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IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO

TABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of the Court of First Instance of Southern Leyte, (Branch
III, Maasin), respondent.
[G.R. No. L-36033. November 5, 1982.]

Doctrine: (1) 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; (2) The law is to be liberally
construed, "the underlying and fundamental objective permeating the provision 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; (3) The failure of the will's attestation clause to state the number of pages used in writing the will
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.

GUTIERREZ, JR., J p:

Facts:
Petitioner filed a petition for probate of the will of the late Dorotea Perez and presented as evidence the alleged will and the
testimony of one of the subscribing witnesses thereto. The will consists of two pages which was written in Cebuano-Visayan dialect.
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. Petitioner presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness
and due execution.

Trial court (thru then Presiding Judge Ramon C. Pamatian): issued an order denying the probate of the will of Dorotea Perez
for want of a formality in its execution and required the petitioner 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.

Petitioner filed: (1) manifestation and/or motion ex parte praying for a thirty-day period within which to deliberate on any step to
be taken as a result of the disallowance of the will and asked that the ten-day period required by the court to submit the names of
intestate heirs with their addresses be held in abeyance; (2) motion for reconsideration of the order denying the probate of the will;
(3) motion for the appointment of special administrator.

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.

ALL MOTIONS: Denied by the new judge

Judge’s Interpretation: for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but all 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.

Petitioner’s Contention: 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 will that the signatures of the subscribing witnesses should be specifically located at the
end of the will after the signature of the testatrix.

Issue:
W/N 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 For the validity of a formal notarial will?

Ruling:
No. 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. 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. 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". 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 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.

Article 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 with 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
them.

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.
Subscription - 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.
EUTIQUIA AVERA, petitioner-appellee, vs . MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar
Garcia and Jose Garcia, objectors-appellants.

[G.R. No. 15566. September 14, 1921.]

Doctrine: (1) When the petition for probate of a will is contested the proponent should introduce all three of the attesting witnesses,
if alive and within reach of the process of the court; and the execution of the will cannot be considered sufficiently proved by the
testimony of only one, without satisfactory explanation of the failure to produce the other two. Nevertheless, in a case where the
attorney for the contestants raised no question upon this point in the court below, either at the hearing upon the petition or in the
motion to rehear, it is held that an objection to the probate of the will on the ground that only one attesting Witness was examined
by the proponent of the will without accounting for the absence of the others, cannot be made for the first time in this court; (2) A
will otherwise properly executed in accordance with the requirements of existing law is not rendered invalid by the fact that the
paginal signatures of the testator and attesting witnesses appear in the right margin instead of the left.

STREET, J p:

Facts:
Eutiquia Avera instituted probate proceedings for probate of the will of one Esteban Garcia wherein contest was made by Marino
Garcia and Juan Rodriguez (guardian for the minors Jose Garcia and Cesar Garcia). Upon the date appointed for the hearing, the
proponent of the will introduced one of the three attesting witnesses who testified that the will was executed with all necessary
external formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point, the witness
was corroborated by the person who wrote the will at the request of the testator. Two of the attesting witnesses were not introduced,
nor was their absence accounted for by the proponent of the will. When the proponent rested, the attorney for the opposition
introduced a single witness whose testimony tended to show in a vague and indecisive manner that at the time the will was made
the testator was so debilitated as to be unable to comprehend what he was about.

Trial Judge: admitted the will to probate - found that the testator at the time of the making of the will was of sound mind and
disposing memory and that the will had been properly executed.

Issue:
W/N a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without producing
or accounting for the absence of the other two?
W/N the will in question is rendered invalid by reason of the fact that the signature of the testator and of the three attesting witnesses
are written on the right margin of each page of the will instead of the left margin?

Ruling:
No. An uncontested will may be proved by the testimony of only one of the three attesting witnesses. When a contest is instituted,
all of the attesting witnesses must be examined, if alive and within reach of the process of the court. In the present case no
explanation was made at the trial as to why all three of the attesting witnesses were not produced. the probable reason is found in
the fact that, although the petition for the probate of this will had been pending from December 21, 1917, until the date set for the
hearing, which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the
attorney for the proponent, believing in good faith that probate would not be contested, repaired to the court with only one of the
three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof
without asking for a postponement of the trial in order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis for
changing the rule expounded in the case above referred to; and were it not for a fact that this point was not raised by the appellant
in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the
motion for a new trial, this court would probably be compelled to reverse this case on the ground that the execution of the will had
not been proved by a sufficient number of attesting witnesses.

No. It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left margin of each
and every page; and it is undeniable that the general doctrine is to the effect that all statutory requirements as to the execution of
wills must be fully complied with. The instrument now before us contains the necessary signatures on every page, and the only
point of deviation from the requirement of the statute is that these signatures appear in the right margin instead of the left. By the
mode of signing here adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly
the same degree that it would have been protected by being signed in the left margin; and the resources of casuistry could be
exhausted without discovering the slightest difference between the consequences of affixing the signatures in one margin or the
other. In the case before us, where ingenuity could not suggest any possible prejudice to any person, as attendant upon the actual
deviation from the letter of the law, such deviation must be considered too trivial to invalidate the instrument.
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA PATIGAS, respondents.

[G.R. No. 123486. August 12, 1999.]

Doctrine: Based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" in a statute
commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is
that the word "shall," when used in a statute is mandatory.

PARDO, J p:

Facts:
April 6, 1990 – (Respondents) Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seño Vda. De Ramonal, filed with the RTC, a petition for probate of the holographic will
of the deceased, who died on January 16, 1990. In the petition, respondents claimed that the deceased Matilde Seño Vda. De
Ramonal, was of sound and disposing mind when she executed the will on August 30,1978, that there was no fraud, undue
influence, and duress employed in the person of the testator, and the will was written voluntarily. The assessed value of the
decedent's property, including all real and personal property was about P400,000.00, at the time of her death.

June 28, 1990 – Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will. Petitioners argued that the repeated
dates incorporated or appearing on the will after every disposition is out of the ordinary. If the deceased was the one who executed
the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and
not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue
and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence,
filed a demurrer to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seño Vda. de Ramonal.

RTC (November 26, 1990): granted the Demurrer to Evidence and denied the probate of holographic will.

Respondents filed a notice of appeal again reiterated the testimony of the witnesses [1]

CA: sustained the authenticity of the holographic will, ruling that Where the will is holographic, no witness need be present and the
rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided[2]

Issue:
W/N the provisions of Article 811 of the Civil Code are permissive?

Ruling:
No. We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a
mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the
idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory." Laws are enacted to
achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to
give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their
benefit will employ means to defeat the wishes of the testator. In the case of Ajero vs. Court of Appeals, we said 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 guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as
to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will." However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare
that the will was in the handwriting of the deceased. The will was found not in the personal belongings of the deceased but with
one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the
will was in her possession as early as 1985, or five years before the death of the deceased. There was no opportunity for an expert
to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime.
The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay
to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a
handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the
holographic will. A visual examination of the holographic will convince us that the strokes are different when compared with other
documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven
strokes, retracing and erasures on the will. Comparing the signature in the holographic will dated August 30, 1978, and the
signatures in several documents such as the application letter for pasture permit dated December 30, 1980, and a letter dated
June 16, 1978, the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that the holographic will was in the
handwriting by the deceased.

[1] Augusto Neri – Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased
was filed. He produced and identi􀀸ed the records of the case. The documents presented bear the signature of the deceased, Matilde Seño Vda. de Ramonal, for
the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the
evidence is offered.
Generosa Senon – election registrar of Cagayan de Oro, was presented to produce and identify the voter's afidavit of the decedent. The voters' affidavit was not
produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay – the deceased Matilde Seño Vda. de Ramonal was her aunt, and that after the death of Matilde's husband, the latter lived with her in
her parent's house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close association with the deceased, she acquired familiarity with
her signature and handwriting as she used to accompany her in collecting rentals from her various tenants of commercial buildings, and the deceased always
issued receipts. She assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors. She testified that
the deceased left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions
therein, the dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga – testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and
documents signed by the deceased in connection with the intestate proceedings of her late husband, as a result of which he is familiar with the handwriting of the
latter and that the signature appearing in the holographic will was similar to that of the deceased, Matilde Seño Vda. De Ramonal, but he can not be sure.
Mrs. Teresita Vedad – an employee of the DENR. She testified that she processed the application of the deceased for pasture permit and was familiar with the
signature of the deceased, since the deceased signed documents in her presence, when the latter was applying for pasture permit.
Evangeline Calugay – testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became
familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seño Vda.
de Ramonal.
[2] CA’s ruling was based on the case Azaola vs. Singson: even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the having the probate denied.
No witness need be present in the execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive.