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806
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
2
decedent. Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several
court cases filed by oppositor against petitioner, particularly for forcible entry and
usurpation of real property, all centering on petitioners right to occupy the
3
properties of the decedent. It also asserted that contrary to the representations
of petitioner, the decedent was actually survived by 12 legitimate heirs, namely
her grandchildren, who were then residing abroad. Per records, it was
subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died
4
in 1965, and the mother of a legitimate child, Asuncion E. Igsolo, who
5
predeceased her mother by three (3) months.
Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedents signature did
not appear on the second page of the will, and the will was not properly
acknowledged. These twin arguments are among the central matters to this
petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August
6
1992. The RTC favorably took into account the testimony of the three (3)
witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The
RTC also called to fore "the modern tendency in respect to the formalities in the
execution of a will x x x with the end in view of giving the testator more freedom
7
in expressing his last wishes;" and from this perspective, rebutted oppositors
arguments that the will was not properly executed and attested to in accordance
with law.
After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with the end in view
of giving the testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been executed by
the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of
the will after the signature of the testatrix, the following statement is made under
the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi
ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat
isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial compliance
with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of
the will containing the attestation clause and acknowledgment, instead of at the
bottom thereof, substantially satisfies the purpose of identification and
attestation of the will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the attestation
did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of
a serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which
contains only the last portion of the attestation clause and acknowledgment is
not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will
is a forgery, the testimonies of the three subscribing witnesses to the will are
convincing enough to establish the genuineness of the signature of the testatrix
8
and the due execution of the will.
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision
dated 17 August 1995, the Court of Appeals reversed the trial court and ordered
9
the dismissal of the petition for probate. The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
10
rendering the will void and undeserving of probate.
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that
"the number of pages used in a notarial will be stated in the attestation clause" is
merely directory, rather than mandatory, and thus susceptible to what he termed
11
as "the substantial compliance rule."
The solution to this case calls for the application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of
the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number
12
of pages of the will. There was an incomplete attempt to comply with this
requisite, a space having been allotted for the insertion of the number of pages
in the attestation clause. Yet the blank was never filled in; hence, the requisite
was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in
13
14
the process Uy Coque v. Navas L. Sioca and In re: Will of Andrada. In Uy
Coque, the Court noted that among the defects of the will in question was the
failure of the attestation clause to state the number of pages contained in the
15
will. In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose
of requiring the number of sheets to be stated in the attestation clause is
obvious; the document might easily be so prepared that the removal of a
sheet would completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand,
the total number of sheets is stated in the attestation clause the falsification of
the document will involve the inserting of new pages and the forging of the
signatures of the testator and witnesses in the margin, a matter attended with
16
much greater difficulty."
The case of In re Will of Andrada concerned a will the attestation clause of
which failed to state the number of sheets or pages used. This consideration
alone was sufficient for the Court to declare "unanim[ity] upon the point that the
17
defect pointed out in the attesting clause is fatal." It was further observed that
"it cannot be denied that the x x x requirement affords additional security against
the danger that the will may be tampered with; and as the Legislature has seen
18
fit to prescribe this requirement, it must be considered material."
19
Against these cited cases, petitioner cites Singson v. Florentino and Taboada
20
v. Hon. Rosal, wherein the Court allowed probate to the wills concerned
therein despite the fact that the attestation clause did not state the number of
pages of the will. Yet the appellate court itself considered the import of these two
cases, and made the following distinction which petitioner is unable to rebut, and
which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is
written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel
Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada]
versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may
still be valid even if the attestation does not contain the number of pages used
upon which the Will is written. However, the Decisions of the Supreme Court are
not applicable in the aforementioned appeal at bench. This is so because, in the
case of "Manuel Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of pages used in the will,
however, the same was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by
Act No. 2645, which requires that the attestation clause shall state the number
of pages or sheets upon which the will is written, which requirement has been
held to be mandatory as an effective safeguard against the possibility of
interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re Will of Andrada,
42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho,
50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that the attestation clause
must contain a statement of the number of sheets or pages composing the will
and that if this is missing or is omitted, it will have the effect of invalidating the
will if the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is different.
While the attestation clause does not state the number of sheets or pages upon
which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it within the realm
of similar cases where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have
been a fatal defect were it not for the fact that, in this case, it is discernible from
the entire will that it is really and actually composed of only two pages duly
signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by
the testatrix at the end or at the bottom while the instrumental witnesses signed
at the left margin. The other page which is marked as "Pagina dos" comprises
the attestation clause and the acknowledgment. The acknowledgment itself
states that "this Last Will and Testament consists of two pages including this
page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not
stated in any part of the Will. The will does not even contain any notarial
21
acknowledgment wherein the number of pages of the will should be stated.
Both Uy Coque and Andrada were decided prior to the enactment of the Civil
Code in 1950, at a time when the statutory provision governing the formal
requirement of wills was Section
22
618 of the Code of Civil Procedure. Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages
23
of the will is extant from Section 618. However, the enactment of the Civil
Code in 1950 did put in force a rule of interpretation of the requirements of wills,
at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states:
"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."
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that "the underlying and fundamental objective permeating the provisions
on the [law] on [wills] in this project consists in the [liberalization] of the manner
of their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern
24
tendency] in respect to the formalities in the execution of wills." However,
petitioner conveniently omits the qualification offered by the Code Commission
in the very same paragraph he cites from their report, that such liberalization be
"but with sufficient safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure and influence upon the
25
testator."
26
other must substantially appear in the attestation clause, being the only
29
check against perjury in the probate proceedings. (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure to state the number of pages of
the will in the attestation clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the probate of a will
whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each
30
other, the other omission cited by Justice J.B.L. Reyes which to his estimation
cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is
that omission which can be supplied by an examination of the will itself, without
the need of resorting to extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will
31
itself." Thus, a failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to state that the witnesses
signed in one anothers presence should be considered a fatal flaw since the
32
attestation is the only textual guarantee of compliance.
The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the law
in requiring the clause to state the number of pages on which the will is written is
to safeguard against possible interpolation or omission of one or some of its
33
pages and to prevent any increase or decrease in the pages. The failure to
state the number of pages equates with the absence of an averment on the part
of the instrumental witnesses as to how many pages consisted the will, the
execution of which they had ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this requirement if the
will states elsewhere in it how many pages it is comprised of, as was the
situation in Singson and Taboada. However, in this case, there could have been
no substantial compliance with the requirements under Article 805 since there is
no statement in the attestation clause or anywhere in the will itself as to the
number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with
the formal requirements as enumerated under Article 805. Whatever the
inclinations of the members of the Code Commission in incorporating Article
805, the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the forgery or
Cagro v. Cagro is material on this point. As in this case, "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 left37
38
hand margin." While three (3) Justices considered the signature requirement
had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed,
rendering the will fatally defective.
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
39
testator and any or all of the witnesses.
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses sign
each page of the will, from the requisite that the will be "attested and subscribed
by [the instrumental witnesses]." The respective intents behind these two
classes of signature are distinct from each other. The signatures on the left-hand
corner of every page signify, among others, that the witnesses are aware that
the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to
the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned
attestation clause, such signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do appear on the page
were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page
containing such clause. Without diminishing the value of the instrumental
witnesses signatures on each and every page, the fact must be noted that it is
the attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not the testator,
who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof in the
will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by
the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805
and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in
compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa
40
Lungsod ng Maynila." By no manner of contemplation can those words be
construed as an acknowledgment. An acknowledgment is the act of one who
has executed a deed in going before some competent officer or court and
41
declaring it to be his act or deed. It involves an extra step undertaken whereby
the signor actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to
42
by the executor. Ordinarily, the language of the jurat should avow that the
document was subscribed and sworn before the notary public, while in this case,
the notary public averred that he himself "signed and notarized" the document.
Possibly though, the word "ninotario" or "notarized" encompasses the signing of
and swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is
that the will be "acknowledged", and not merely subscribed and sworn to. The
will does not present any textual proof, much less one under oath, that the
decedent and the instrumental witnesses executed or signed the will as their
own free act or deed. The acknowledgment made in a will provides for another
all-important legal safeguard against spurious wills or those made beyond the
free consent of the testator. An acknowledgement is not an empty meaningless
43
act. The acknowledgment coerces the testator and the instrumental witnesses
to declare before an officer of the law that they had executed and subscribed to
the will as their own free act or deed. Such declaration is under oath and under
pain of perjury, thus allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those executed without the free
consent of the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions to those
persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied
by the will in question. We need not discuss them at length, as they are no
longer material to the
disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left margin,
except the last; and that all the pages shall be numbered correlatively in letters
placed on the upper part of each page. In this case, the decedent, unlike the
witnesses, failed to sign both pages of the will on the left margin, her only
44
signature appearing at the so-called "logical end" of the will on its first page.
Also, the will itself is not numbered correlatively in letters on each page, but
instead numbered with Arabic numerals. There is a line of thought that has
45
disabused the notion that these two requirements be construed as mandatory.
Taken in isolation, these omissions, by themselves, may not be sufficient to
deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they
may be of a general lack of due regard for the requirements under Article 805 by
whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes
the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
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.
10
11
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.
12
13
14
X. The Court of Appeals erred in reversing the decision of the trial court and
admitting to probate Exhibit "F", the alleged last will and testament of the
deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are
substantially factual in character and content. Hence, at the very outset, We
must again state the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals are not reviewable, the
same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30,
12
1970, 33 SCRA 737, 743) and Tapas vs. CA (L-22202, February 27; 1976, 69
13
SCRA 393),
and in the more recent cases of Baptisia vs. Carillo and CA
(L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of
Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of
Chan vs. CA, this Court said:
I. The respondent Court of Appeals erred in holding that the document, Exhibit
"F" was executed and attested as required by law when there was absolutely no
proof that the three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the
preparation and execution of the win Exhibit "F", was unexpected and
coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to
enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten
lines under the typewritten words "Pangalan" and "Tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the
same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was
incredible that Isabel Gabriel could have dictated the wilt Exhibit "F , without any
note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that
Matilde Orobia was not physically present when the Will Exhibit "F" was
allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions,
evasions, and misrepresentations of witnesses (subscribing and notary)
presented by the petitioner had been explained away, and that the trial court
erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so
far departed from the accepted and usual course of judicial proceedings, as to
call for an exercise of the power of supervision.
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then
Justice Recto, it has been well-settled that the jurisdiction of tills Court in cases
brought to us from the Court of Appeals is limited to reviewing and revising the
errors of law imputed to it, its findings of fact being conclusive. More specifically,
in a decision exactly a month later, this Court, speaking through the then Justice
Laurel, it was held that the same principle is applicable, even if the Court of
Appeals was in disagreement with the lower court as to the weight of the
evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by
substantive evidence are not reviewable on appeal by certiorari. Said findings of
the appellate court are final and cannot be disturbed by Us particularly because
its premises are borne out by the record or based upon substantial evidence and
what is more, when such findings are correct. Assignments of errors involving
factual issues cannot be ventilated in a review of the decision of the Court of
Appeals because only legal questions may be raised. The Supreme Court is not
at liberty to alter or modify the facts as set forth in the decision of the Court of
Appeals sought to be reversed. Where the findings of the Court of Appeals are
contrary to those of the trial court, a minute scrutiny by the Supreme Court is in
order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed
to consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of
Appeals erred in holding that the document, Exhibit "F", was executed and
attested as required by law when there was absolutely no proof that the three
15
instrumental witnesses were credible witnesses. She argues that the require.
ment in Article 806, Civil Code, that the witnesses must be credible is an
absolute requirement which must be complied with before an alleged last will
and testament may be admitted to probate and that to be a credible witness,
there must be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first
established, his testimony may not be favorably considered. Petitioner contends
that the term "credible" is not synonymous with "competent" for a witness may
be competent under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is further urged that the
term "credible" as used in the Civil Code should receive the same settled and
well- known meaning it has under the Naturalization Law, the latter being a
kindred legislation with the Civil Code provisions on wigs with respect to the
qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil
Code provides the qualifications of a witness to the execution of wills while
Article 821 sets forth the disqualification from being a witness to a win. These
Articles state:
Art. 820. Any person of sound mind and of the age of eighteen
years or more, and not blind, deaf or dumb, and able to read
and write, may be a witness to the execution of a will mentioned
in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially
or at any time during the trial as to his good standing in the community, his
reputation for trustworthythiness and reliableness, his honesty and uprightness
in order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18 years or
more) is shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is
able to read and write to the satisfaction of the Court, and that he has none of
the disqualifications under Article 821 of the Civil Code. We reject petitioner's
contention that it must first be established in the record the good standing of the
witness in the community, his reputation for trustworthiness and reliableness, his
honesty and uprightness, because such attributes are presumed of the witness
unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as
used in the Civil Code should be given the same meaning it has under the
Naturalization Law where the law is mandatory that the petition for naturalization
must be supported by two character witnesses who must prove their good
standing in the community, reputation for trustworthiness and reliableness, their
honesty and uprightness. The two witnesses in a petition for naturalization are
character witnesses in that being citizens of the Philippines, they personally
know the petitioner to be a resident of the Philippines for the period of time
required by the Act and a person of good repute and morally irreproachable and
that said petitioner has in their opinion all the qualifications necessary to become
a citizen of the Philippines and is not in any way disqualified under the
provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as
amended).
In probate proceedings, the instrumental witnesses are not character witnesses
for they merely attest the execution of a will or testament and affirm the
formalities attendant to said execution. And We agree with the respondent that
the rulings laid down in the cases cited by petitioner concerning character
witnesses in naturalization proceedings are not applicable to instrumental
witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental
witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are
competent and credible is satisfactorily supported by the evidence as found by
the respondent Court of Appeals, which findings of fact this Tribunal is bound to
accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a
holographic will, must be subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another, While the
petitioner submits that Article 820 and 821 of the New Civil Code speak of the
competency of a witness due to his qualifications under the first Article and none
of the disqualifications under the second Article, whereas Article 805 requires
the attestation of three or more credible witnesses, petitioner concludes that the
term credible requires something more than just being competent and, therefore,
16
a witness in addition to being competent under Articles 820 and 821 must also
be a credible witness under Article 805.
County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
1010. (Words and Phrases, Vol. 10, p. 340).
Private respondent maintains that the qualifications of the three or more credible
witnesses mentioned in Article 805 of the Civil Code are those mentioned in
Article 820 of the same Code, this being obvious from that portion of Article 820
which says "may be Q witness to the execution of a will mentioned in Article 805
of this Code," and cites authorities that the word "credible" insofar as witnesses
to a will are concerned simply means " competent." Thus, in the case of Suntay
vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was
duly executed and that it was in existence at the time of, and not revoked before,
the death of the testator, still the provisions of the lost wig must be clearly and
distinctly proved by at least two credible witnesses. 'Credible witnesses' mean
competent witnesses and not those who testify to facts from or upon hearsay. "
emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the
Supreme Court held that "Section 620 of the same Code of Civil Procedure
provides that any person of sound mind, and of the age of eighteen years or
more, and not blind, deaf, or dumb and able to read and write, may be a witness
to the execution of a will. This same provision is reproduced in our New Civil
Code of 1950, under Art. 820. The relation of employer and employee, or being
a relative to the beneficiary in a win, does not disqualify one to be a witness to a
will. The main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is that said
witness must be credible, that is to say, his testimony may be entitled to
credence. There is a long line of authorities on this point, a few of which we may
cite:
A 'credible witness is one who is not is not to testify by mental
incapacity, crime, or other cause. Historical Soc of Dauphin
17
testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya
to proceed to Isabel Gabriel's house which was nearby and from said house,
they left in a car to the lawyer's office, which testimonies are recited in the
respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and
his wife Maria Gimpaya obtained residence certificates a few days before Exhibit
"F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was
issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence
certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961.
The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and
one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified
that they would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the
office of Atty. Paraiso was planned by the deceased, which conclusion was
correctly drawn from the testimony of the Gimpaya spouses that they started
from the Navotas residence of the deceased with a photographer and Isabel
Gabriel herself, then they proceeded by car to Matilde Orobia's house in
Philamlife, Quezon City to fetch her and from there, all the three witnesses (the
Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about
ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous
to the day that. the will was executed on April 15, 1961, Isabel Gabriel had
requested him to help her in the execution of her will and that he told her that if
she really wanted to execute her will, she should bring with her at least the
Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty.
Paraiso) wanted a medical certificate from a physician notwithstanding the fact
that he believed her to be of sound and disposition mind. From this evidence,
the appellate court rightly concluded, thus: "It is, therefore, clear that the
presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya
and Maria Gimpaya including the photographer in the law office of Atty. Paraiso
was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to
type such data into the document Exhibit ' L which the petitioner assails as
contradictory and irreconcilable with the statement of the Court that Atty. Paraiso
was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel
18
Gabriel and this was corroborated by Atty. Paraiso himself who testified that it
was only on said occasion that he received such list from Isabel Gabriel, We
cannot agree with petitioner's contention. We find no contradiction for the,
respondent Court held that on the occasion of the will making on April 15, 1961,
the list was given immediately to Atty. Paraiso and that no such list was given
the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and
residence certificates of the witnesses on a prior occasion or on the very
occasion and date in April 15, 1961 when the will was executed, is of no
moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion,
April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the
testatrix and the witnesses before a notary public, the same is a public
document executed and attested through the intervention of the notary public
and as such public document is evidence of the facts in clear, unequivocal
manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more
than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such
evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the
three typewritten lines under the typewritten words "pangalan ' and "tinitirahan"
were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion merits Our approval because tills conclusion is
supported and borne out by the evidence found by the appellate court, thus: "On
page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.
date issued" and place issued the only name of Isabel Gabriel with Residence
Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal
appears to be in typewritten form while the names, residence tax certificate
numbers, dates and places of issuance of said certificates pertaining to the three
(3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides
with Atty. Paraiso's even the sale must be made to close relatives; and the
seventh was the appointment of the appellant Santiago as executrix of the will
without bond. The technical description of the properties in paragraph 5 of
Exhibit F was not given and the numbers of the certificates of title were only
supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the
properties disposed and the docket number of a special proceeding are
indicated which Atty. Paraiso candidly admitted were supplied by him,
whereupon petitioner contends that it was incredible that Isabel Gabriel could
have dictated the will Exhibit "F" without any note or document to Atty. Paraiso,
considering that Isabel Gabriel was an old and sickly woman more than eighty-
one years old and had been suffering from a brain injury caused by two severe
blows at her head and died of terminal cancer a few weeks after the execution of
Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary
capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of
Appeals that the testatrix dictated her will without any note or memorandum
appears to be fully supported by the following facts or evidence appearing on
record. Thus, Isabel Gabriel, despite her age, was particularly active in her
business affairs as she actively managed the affairs of the movie business
ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days
before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her
deceased husband Eligio Naval. The text of the win was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree
with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both
testimonial and documentary is, according to the respondent court,
overwhelming that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very
clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia
was physically present when the will was signed by Isabel Gabriel on April '15,
1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial
court's conclusion that Orobia's admission that she gave piano lessons to the
child of the appellant on Wednesdays and Saturdays and that April 15, 1961
happened to be a Saturday for which reason Orobia could not have been
present to witness the will on that day is purely conjectural. Witness Orobia
did not admit having given piano lessons to the appellant's child every
Wednesday and Saturday without fail. It is highly probable that even if April 15,
1961 were a Saturday, she gave no piano lessons on that day for which reason
she could have witnessed the execution of the will. Orobia spoke of occasions
when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons
on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya that Matilde was present on April 15, 1961 and that she signed the
attestation clause to the will and on the left-hand margin of each of the pages of
the will, the documentary evidence which is the will itself, the attestation clause
and the notarial acknowledgment overwhelmingly and convincingly prove such
19
fact that Matilde Orobia was present on that day of April 15, 1961 and that she
witnessed the will by signing her name thereon and acknowledged the same
before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which
Matilde Orobia signed is the best evidence as to the date of signing because it
preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which 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 in the memory of the
subscribing witnesses, or other casualty they may still be proved. (Thompson on
Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in
holding that the trial court gave undue importance to the picture-takings as proof
that the win was improperly executed, We agree with the reasoning of the
respondent court that: "Matilde Orobia's Identification of the photographer as
"Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr.,
is at worst a minor mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation of the will. The fact that
Miss Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely
detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken
which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya.
" Further, the respondent Court correctly held: "The trial court gave undue
importance to the picture takings, jumping therefrom to the conclusion that the
will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by
Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were
quite emphatic and positive when they spoke of this occasion. Hence, their
Identification of some photographs wherein they all appeared along with Isabel
Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picturetaking was disclosed at the cross examination of Celso Gimpaya. But this was
explained by Atty. Paraiso as a reenactment of the first incident upon the
insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not pointless. What was
important was that the will was duly executed and witnessed on the first
occasion on April 15, 1961 , " and We agree with the Court's rationalization in
conformity with logic, law and jurisprudence which do not require picture-taking
as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and
misrepresentations of witnesses in their respective testimonies before the trial
court. On the other hand, the respondent Court of Appeals held that said
20
Matilde Orobia to witness the signing of her will, then it becomes the duty of the
appellate court to reverse findings of fact of the trial court in the exercise of its
appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the
judgment of the Court of Appeals is conclusive as to the facts and cannot be
reviewed by the Supreme Court. Again We agree with the petitioner that among
the exceptions are: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion;
(4) when the presence of each other as required by law. " Specifically, We affirm
that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia,
Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a
car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in
the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving
at the latter's office and told the lawyer that she wanted her will to be made; that
Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the
will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a
language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed
the will and after finishing the document, he read it to her and she told him that it
was alright; that thereafter, Isabel Gabriel signed her name at the end of the will
in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and
Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter
Matilde Orobia attested the will by signing her name at the end of the attestation
clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the
presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and
Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the
document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya;
that Maria Gimpaya followed suit, signing her name at the foot of the attestation
clause and at the left-hand margin of every page in the presence of Isabel
Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial
Register. On the occasion of the execution and attestation of the will, a
photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the
testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken
on said occasion of the signing of the will, and another, Exhibit "H", showing
Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to
bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her
witnesses for he did not know beforehand the Identities of the three attesting
witnesses until the latter showed up at his law office with Isabel Gabriel on April
15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down in
his own hand the date appearing on page 5 of Exhibit "F" dissipates any
lingering doubt that he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible
that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or
document to Atty. Paraiso as against the contention of petitioner that it was
incredible. This ruling of the respondent court is fully supported by the evidence
on record as stated in the decision under review, thus: "Nothing in the record
supports the trial court's unbelief that Isabel Gabriel dictated her will without any
note or document to Atty. Paraiso. On the contrary, all the three attesting
witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso
and that other than the piece of paper that she handed to said lawyer she had
no note or document. This fact jibes with the evidence which the trial court
itself believed was unshaken that Isabel Gabriel was of sound disposing
memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but
quite simple. The first was Isabel Gabriel's wish to be interred according to
Catholic rites the second was a general directive to pay her debts if any; the
third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago
and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee the fifth was the institution of the petitioner-appellant,
Lutgarda Santiago as the principal heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the remainder of her estate which she
willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on
a misapprehension of facts; (5) when the findings of fact are conflicting, (6)
when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee.
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola
Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R.
No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall
within any of the exceptions enumerated above. We likewise hold that the
findings of fact of the respondent appellate court are fully supported by the
evidence on record. The conclusions are fully sustained by substantial evidence.
We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting. Hence, the wellestablished rule that the decision of the Court of Appeals and its findings of fact
are binding and conclusive and should not be disturbed by this Tribunal and it
must be applied in the case at bar in its full force and effect, without qualification
or reservation. The above holding simply synthesize the resolutions we have
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original of the will. (See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17 SCRA
482, 486.)
The case was brought to this Court by means of a petition for mandamus to
compel the lower court to allow petitioner's appeal from its decision. In this
Court's resolution of January 21, 1980 the petition for mandamus was treated in
the interest of substantial and speedy justice as an appeal under Republic Act
No. 5440 as well as a special civil action of certiorari under Rule 65 of the Rules
of Court.
We hold that the lower court manifestly erred in declaring that, because no
documentary stamp was affixed to the will, there was "no will and testament to
probate" and, consequently, the alleged "action must of necessity be
dismissed".
What the probate court should have done was to require the petitioner or
proponent to affix the requisite thirty-centavo documentary stamp to the notarial
acknowledgment of the will which is the taxable portion of that document.
That procedure may be implied from the provision of section 238 that the nonadmissibility of the document, which does not bear the requisite documentary
stamp, subsists only "until the requisite stamp or stamps shall have been affixed
thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the time the
taxable document is presented in evidence (Del Castillo vs. Madrilena 49 Phil.
749). If the promissory note does not bear a documentary stamp, the court
should have allowed plaintiff's tender of a stamp to supply the deficiency.
(Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs.
Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document
does not invalidate such document. See Cia. General de Tabacos vs.
Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16
Phil. 403, 405-6.)
WHEREFORE, the lower court's dismissal of the petition for probate is reversed
and set aside. It is directed to decide the case on the merits in the light of the
parties' evidence. No costs.
SO ORDERED.
Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ. concur.
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