad had called him on September 5, 1933, to
prepare the will of the deceased but he did not do so because after seeing her he
had been convinced that she could not make a will because she had lost her speech
and her eyes were already closed.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially
affirming the facts alleged by the oppositor, are attached to both motions for a new
trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and
cannot be newly discovered evidence, and are not admissible to warrant the holding
of a new trial, because the oppositor had been informed of the facts affirmed by
Attorney Jose Cortes in his affidavit long before this case was decided by this court.
It is stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the
attorney for oppositor the fact that the deceased had left a letter whereby she
transferred all her property to Teodoro R. Yangco, and the judgment was rendered
only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly
discovered evidence inasmuch as the judgment of the lower court was favorable to
her. She, however, overlooks the fact that she also appealed from the decision of
the lower court and it was her duty, under the circumstances, to inform this court of
the discovery of said allegedly newly discovered evidence and to take advantage of
the effects thereof because, by so doing, she could better support her claim that the
testatrix made no will, much less the will in question. Said evidence, is not new and
is not of the nature of that which gives rise to a new trial because, under the law, in
order that evidence may be considered newly discovered evidence and may serve
as a ground for a new trial, it is necessary (a) that it could not have been discovered
in time, even by the exercise of due diligence; (b) that it be material, and (c) that it
also be of such a character as probably to change the result if admitted (section
497, Act No. 190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the sense that,
even considering it newly discovered evidence, it will be sufficient to support the
decision of the lower court and modify that of this court. It is simply hearsay or, at
most, corroborative evidence. The letter of the deceased Leoncia Tolentino to
Teodoro R. Yangco would, in the eyes of the law, be considered important or
material evidence but this court has not the letter in question before it, and no
attempt was ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant
thereto is not more competent than that of Attorney Jose Cortes because, granting
that when he was called by Victorio Payad to help the deceased Leoncia Tolentino to
make her will and he went to her house on September 5, 1933, the deceased was
almost unconscious, was unintelligible and could not speak, it does not necessarily
mean that on the day she made her will, September 7, 1933, she had not recovered
consciousness and all her mental faculties to capacitate her to dispose of all her
property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit
in question is not and can not be newly discovered evidence of the character
provided for by law, not only because it does not exclude the possibility that
testatrix had somewhat improved in health, which possibility became a reality at
the time she made her will because she was then in the full enjoyment of her
mental faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz,
Perfecto L. Ona, Victorio Payad and Marciano Almario, but also because during the
hearing of these proceedings in the Court of First Instance, Attorney Viola was

present, and the oppositor then could have very well called him to the witness
stand, inasmuch as her attorney already knew what Attorney Viola was to testify
about, yet she did not call him. The last fact is shown by the following excerpt from
pages 148 to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I
should like to present as the last witness Attorney Fernando Viola who was
called by the petitioner Victoria Payad to prepare the will of the deceased in
his favor on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola?
Mr. PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom you wish to
call to the witness stand? Mr. PANIS: Your Honor, he is busy in the branch,
presided over by Judge Sison.
COURT: And when can he come? Mr. PANIS. I am now going to find out, Your
Honor. If the other party, Your Honor, is willing to admit what said witness is
going to testify in the sense that said Attorney Fernando Viola went to the
house of the deceased on September 5, 1933, for the purpose of talking to
the deceased to draft the will upon petition of Mr. Victorio Payad; if the other
party admits that, then I am going waive the presentation of the witness Mr.
Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other party
would not admit that proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr.
Viola, without prejudice to the other party's calling the witness it may wish to
call.
COURT: The court reserves to the oppositor its right to call Attorney Viola to
the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness
in her favor, it might have been because she considered his testimony unimportant
and unnecessary, and at the present stage of the proceedings, it is already too late
to claim that what said attorney may now testify is a newly discovered evidence.
For the foregoing considerations, those stated by this court in the original decision,
and the additional reason that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil.,
297), the right to a new trial on the ground of newly discovered evidence is limited
to ordinary cases pending in this court on bills of exceptions, the motion for
reconsideration and a new trial filed by the oppositor are hereby denied, ordering
that the record be remanded immediately to the lower court. So ordered.

Avancea, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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 signedhis 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.

Footnotes
1

Not published.

TORRES, J., concurring:

1

4 Phil. Rep., 692.

4 Phil. Rep., 700.

5 Phil. Rep., 551.

Abaya vs. Zalamero (10 Phil. Rep., 357).

10 Phil. Rep., 504.

13 Phil. Rep., 470.

Macapinla vs. Alimurong (16 Phil. Rep., 41).

Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. L-4067

November 29, 1951

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

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

(Sgd.) "ROSENDA
CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name
of Antero Mercado, followed below by "A reugo del testator" and the name of
Florentino Javier. Antero Mercado is alleged to have written a cross immediately
after his name. The Court of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that
the will was signed on all the left margins of the three pages and at the end of the
will by Atty. Florentino Javier at the express request of the testator in the presence
of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request said
testator has written a cross at the end of his name and on the left margin of the
three pages of which the will consists and at the end thereof; (3) to certify that the
three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that
Antero Mercado caused Atty. Florentino Javier to write the testator's name under his
express direction, as required by section 618 of the Code of Civil Procedure. The
herein petitioner (who is appealing by way of certiorari from the decision of the
Court of Appeals) argues, however, that there is no need for such recital because
the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the
cross is as much a signature as a thumbmark, the latter having been held sufficient
by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104;
Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra,
76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of
Antero Mercado or even one of the ways by which he signed his name. After mature
reflection, we are not prepared to liken the mere sign of the cross to a thumbmark,
and the reason is obvious. The cross cannot and does not have the trustworthiness
of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient
recital in the attestation clause as to the signing of the will by the testator in the
presence of the witnesses, and by the latter in the presence of the testator and of
each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So
ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18979

June 30, 1964

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

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate
the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last
will and testament of Josefa Villacorte, deceased, and appointing as executor Celso
Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the alleged will of
Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as
executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused
notice thereof to be published for three (3) successive weeks, previous to the time
appointed, in the newspaper "Manila chronicle", and also caused personal service of
copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her
opposition; and on November 10, 1958, she petitioned to have herself appointed as
a special administrator, to which proponent objected. Hence, on November 18,
1958, the court issued an order appointing the Philippine Trust Company as special
administrator. 1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of the
alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his
evidence; but on June 1, 1959, he filed a motion for the admission of an amended
and supplemental petition, alleging that the decedent left a will executed in
duplicate with all the legal requirements, and that he was, on that date, submitting
the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May
26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique
Icasiano filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court admitted said
petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to
probate. From this order, the oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the same is contrary to law
and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died
in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa
Villacorte executed a last will and testament in duplicate at the house of her
daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and
Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the
testatrix and by the said three instrumental witnesses on the same date before
attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the
will was actually prepared by attorney Fermin Samson, who was also present during
the execution and signing of the decedent's last will and testament, together with
former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of
the said three instrumental witnesses to the execution of the decedent's last will
and testament, attorneys Torres and Natividad were in the Philippines at the time of
the hearing, and both testified as to the due execution and authenticity of the said
will. So did the Notary Public before whom the will was acknowledged by the
testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually
prepared the document. The latter also testified upon cross examination that he
prepared one original and two copies of Josefa Villacorte last will and testament at
his house in Baliuag, Bulacan, but he brought only one original and one signed copy
to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously
with the filing of the petition and marked as Exhibit "A" consists of five pages, and
while signed at the end and in every page, it does not contain the signature of one
of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the

duplicate copy attached to the amended and supplemental petition and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and
every page.
The testimony presented by the proponents of the will tends to show that the
original of the will and its duplicate were subscribed at the end and on the left
margin of each and every page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's presence and in that
of one another as witnesses (except for the missing signature of attorney Natividad
on page three (3) of the original); that pages of the original and duplicate of said will
were duly numbered; that the attestation clause thereof contains all the facts
required by law to be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and spoken by the
testatrix that the attestation clause is in a language also known to and spoken by
the witnesses; that the will was executed on one single occasion in duplicate copies;
and that both the original and the duplicate copies were duly acknowledged before
Notary Public Jose Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original,
admits that he may have lifted two pages instead of one when he signed the same,
but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were
they written or affixed on the same occasion as the original, and further aver that
granting that the documents were genuine, they were executed through mistake
and with undue influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit from properties held by them as
attorneys-in-fact of the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties not mentioned in
the will, and not to oppose the probate of it, on penalty of forfeiting their share in
the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the
testatrix signed both original and duplicate copies (Exhibits "A" and "A-1",
respectively) of the will spontaneously, on the same in the presence of the three
attesting witnesses, the notary public who acknowledged the will; and Atty. Samson,
who actually prepared the documents; that the will and its duplicate were executed
in Tagalog, a language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together before they
were actually signed; that the attestation clause is also in a language known to and
spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr.
Felipe Logan, that the signatures of the testatrix appearing in the duplicate original
were not written by the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally because of the paucity of the
standards used by him to support the conclusion that the differences between the

standard and questioned signatures are beyond the writer's range of normal
scriptural variation. The expert has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the original of the testament
(Exh. A); and we feel that with so few standards the expert's opinion and the
signatures in the duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to
show convincingly that the are radical differences that would justify the charge of
forgery, taking into account the advanced age of the testatrix, the evident
variability of her signatures, and the effect of writing fatigue, the duplicate being
signed right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering the standard and
challenged writings were affixed to different kinds of paper, with different surfaces
and reflecting power. On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States
during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some
heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27;
Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of
apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary dispositions that the heirs should not
inquire into other property and that they should respect the distribution made in the
will, under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in a
sizeable portion of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to be litigated on
another occassion. It is also well to note that, as remarked by the Court of Appeals
in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually
repugnant and exclude each other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix
his signature to one page of a testament, due to the simultaneous lifting of two
pages in the course of signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law should not be so
strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control, where the
purpose of the law to guarantee the identity of the testament and its component
pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage the will by muddling or
bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through
pure oversight is shown by his own testimony as well as by the duplicate copy of
the will, which bears a complete set of signatures in every page. The text of the
attestation clause and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held
that a testament, with the only page signed at its foot by testator and witnesses,
but not in the left margin, could nevertheless be probated (Abangan vs. Abangan,
41 Phil. 476); and that despite the requirement for the correlative lettering of the
pages of a will, the failure to make the first page either by letters or numbers is not
a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the
Court's policy to require satisfaction of the legal requirements in order to guard
against fraud and bid faith but without undue or unnecessary curtailment of the
testamentary privilege.
The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed
probate of original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove
that the omission of one signature in the third page of the original testament was
inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court, already conferred
by the original publication of the petition for probate. The amended petition did not
substantially alter the one first filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that new interests were involved
(the contents of Exhibit A and A-1 are admittedly identical); and appellants were
duly notified of the proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs
against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and
Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. L-5826

April 29, 1953

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

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First
Instance of Samar, admitting to probate the will allegedly executed by Vicente
Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective,
because its attestation clause is not signed by the attesting witnesses. There is no
question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is 'a memorandum of the facts attending the execution of the will'
required by law to be made by the attesting witnesses, and it must necessarily bear
their signatures. An unsigned attestation clause cannot be considered as an act of
the witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the
left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures are
in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at
the bottom thereof, be admitted as sufficient, it would be easy to add such clause to
a will on a subsequent occasion and in the absence of the testator and any or all of
the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question
denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the
formalities of the law and, therefore, should be admitted to probate . It appears that
the will was signed by the testator and was attested by three instrumental
witnesses, not only at the bottom, but also on the left-hand margin. The witnesses
testified not only that the will was signed by the testator in their presence and in
the presence of each other but also that when they did so, the attestation clause
was already written thereon. Their testimony has not been contradicted. The only
objection set up by the oppositors to the validity of the will is the fact that the
signatures of the instrumental witnesses do not appear immediately after the
attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs.
Abangan, (40 Phil., 476), this court said that when the testamentary dispositions
"are wholly written on only one sheet signed at the bottom by the testator and three
witnesses (as the instant case),their signatures on the left margin of said sheet
would be completely purposeless." In such a case, the court said, the requirement
of the signatures on the left hand margin was not necessary because the purpose of
the law which is to avoid the substitution of any of the sheets of the will, thereby
changing the testator's dispositions has already been accomplished. We may say
the same thing in connection with the will under consideration because while the
three instrumental witnesses did not sign immediately by the majority that it may
have been only added on a subsequent occasion and not at the uncontradicted
testimony of said witnesses to the effect that such attestation clause was already
written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the fact that it i
not the object of the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given assures such ends, any
other interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely
unnecessary useless and frustrative of the testator's last will, must be
disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of
interpretation of wills, the purpose of which, in case of doubt, is to give such
interpretation that would have the effect of preventing intestacy (article 788 and
791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority
decision erroneously sets down as a fact that the attestation clause was no signed
when the witnesses signatures appear on the left margin and the real and only
question is whether such signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not provide
that the attesting witness should sign the clause at the bottom. In the absence of
such provision, there is no reason why signatures on the margin are not good. A
letter is not any the less the writter's simply because it was signed, not at the
conventional place but on the side or on top.
Feria, J., concurs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7179

June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD

JAVELLANA, petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the
documents in the Visayan dialect, marked Exhibits D and E, as the testament and
codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on
March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria
Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea
Ledesma, sister and nearest surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed in conformity with law.
The appeal was made directly to this Court because the value of the properties
involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through undue
influence. These grounds were abandoned at the hearing in the court below, where

the issue was concentrated into three specific questions: (1) whether the testament
of 1950 was executed by the testatrix in the presence of the instrumental
witnesses; (2) whether the acknowledgment clause was signed and the notarial seal
affixed by the notary without the presence of the testatrix and the witnesses; and
(3) if so, whether the codicil was thereby rendered invalid and ineffective. These
questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the
deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and
heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had
brought the "testamento" and urge her to go to attorney Tabiana's office to sign it;
that Da. Apolinaria manifested that she could not go, because she was not feeling
well; and that upon Yap's insistence that the will had to be signed in the attorney's
office and not elsewhere, the deceased took the paper and signed it in the presence
of Yap alone, and returned it with the statement that no one would question it
because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the
trial Court's rejection of the improbable story of the witnesses. It is squarely
contradicted by the concordant testimony of the instrumental witnesses, Vicente
Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath
that the testament was executed by testatrix and witnesses in the presence of each
other, at the house of the decedent on General Hughes St., Iloilo City, on March 30,
1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap
should have insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all three witnesses
could have easily repaired thither for the purpose. Moreover, the cross-examination
has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to
have heard the word "testamento" for the first time when Yap used it; and they
claimed ability to recall that word four years later, despite the fact that the term
meant nothing to either. It is well known that what is to be remembered must first
be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria
Paderogao was positive that Yap brought the will, and that the deceased alone
signed it, precisely on March 30, 1950; but she could remember no other date, nor
give satisfactory explanation why that particular day stuck in her mind. Worse still,
Allado claimed to have heard what allegedly transpired between Yap and Da.
Apolinaria from the kitchen of the house, that was later proved to have been
separated from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the kitchen.
Later, on redirect examination, Allado sought to cure his testimony by claiming that
he was upstairs in a room where the servants used to eat when he heard Yap
converse with his mistress; but this correction is unavailing, since it was plainly
induced by two highly leading questions from contestant's counsel that had been
previously ruled out by the trial Court. Besides, the contradiction is hardly
consonant with this witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the presence or
absence of Aurelio Montinola at the signing of the testament or of the codicil, and

the identity of the person who inserted the date therein, are not material and are
largely imaginary, since the witness Mrs. Tabiana confessed inability to remember
all the details of the transaction. Neither are we impressed by the argument that the
use of some Spanish terms in the codicil and testament (like legado, partes iguales,
plena propiedad) is proof that its contents were not understood by the testatrix, it
appearing in evidence that those terms are of common use even in the vernacular,
and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the
certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan,
Exhibit E. Unlike the testament, this codicil was executed after the enactment of the
new Civil Code, and, therefore, had to be acknowledged before a notary public (Art.
806). Now, the instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been signed by the
testatrix and the witnesses at the San Pablo Hospital, the same was signed and
sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea
affirmed that he did not do so, but brought the codicil to his office, and signed and
sealed it there. The variance does not necessarily imply conscious perversion of
truth on the part of the witnesses, but appears rather due to a well-established
phenomenon, the tendency of the mind, in recalling past events, to substitute the
usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The
Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the
certification of acknowledgment in the presence of the testatrix and the witnesses,
does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the
new Civil Code does not require that the signing of the testator, witnesses and
notary should be accomplished in one single act. A comparison of Articles 805 and
806 of the new Civil Code reveals that while testator and witnesses sign in the
presence of each other, all that is thereafter required is that "every will must be
acknowledged before a notary public by the testator and the witnesses" (Art. 806);
i.e., that the latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the testamentary
disposition. This was done in the case before us. The subsequent signing and
sealing by the notary of his certification that the testament was duly acknowledged
by the participants therein is no part of the acknowledgment itself nor of the
testamentary act. Hence their separate execution out of the presence of the
testatrix and her witnesses can not be said to violate the rule that testaments
should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or,
as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no
reversible error was committed by the Court in so holding. It is noteworthy that
Article 806 of the new Civil Code does not contain words requiring that the testator
and the witnesses should acknowledge the testament on the same day or occasion
that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo,
Labrador, and Concepcion, JJ.,concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

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

AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of
First Instance of Cebu, and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu
allowing the probate of the last will a testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said
instrument was execute without the testator having been fully informed of the
content thereof, particularly as to what properties he was disposing and that the
supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will
and testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit
"E") was executed in accordance with law, particularly Articles 805 and 806 of the
new Civil Code, the first requiring at least three credible witnesses to attest and
subscribe to the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses must appear before the notary
public to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the

notary public to acknowledge the will. On the other hand, private respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial compliance with the
legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against
the purely technical reason that one of the witnesses required by law
signed as certifying to an acknowledgment of the testator's signature
under oath rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to
sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro,
100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in
front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary
of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.)
Consequently, if the third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of himself. This cannot be
done because he cannot split his personality into two so that one will appear before
the other to acknowledge his participation in the making of the will. To permit such
a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any
illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function
would defeated if the notary public were one of the attesting instrumental
witnesses. For them he would be interested sustaining the validity of the will as it
directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize
fraud (Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130).
There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas
Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.
496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See
also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the
purpose of the law in this jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to aforecited cases merely acted as
instrumental, subscribing attesting witnesses, and not as acknowledging witnesses.
He the notary public acted not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by

the testator and the witnesses. The notary public shall not be required
to retain a copy of the will or file another with the office of the Clerk of
Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of Article 80
be requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before
the notary public to acknowledge the will. The result would be, as has been said,
that only two witnesses appeared before the notary public for or that purpose. In
the circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set aside.
Cost against the appellee.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.