Caneda vs.

CA

Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not
the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the
twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting
witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by
his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will.1 It
was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and
personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera
and Marcosa Alcantara, all of whom do not appear to be related to the testator.2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No.
3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament.
The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings
were postponed for one reason to another. On May 29, 1980, the testator passed away before his petition could
finally be heard by the probate court.3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will,
sough his appointment as special administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981.4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition,
entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R,
before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their
said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special
administrator for his estate.5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial
Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it
issued an order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate
proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was reraffled
and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of
the probate proceedings.6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and
objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the testator
was already in the poor state of health such that he could not have possibly executed the same. Petitioners likewise
reiterated the issue as to the genuineness of the signature of the testator therein.7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos,
testified that the testator executed the will in question in their presence while he was of sound and disposing mind
and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly
influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and
signed the will in the presence of the testator and of each other. The other two attesting witnesses were not
presented in the probate hearing as the had died by then.8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament
of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of
Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the Last
Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero
who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked
Exhibit "D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of
the NBI but it would seem that despite their avowal and intention for the examination of this signature of Mateo
Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it
was executed in accordance with all the requisites of the law.9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-
G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation
clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the
testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence
of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that
the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code,
thus:

The question therefore is whether the attestation clause in question may be considered as having substantialy
complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each
page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament, and he has
signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the
said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another.
Or as the language of the law would have it that the testator signed the will "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 not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the
phrase as formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the
latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court
has ruled upon said issue in a manner not in accord with the law and settled jurisprudence on the matter and are
now questioning once more, on the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations
which we feel should be made in aid of the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed
by law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are
two kinds of wills which a testator may execute.14 the first kind is the ordinary or attested will, the execution of
which is governed by Articles 804 to 809 of the Code. Article 805 requires that:

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 should 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 witness, it shall be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting
witness. 15hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires
that he must personally read the will, if able to do so. Otherwise, he should designate two persons who would read
the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the
will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public
before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and
signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of will is that they should be in writing and must have been executed in a
language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or
dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the language
used in the attestation clause likewise need not even be known to the attesting witnesses. 18 The last paragraph of
Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of the execution the same. 19 It is a separate
memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives
affirmation to the fact that compliance with the essential formalities required by law has been observed. 20 It is
made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a
particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may
still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of
the will, 22 should state (1) the number of the pages used upon which the will is written; (2) that the testator signed,
or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and
(3) that the attesting witnesses witnessed the signing by the testator of the will and all its
pages, and that saidwitnesses also signed the will and every page thereof in the presence of the testator and of one
another.

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;23 whereas the subscription of the signature of the testator and the attesting witnesses is
made for the purpose of authentication and identification, and thus indicates that the will is the very same
instrument executed by the testator and attested to by the witnesses.24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as
embodied in the attestation clause.25 The attestation clause, therefore, provide strong legal guaranties for the due
execution of a will and to insure the authenticity thereof.26 As it appertains only to the witnesses and not to the
testator, it need be signed only by them.27 Where it is left unsigned, it would result in the invalidation of the will as it
would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and its
witnesses.28

In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed
in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on wills in this Project consists in
the liberalization of the manner of their execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. . . .29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of
which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures
of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in
question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three
attesting witnesses hereto.30 Since it is the proverbial bone of contention, we reproduce it again for facility of
reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our
respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO;
has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the
same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence
of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence
of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of
senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to
know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but
to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole
purpose of identification.31

In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's execution of the will in order
to see and take note mentally that those things are done which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination
of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is
substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements
of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that
the attesting witnesses the testator sign the will and all its pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the presence of the testator and of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites
that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states
as well the number of pages that were used, the same does not expressly state therein the circumstance that said
witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the
left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded
by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the
testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis ,
is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one
another.

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which
must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are
correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as
merely involving the form of the will or the language used therein which would warrant the application of the
substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not
proved that the will was in fact executed and attested in substantial compliance with all the requirements of article
805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of
each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not
prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The
execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity.33

We believe that the further comment of former Justice J.B.L. Reyes34 regarding Article 809, wherein he urged caution
in the application of the substantial compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:

. . . 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 theses 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. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form
of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid
should it be proved that the will was really executed and attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the presence of the testator and of each other.35 In such a
situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect
complained of in the present case since there is no plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the
signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since
it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause
or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will. In other words, defects must be remedied by
intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be
supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis
whatsoever from with such facts may be plausibly deduced. What private respondent insists on are the testimonies
of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses,
oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be
doing by the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of
interpretation should be followed in resolving issues centering on compliance with the legal formalities required in
the execution of wills. The formal requirements were at that time embodied primarily in Section 618 of Act No. 190,
the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting said
formalities found in Act. No. 190 and the amendment thereto were practically reproduced and adopted in the Civil
Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs.
Abangan,36 where it was held that the object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that 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, hence when an interpretation already given assures
such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded. The subsequent cases of Avera
vs. Garcia,37 Aldaba vs. Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et
al.,41and Nayve vs. Mojal, et al.42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the
execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases
of In the Matter of the Estate of Saguinsin,43 In re Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of
Neumark, 46and Sano vs. Quintana.47

Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly conflicting decisions in
the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses
signed the will and each and every page thereof on the left margin in the presence of the testator. The will in
question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this
court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation
of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.
Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs.
Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last
two decisions cited by opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and
Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that the
witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve
vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,
wherein it was held that the attestation clause must estate the fact that the testator and the witnesses reciprocally
saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated
therein. It was also held that the fact that the testator and the witnesses signed each and every page of the will can
be proved also by the mere examination of the signatures appearing on the document itself, and the omission to
state such evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet
here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the
Mojal, decision was concurred in by only four members of the court, less than a majority, with two strong dissenting
opinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal
dissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision
was promulgated in December, 1925; the Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61
of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It
is in part provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further provided in
the same section that "The attestation shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of each other." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not executed and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce
legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically
and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to
revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs.
Morata,49Rodriguez vs. Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of Toray52 went the way of the ruling
as restated in Gumban. But De Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De Gorostiza,55Sebastian
vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De
Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict interpretation rule and
established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a
liberal construction, recommended the codification of the substantial compliance rule, as it believed this rule to be
in accord with the modern tendency to give a liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in accordance with the formalities
prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure, as amended regarding the contents of the attestation clause
were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in disposing of his property.

However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation
of the formalities in the execution of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June
21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of
Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this
attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of
the manner of executing wills, article 829 of the Project is recommended, which reads:

"Art. 829. 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 829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the
dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its
confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This
clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions 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.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED
and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No.
3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with
the settlement of the estate of the said decedent.

SO ORDERED.
Garcia vs. Lacuesta

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this attestation clause and that of the left margin of the three pages
thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken
and understood by the testator, and it bears the corresponding number in letter which compose of three pages and
all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator
and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three,
(1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

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

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of
Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of
Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his
name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that
the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of
De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of
the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the
cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as
to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the
testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.
Taboada vs. Rosal

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased;
Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion
for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and
testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first
page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the
attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting
witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court
commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted
his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the
will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to
submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified
and could intervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex
partepraying for a thirty-day period within which to deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day period required by the court to submit the names of
intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion
together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C.
Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending
resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion
filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise
denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the
intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one
another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the lacier witnesses and signed the will and the pages
thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the witnesses, it shall
be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is
not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the
same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a
will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the
page, where the end of the will is found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent
or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses
should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the space or particular location where the
signatures are to be found as long as this space or particular location wherein the signatures are found is consistent
with good faith and the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator
himself or by the testator's name written by another person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are, done which the statute requires
for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is
the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will
which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation
clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law
on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving
the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This
objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the
Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of
signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so
when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible
from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions
is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the
purpose of the requirement that the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that
the attestation clause shall state the number of pages or sheets upon which the win is written, which requirement
has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some
of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of
Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last
part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a
broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses
did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before
whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she
had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate
of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special
administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.

SO ORDERED.
Calde vs. CA

This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of appeals 1 in CA-G.R.
CV No. 19071, disallowing probate of the Last Will and Codicil executed by Calibia Lingdan Bulanglang, who died on
March 20, 1976.

The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property. She also left a Last
Will and Testament, dated October 30, 1972, and a Codicil thereto, dated July 24, 1973. Both documents contained
the thumbmarks of decedent. They were also signed by three (3) attesting witnesses each, and acknowledged before
Tomas A. Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province.

Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of Bontoc, Mt.
Province, Br. 36. 2 He died during the pendency of the proceedings, and was duly substituted by petitioner. Private
respondents, relatives of decedent, opposed the Petitioner filed by Calde, on the following grounds: that the will and
codicil were written in Ilocano, a dialect that decedent did not know; that decedent was mentally incapacitated to
execute the two documents because of her advanced age, illness and deafness; that decedents thumbmarks were
procured through fraud and undue influence; and that the codicil was not executed in accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedents will and its
codicil. The decision was appealed to and reversed by the respondent Court of Appeals. It held:

. . . (T)he will and codicil could pass the safeguards under Article 805 of the New Civil Code but for one crucial factor
of discrepancy in the color of ink when the instrumental witnesses affixed their respective signatures. When
subjected to cross-examination, Codcodio Nacnas as witness testified as follows:

Q And all of you signed on the same table?

A Yes, sir.

Q And when you were all signing this Exhibit "B" and "B-1", Exhibit "B" and "B-1" which is the testament was passed
around all of you so that each of you will sign consecutively?

A Yes, sir.

Q Who was the first to sign?

A Calibia Lingdan Bulanglang.

Q After Calibia Lingdan Bulanglang was made to sign I withdraw the question. How did Calibia Lingdan Bulanglang
sign the last will and testament?

A She asked Judge Tolete the place where she will affix her thumbmark so Judge Tolete directed her hand or her
thumb to her name.

Q After she signed, who was the second to sign allegedly all of you there present?

A Jose Becyagen.

Q With what did Jose Becyagen sign the testament, Exhibit "B" and "B-1"?

A Ballpen.

Q And after Jose Becyagen signed his name with the ballpen, who was the next to sign?

A Me, sir.

Q And Jose Becyagen passed you the paper and the ballpen, Exhibit "B" and "B-1" plus the ballpen which used to sign
so that you could sign your name, is that correct?

A Yes, sir.

Q And then after you signed, who was the next to sign the document, Exhibit "B" and "B-1"?
A Hilario Coto-ong.

Q So you passed also to Hilario Coto-ong the same Exhibit "B" and "B-1" and the ballpen so that he could sign his
name as witness to the document, is it not?

A Yes, sir.

Q And that is the truth and you swear that to be the truth before the Honorable Court?

ATTY. DALOG:

He already testified under oath, Your Honor.

COURT:

Witness may answer

A Yes, sir.

For his part, Obanan Ticangan likewise admitted during cross-examination in regard to the codicil that:

Q When you signed Exhibit "D" and "D-1", did you all sign with the same ballpen?

A One.

Such admissions from instrumental witnesses are indeed significant since they point to no other conclusion than that
the documents were not signed by them in their presence but on different occasions since the same ballpen used by
them supposedly in succession could not have produced a different color from blue to black and from black to blue.
In fact, the attestation clause followed the same pattern. The absurd sequence was repeated when they signed the
codicil, for which reason, We have no other alternative but to disallow the Last Will and Codicil. Verily, if the
witnesses and testatrix used the same ballpen, then their signatures would have been in only one color, not in
various ones as shown in the documents. Moreover, the signatures, in different colors as they are, appear to be of
different broadness, some being finer than the others, indicating that, contrary to what the testamentary witnesses
declared on the witness stand, not only one ballpen was used, and, therefore, showing that the documents were not
signed by the testatrix and instrumental witnesses in the presence of one another. . . " (Rollo, pp. 44-46. Citations
omitted.)

Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was denied by the
respondent court in its Order, dated May 24, 1990.

Thus, this appeal by petitioner who now puts in issue the correctness of the respondent courts conclusion that both
decedents will and codicil were not subscribed by the witnesses in the presence of the testator and of one another,
contrary to the requirements of Article 805 of the Civil Code. He contends that:

1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH
LAW OR WITH THE APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING BASED ON PURE SPECULATION
OR SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF
SUBSTANCE THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG WERE SIGNED BY HER
AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;

2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH
LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING THE PROBATIVE VALUE OF
THE ATTESTATION CLAUSES OF THE LAST WILL AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG.

The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the evidence submitted, respondent
appellate court erred in concluding that both decedents Last Will and Testament, and its Codicil were subscribed by
the instrumental witnesses on separate occasions. As a general rule, factual findings of the Court of Appeals are
considered final and conclusive, and cannot be reviewed on appeal to this court. In the present instance, however,
there is reason to make an exception to that rule, since the finding of the respondent court is contrary to that of the
trial court, viz.:

. . . (Private respondents) pointed out however, that the assertions of petitioners witnesses are rife with
contradictions, particularly the fact that the latters signatures on the documents in issue appear to have been
written in ballpens of different colors contrary to the statements of said witnesses that all of them signed with only
one ballpen. The implication is that the subscribing witnesses to the Will and Codicil, and the testatrix did not
simultaneously sign each of the documents in one sitting but did it piecemeal a violation of Art. 805 of the Code.
This conclusion of the (private respondents) is purely circumstantial. From this particular set of facts, numerous
inferences without limits can be drawn depending on which side of the fence one is on. For instance, considering the
time interval that elapsed between the making of the Will and Codicil, and up to the filing of the petition for probate,
the possibility is not remote that one or two of the attesting witnesses may have forgotten certain details that
transpired when they attested the documents in question . . . (Rollo, pp. 36-37.)

A review of the facts and circumstances upon which respondent Court of Appeals based its impugned finding,
however, fails to convince us that the testamentary documents in question were subscribed and attested by the
instrumental witnesses during a single occasion.

As sharply noted by respondent appellate court, the signatures of some attesting witnesses in decedents will and its
codicil were written in blue ink, while the others were in black. This discrepancy was not explained by petitioner.
Nobody of his six (6) witnesses testified that two pens were used by the signatories on the two documents. In fact,
two (2) of petitioners witnesses even testified that only one (1) ballpen was used in signing the two testamentary
documents.

It is accepted that there are three sources from which a tribunal may properly acquire knowledge for making its
decisions, namely: circumstantial evidence, testimonial evidence, and real evidence or autoptic proference.
Wigmore explains these sources as follows:

If, for example, it is desired to ascertain whether the accused has lost his right hand and wears an iron hook in place
of it, one source of belief on the subject would be the testimony of a witness who had seen the arm; in believing this
testimonial evidence, there is an inference from the human assertion to the fact asserted. A second source of belief
would be the mark left on some substance grasped or carried by the accused; in believing this circumstantial
evidence, there is an inference from the circumstance to the thing producing it. A third source of belief remains,
namely, the inspection by the tribunal of the accuseds arm. This source differs from the other two in omitting any
step of conscious inference or reasoning, and in proceeding by direct self-perception, or autopsy.

It is unnecessary, for present purposes, to ask whether this is not, after all, a third source of inference, i.e., an
inference from the impressions or perceptions of the tribunal to the objective existence of the thing perceived. The
law does not need and does not attempt to consider theories of psychology as to the subjectivity of knowledge or
the mediateness of perception. It assumes the objectivity of external nature; and, for the purposes of judicial
investigation, a thing perceived by the tribunal as existing does exist.

There are indeed genuine cases of inference by the tribunal from things perceived to other things unperceived as,
for example, from a persons size, complexion, and features, to his age; these cases of a real use of inference can be
later more fully distinguished . . . But we are here concerned with nothing more than matters directly perceived
for example, that a person is of small height or is of dark complexion; as to such matters, the perception by the
tribunal that the person is small or large, or that he has a dark or light complexion, is a mode of acquiring belief
which is independent of inference from either testimonial or circumstantial evidence. It is the tribunals self-
perception, or autopsy, of the thing itself.

From the point of view of the litigant party furnishing this source of belief, it may be termed Autoptic
Proference. 3 (Citations omitted.)

In the case at bench, the autoptic proference contradicts the testimonial evidence produced by petitioner. The will
and its codicil, upon inspection by the respondent court, show in black and white or more accurately, in black and
blue that more than one pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for
respondent court to disbelieve petitioners claim that both testamentary documents in question were subscribed to
in accordance with the provisions of Art. 805 of the Civil Code.

Neither did respondent court err when it did not accord great weight to the testimony of Judge Tomas A. Tolete. It is
true that his testimony contains a narration of how the two testamentary documents were subscribed and attested
to, starting from decedents thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in
consecutive order. Nonetheless, nowhere in Judge Toletes testimony is there any kind of explanation for the
different-colored signatures on the testaments.

IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent Court of Appeals, dated
March 27, 1988, in CA-G.R. CV No. 19071 disallowing the Last Will and Testament, and the Codicil thereto, of the
decedent Calibia Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED.
Lopez vs. Liboro

In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be
the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March
3, 1947, almost six months after the document in question was executed. In the court below, the present appellant
specified five grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his
signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was wanting in
testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not
executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as
such; and it was procured by duress, influence of fear and threats and undue and improper pressure and influence
on the part of the beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein
proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in
holding that the document Exhibit "A" was executed in all particulars as required by law." To this objection is added
the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a
language known to the decedent after petitioner rested his case and over the vigorous objection of the oppositor.

The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is
not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect.

The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing
the substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case,
the omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification
more trustworthy than the conventional numerical words or characters. The unnumbered page is clearly identified
as the first page by the internal sense of its contents considered in relation to the contents of the second page. By
their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last
sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a
recital that the testator was in full use of his testamentary faculty, all of which, in the logical order of sequence,
precede the direction for the disposition of the marker's property. Again, as page two contains only the two lines
above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other
sheet can not by any possibility be taken for other than page one. Abangan vs. Abangan, supra, and Fernandez vs.
Vergel de Dios, 46 Phil., 922 are decisive of this issue.

Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the
witnesses is assailed under this heading. On the merits we do not believe that the appellant's contention deserves
serious consideration. Such contradictions in the testimony of the instrumental witnesses as are set out in the
appellant's brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to
recall in the same order in which they occurred.

Everyday life and the result of investigations made in the field of experimental psychology show that the
contradictions of witnesses generally occur in the details of a certain incident, after a long series of questioning, and
far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who
witness an incident are impressed in like manner, it is but natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their testimony. (People vs. Limbo, 49 Phil., 99.)

The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the
testator was suffering from "partial paralysis." While another in testator's place might have directed someone else to
sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the fact that the
testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both
ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark.
(De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

With reference to the second assignment of error, we do not share the opinion that the trial court communicated an
abuse of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the
language in which the will is drawn, after the petitioner had rested his case and after the opponent had moved for
dismissal of the petition on the ground of insufficiency of evidence. It is within the discretion of the court whether or
not to admit further evidence after the party offering the evidence has rested, and this discretion will not be
reviewed except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court
whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or
request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court has announced
its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after
the motion has been granted, if the order has not been written, or entered upon the minutes or signed. (64 C. J.,
164.)

In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they
are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of
justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the
appellate court where no abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36
Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted
through inadvertence or mistake, or where the purpose of the evidence is to the evidence is to correct evidence
previously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to
present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a misapprehension
or oversight.

Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's
understanding of the language used in the testament. There is no statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not
say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the
fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria
Tapia knew the Tagalog dialect.

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with
costs.