BEATRIZ

NERA,
ET
AL.,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio
Fontanilla
and
Anacleto Diaz for appellees.

Andres

plaintiffs-appellees,

Asprer

for

appellant.

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.

In the Matter of the Probate of the Last Will and Testament of the Deceased
Brigido
Alvarado,
CESAR
ALVARADO,
petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the
late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and
expressly revoked a previously executed holographic will at the time awaiting
probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final
draft of the will himself. Instead, private respondent, as the lawyer who drafted the
eight-paged document, read the same aloud in the presence of the testator, the
three instrumental witnesses and the notary public. The latter four followed the
reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9
December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan
ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may
Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some
dispositions in the notarial will to generate cash for the testator's eye operation.
Brigido was then suffering from glaucoma. But the disinheritance and revocatory
clauses were unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private respondent who
read it aloud in his presence and in the presence of the three instrumental
witnesses (same as those of the notarial will) and the notary public who followed
the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with the
Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5Petitioner,
in turn, filed an Opposition on the following grounds: that the will sought to be

probated was not executed and attested as required by law; that the testator was
insane or otherwise mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was executed under duress, or
influence of fear and threats; that it was procured by undue and improper pressure
and influence on the part of the beneficiary who stands to get the lion's share of
the testator's estate; and lastly, that the signature of the testator was procured by
fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in
the Opposition, a Probate Order was issued on 27 June 1983 from which an
appeal was made to respondent court. The main thrust of the appeal was that the
deceased was blind within the meaning of the law at the time his "Huling Habilin"
and the codicil attached thereto was executed; that since the reading required by
Art. 808 of the Civil Code was admittedly not complied with, probate of the
deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with
the following findings: that Brigido Alvarado was not blind at the time his last will
and codicil were executed; that assuming his blindness, the reading requirement
of Art. 808 was substantially complied with when both documents were read aloud
to the testator with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there
was substantial compliance since its purpose of making known to the testator the
contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for
purpose of Art, 808 at the time his "Huling Habilin" and its codicil were executed?
If so, was the double-reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3) feet" by
reason of the glaucoma which he had been suffering from for several years and
even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido
as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of
the subscribing witnesses, and again, by the notary public before whom the will is

acknowledged.
Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it
is used in Art. 808. To support his stand, petitioner presented before the trial court
a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute), 6 the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was
admitted by private respondent. 7 Dr. Roasa explained that although the testator
could visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony, held
that the testator could still read on the day the will and the codicil were executed
but chose not to do so because of "poor eyesight." 9 Since the testator was still
capable of reading at that time, the court a quo concluded that Art. 808 need not
be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable
of reading at the time his will and codicil were prepared, the fact remains and this
was testified to by his witnesses, that Brigido did not do so because of his "poor,"
10
"defective," 11 or "blurred" 12 vision making it necessary for private respondent to
do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the
scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind
or incapable of reading the will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also
to those who, for one reason or another, are "incapable of reading the(ir) will(s)."
Since Brigido Alvarado was incapable of reading the final drafts of his will and
codicil on the separate occasions of their execution due to his "poor," "defective,"
or "blurred" vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term "blind" as it is used in Art. 808.
Unless the contents were read to him, he had no way of ascertaining whether or
not the lawyer who drafted the will and codicil did so confortably with his

instructions. Hence, to consider his will as validly executed and entitled to probate,
it is essential that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be
read twice; once, by one of the instrumental witnesses and, again, by the notary
public before whom the will was acknowledged. The purpose is to make known to
the incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public
and an instrumental witness, it was the lawyer (private respondent) who drafted
the eight-paged will and the five-paged codicil who read the same aloud to the
testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that
the single reading suffices for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental witness read the
contents of the will and codicil to Brigido, probate of the latter's will and codicil
should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being that
the solemnities surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in
the presence of the testator, his three instrumental witnesses, and the notary
public. Prior and subsequent thereto, the testator affirmed, upon being asked, that
the contents read corresponded with his instructions. Only then did the signing
and acknowledgement take place. There is no evidence, and petitioner does not
so allege, that the contents of the will and codicil were not sufficiently made known
and communicated to the testator. On the contrary, with respect to the "Huling
Habilin," the day of the execution was not the first time that Brigido had affirmed
the truth and authenticity of the contents of the draft. The uncontradicted testimony
of Atty. Rino is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence precisely for the purpose of

securing his conformity to the draft.

15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia
de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the testator whether
the contents of the document were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word for word with their own
copies, it can be safely concluded that the testator was reasonably assured that
what was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten documents.
This is especially true when we consider the fact that the three instrumental
witnesses were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him since
childhood.
The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in order to
insure the authenticity of the will, the formal imperfections should be brushed
aside when they do not affect its purpose and which, when taken into account,
may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate
Order and its affirmance by the Court of Appeals, we quote the following
pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other
hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's will, must be disregarded (emphasis
supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in
his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these
aside fro the mere reason that a legal requirement intended for his protection was
not followed strictly when such compliance had been rendered unnecessary by the

fact that the purpose of the law, i.e., to make known to the incapacitated testator
the contents of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent
Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time
that this case has remained pending, this decision is immediately executory. Costs
against petitioner.

FELIX
AZUELA,
Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO
G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court
is provided the opportunity to assert a few important doctrinal rules in the
execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose attestation clause is
not signed by the instrumental witnesses is fatally defective. And perhaps
most importantly, a will which does not contain an acknowledgment, but a
mere jurat, is fatally defective. Any one of these defects is sufficient to deny
probate. A notarial will with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a notarial will.
Full and faithful compliance with all the detailed requisites under Article 805 of the
Code leave little room for doubt as to the validity in the due execution of the
notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a notary public by the testator
and the witnesses. A notarial will executed with indifference to these two codal

provisions opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional
Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10
June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in
full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko
lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sangayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat
(Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin
ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang
panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na
pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng
karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24,
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang
pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng
huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak
ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA

E.

IGSOLO

(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayon 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.
EUGENIA
E.
address:
500
Sampaloc,
Manila
Res.
Issued at Manila on March 10, 1981.

IGSOLO
San
Diego
Cert.
No.

QUIRINO
address:
1228-Int.
Pandacan,
Manila
Res.
Issued at Manila on Jan. 21, 1981

AGRAVA
3,
Cert.

No.

LAMBERTO
C.
LEAO
address:
Avenue
2,
Blcok
Lot
61,
San
Gabriel,
G.MA.,
Cavite
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO
ESTRERA
address:
City
Court
City
of
Manila
Res.
Cert.
Issued at Manila on March 2, 1981.

No.

St.
A-7717-37

Kahilum
A-458365

7,
Res.

Compound,
A574829

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng

Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc.
Page
Book

No.
No.
No.

1232
86

;
43

;
Until
;

NOTARIO
PUBLIKO
Dec.
31,
1981
PTR-152041-1/2/81-Manila

Series of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged
to have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
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
decedent.2 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
properties of the decedent.3 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 in 1965, 4 and
the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother
by three (3) months.5
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
1992.6 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 in
expressing his last wishes;"7 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

and the due execution of the will.8

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
the dismissal of the petition for probate.9 The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
rendering the will void and undeserving of probate. 10
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
as "the substantial compliance rule."11
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
of pages of the will.12 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
the process Uy Coque v. Navas L. Sioca 13 and In re: Will of Andrada.14 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 will. 15
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 much greater difficulty." 16
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 defect
pointed out in the attesting clause is fatal." 17 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 fit to prescribe
this requirement, it must be considered material." 18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v.
Hon. Rosal,20 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 165165, 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
acknowledgment wherein the number of pages of the will should be stated. 21
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
618 of the Code of Civil Procedure. 22 Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages of
the will is extant from Section 618. 23 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 tendency]
in respect to the formalities in the execution of wills." 24 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 testator." 25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice

Regalado, speaking for the Court on the conflicting views on the manner of interpretation
of the legal formalities required in the execution of the attestation clause in wills. 27 Uy
Coque and Andrada are cited therein, along with several other cases, as examples of the
application of the rule of strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under
Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article
809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied
by an examination of the will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All these are facts that
the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages,
and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only
check against perjury in the probate proceedings.29 (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 other, 30
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 itself." 31
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
attestation is the only textual guarantee of compliance. 32
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 pages
and to prevent any increase or decrease in the pages. 33 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 intercalation of notarial
wills.34 Compliance with these requirements, however picayune in impression,
affords the public a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner established in the will. 35
The transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the testators
incontestable desires, and not for the indulgent admission of wills to
probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the lefthand margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public.
Cagro v. Cagro36 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 left-hand
margin."37 While three (3) Justices38 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 testator and
any or all of the witnesses.39
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
Lungsod ng Maynila."40 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 declaring it
to be his act or deed.41 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 by
the executor.42 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 act. 43 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
signature appearing at the so-called "logical end" 44 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
disabused the notion that these two requirements be construed as
mandatory.45Taken 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.

ROSA
K.
KALAW,
petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas,
Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be
the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the
Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her
holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City,
being of sound and disposing mind and memory, do hereby declare thus to be my
last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City.
In accordance with the rights of said Church, and that my executrix hereinafter
named provide and erect at the expose of my state a suitable monument to
perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will contained
alterations, corrections, and insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a

holographic will the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given
effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197
3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of Investigation
for examination. The NBI reported that the handwriting, the signature, the
insertions and/or additions and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to
probate although the alterations and/or insertions or additions above-mentioned
were not authenticated by the full signature of the testatrix pursuant to Art. 814 of
the Civil Code. The petitioner contends that the oppositors are estopped to assert
the provision of Art. 814 on the ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad K.
Kalaw, the Court will deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the
alterations and/or insertions were the testatrix, the denial to probate of her
holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the ground
that "Article 814 of the Civil Code being , clear and explicit, (it) requires no
necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated
November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not the original unaltered text

after subsequent alterations and insertions were voided by the Trial Court for lack
of authentication by the full signature of the testatrix, should be probated or not,
with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will litem not been noted under his signature, ... the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined.1 Manresa gave an Identical
commentary when he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by the
full signature of the testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should be given efficacy is
to disregard the seeming change of mind of the testatrix. But that change of mind
can neither be given effect because she failed to authenticate it in the manner
required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the
efficacy of the altered words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with certitude. As Manresa
had stated in his commentary on Article 688 of the Spanish Civil Code, whence
Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya
por estar esa disposicion en parrafo aparte de aquel que determine las
condiciones necesarias para la validez del testamento olografo, ya porque, de
admitir lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no
salvadas, que en nada afectasen a la parte esencial y respectiva del testamento,
vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de
entenderse en perfecta armonia y congruencia con el art. 26 de la ley del
Notariado que declara nulas las adiciones apostillas entrerrenglonados,

raspaduras y tachados en las escrituras matrices, siempre que no se salven en la

forma prevenida, paro no el documento que las contenga, y con mayor motivo
cuando las palabras enmendadas, tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del pensamiento del testador, o
constituyan meros accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien de modo substancial la
express voluntad del testador manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo
por no estar salvada por el testador la enmienda del guarismo ultimo del ao en
que fue extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent
Judge, dated September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.

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
respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses
even if the notary public acted as one of them, bolstering up his stand with 57
American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to
an acknowledgment of the testator's signature under oath rather than as attesting
the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to
sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro,

100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in
front or preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard
Dictionary of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public
himself, he would have to avow assent, or admit his having signed the will in front
of himself. This cannot be done because he cannot split his personality into two so
that one will appear before the other to acknowledge his participation in the
making of the will. To permit such a situation to obtain would be sanctioning a
sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any
illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function
would defeated if the notary public were one of the attesting instrumental
witnesses. For them he would be interested sustaining the validity of the will as it
directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to
minimize fraud (Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill.
130). There are others holding that his signing merely as notary in a will
nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson
Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132
A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do
not serve the purpose of the law in this jurisdiction or are not decisive of the issue
herein because the notaries public and witnesses referred to aforecited cases
merely acted as instrumental, subscribing attesting witnesses, and not as
acknowledging witnesses. He the notary public acted not only as attesting witness
but also acknowledging witness, a situation not envisaged by Article 805 of the
Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will or file another with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of Article 80
be requiring at least three credible witnesses to act as such and of Article 806

which requires that the testator and the required number of witnesses must appear
before the notary public to acknowledge the will. The result would be, as has been
said, that only two witnesses appeared before the notary public for or that
purpose. In the circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and
the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is
declared not valid and hereby set aside.