CRUZ vs VILLASOR
53 SCRA 31 (1973)
DOCTRINE: The notary public cannot be counted as one of the
attesting witness.
ESGUERRA, J.:
The only question presented for determination, on which the
decision of this case hinges, is whether the supposed Last
Will and Testament of Valente Z. Cruz (Cruz) was executed
in accordance with:
o Art. 805- which states at at least three credible
witnesses must attest and subscribe to the will and
o Art. 806- requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses on the supposed Last
Will and Testament of Cruz, one of them, Atty. Angel Teves
(Teves), acted also as the notary public before whom the will
was supposed to have been acknowledged. The petitioner
argues that as a result thereof, the will has only two
witnesses who appeared before the notary public to
acknowledge the will.
The respondent, Lugay, who is supposed to execute the will,
stated that there was substantial compliance with the legal
requirement of three attesting witnesses, even if one of them
acted as a notary public based on American jurisprudence.
ISSUE:
WON the notary public be considered as the third attesting witness?
HELD: NO
The probate of the Last will and Testament of Cruz is
declared not valid and set aside.
The notary public cannot acknowledge before himself his having
signed the will. If the third witness is the notary public himself, he
would have to avow, assent or admit as 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.
The function of a notary public is to guard against any illegal or
immoral arrangements. That would be defeated if he was also the
attesting witness. He would be interested in sustaining the validity
of the will, as it directly involves himself and the validity of his
own act. It would place him in an inconsistent position and the
very purpose of the acknowledgment, which is to minimize fraud.
American jurisprudence cannot be used here for we are in
Philippine jurisdiction. In the U.S., the notary public and witnesses
referred to in several jurisprudence merely acted as instrumental,
subscribing or attesting witnesses and not as acknowledging
witnesses. Here, the notary public acted not only as attesting
witness but also as acknowledging witness.
In allowing the notary public to act as third witness, or one of the
attesting and acknowledging witness, would have the effect of
only two attesting witnesses to the will which is violative of Art.
805 requiring at least 3 witnesses and Art. 806 which requires the
testator and the required number of witnesses to appear before the
notary public to acknowledge the will.