G.R. No.

132681 December 3, 2001

RICKY Q. QUILALA, petitioner,

vs.
GLICERIA ALCANTARA, LEONORA ALCANTARA, INES REYES and JOSE REYES, respondent.

YNARES-SANTIAGO, J.:

On February 20, 1981, Catalina Quilala executed a "Donation of Real Property Inter Vivos" in favor of Violeta Quilala over a parcel of
land located in Sta. Cruz, Manila, containing an area of 94 square meters, and registered in her name under Transfer Certificate of Title
No. 17214 of the Register of Deeds for Manila.

The "Donation of Real Property Inter Vivos" consists of two pages. The first page contains the deed of donation itself, and is signed on
the bottom portion by Catalina Quilala as donor, Violeta Quilala as donee, and two instrumental witnesses.1 The second page contains
the Acknowledgment, which states merely that Catalina Quilala personally appeared before the notary public and acknowledged that
the donation was her free and voluntary act and deed. There appear on the left-hand margin of the second page the signatures of
Catalina Quilala and one of the witnesses, and on the right-hand margin the signatures of Violeta Quilala and the other witness. 2 The
Acknowledgment reads:

REPUBLIC OF THE PHILIPPINES )

QUEZON CITY ) S.S.

Before Me, a Notary Public, for and in the City of Quezon, Philippines, this 20th day of Feb. 1981, personally appeared
CATALINA QUILALA, with Residence Certificate No. 19055265 issued at Quezon City on February 4, 1981, known to me and
to me known to be the same person who executed the foregoing instruments and acknowledged to me that the same is her
own free and voluntary act and deed.

I hereby certify that this instrument consisting of two (2) pages, including the page on which this acknowledgment is written,
has been signed by CATALINA QUILALA and her instrumental witnesses at the end thereof and on the left-hand margin of
page 2 and both pages have been sealed with my notarial seal.

In witness whereof, I have hereunto set my hand, in the City of Quezon, Philippines, this 20th day of Feb., 1981.

(SGD.) NOTARY PUBLIC

Until December 31, 1981
(illegible)
DOC NO. 22;
PAGE NO. 6;
BOOK NO. XV;
SERIES OF 1981.

The deed of donation was registered with the Register of Deeds and, in due course, TCT No. 17214 was cancelled and TCT No.
143015 was issued in the name of Violeta Quilala.

On November 7, 1983, Catalina Quilala died. Violeta Quilala likewise died on May 22, 1984. Petitioner Ricky Quilala alleges that he is
the surviving son of Violeta Quilala.

Meanwhile, respondents Gliceria Alcantara, Leonora Alcantara, Ines Reyes and Juan Reyes, claiming to be Catalina's only surviving
relatives within the fourth civil degree of consanguinity, executed a deed of extrajudicial settlement of estate, dividing and adjudicating
unto themselves the above-described property.

On September 13, 1984, respondents instituted against petitioner and Guillermo T. San Pedro, the Registrar of Deeds of Manila, an
action for the declaration of nullity of the donation inter vivos, and for the cancellation of TCT No. 143015 in the name of Violeta Quilala.
The case was docketed as Civil Case No. 84-26603 of the Regional Trial Court of Manila, Branch 17. Subsequently, respondents
withdrew their complaint as against Guillermo T. San Pedro and he was dropped as a party-defendant.

The trial court found that the deed of donation, although signed by both Catalina and Violeta, was acknowledged before a notary public
only by the donor, Catalina. Consequently, there was no acceptance by Violeta of the donation in a public instrument, thus rendering
the donation null and void. Furthermore, the trial court held that nowhere in Catalina's SSS records does it appear that Violeta was
Catalina's daughter. Rather, Violeta was referred to therein as an adopted child, but there was no positive evidence that the adoption
was legal. On the other hand, the trial court found that respondents were first cousins of Catalina Quilala. However, since it appeared
that Catalina died leaving a will, the trial court ruled that respondents' deed of extrajudicial settlement can not be registered. The trial
court rendered judgment as follows:
 WHEREFORE, judgment is hereby rendered in favor of plaintiffs Gliceria Alcantara, Leonarda Alcantara, Ines Reyes and Juan
Reyes and against defendant Ricky A. Quilala, as follows:

1. Declaring null and void the deed of donation of real property inter vivos executed on February 20, 1981 by Catalina Quilala
in favor of Violeta Quilala (Exhs. A as well as 11 and 11-A.);
2. Ordering the Register of Deeds of Manila to cancel Transfer Certificate of Title No. 143015 in the name of Violeta Quilala
and to issue a transfer certificate of title in the name of the Estate of Catalina Quilala;.
3. Dismissing the complaint insofar as it seeks the registration of the deed of extrajudicial settlement (Exhs. B and B-1,) and
the issuance by the Register of Deeds of Manila of a transfer certificate of title in the names of the plaintiffs; and
4. Dismissing the counterclaim of defendant Ricky A. Quilala.
No costs.

SO ORDERED.3

Petitioner appealed the aforesaid decision. On July 30, 1997, the Court of Appeals rendered a decision affirming with modification the
decision of the trial court by dismissing the complaint for lack of cause of action without prejudice to the filing of probate proceedings of
Catalina's alleged last will and testament.4

WHEREFORE, the appealed decision is hereby AFFIRMED with the following MODIFICATION:

(3) DISMISSING the complaint for lack of cause of action without prejudice to the filing of the necessary probate proceedings
by the interested parties so as not to render nugatory the right of the lawful heirs.

Petitioner filed a motion for reconsideration, which the Court of Appeals denied on February 11, 1998. 5 Hence, this petition for review,
raising the following assignment of errors:

A. THE COURT OF APPEALS ERRED IN RULING THAT THE DEED OF DONATION OF REAL PROPERTY INTER-VIVOS
IS NOT REGISTRABLE.

B. THE COURT OF APPEALS ERRED ON UPHOLDING THE LOWER COURT'S RULING THAT VIOLETA QUILALA IS NOT
THE DAUGHTER OF CATALINA QUILALA.6

The principal issue raised is the validity of the donation executed by Catalina in favor of Violeta. Under Article 749 of the Civil Code, the
donation of an immovable must be made in a public instrument in order to be valid, 7 specifying therein the property donated and the
value of the charges which the donee must satisfy. As a mode of acquiring ownership, donation results in an effective transfer of title
over the property from the donor to the donee,8 and is perfected from the moment the donor knows of the acceptance by the
donee,9 provided the donee is not disqualified or prohibited by law from accepting the donation. Once the donation is accepted, it is
generally considered irrevocable,10 and the donee becomes the absolute owner of the property. 11 The acceptance, to be valid, must be
made during the lifetime of both the donor and the donee. 12 It may be made in the same deed or in a separate public document,13 and
the donor must know the acceptance by the donee.14

In the case at bar, the deed of donation contained the number of the certificate of title as well as the technical description of the real
property donated. It stipulated that the donation was made for and in consideration of the "love and affection which the DONEE inspires
in the DONOR, and as an act of liberality and generosity." 15 This was sufficient cause for a donation. Indeed, donation is legally defined
as "an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it." 16

The donee's acceptance of the donation was explicitly manifested in the penultimate paragraph of the deed, which reads:

That the DONEE hereby receives and accepts the gift and donation made in her favor by the DONOR and she hereby
expresses her appreciation and gratefulness for the kindness and generosity of the DONOR. 17

Below the terms and stipulations of the donation, the donor, donee and their witnesses affixed their signature. However, the
Acknowledgment appearing on the second page mentioned only the donor, Catalina Quilala. Thus, the trial court ruled that for Violeta's
failure to acknowledge her acceptance before the notary public, the same was set forth merely on a private instrument, i.e., the first
page of the instrument. We disagree.

The pertinent provision is Section 112, paragraph 2 of Presidential Decree No. 1529, which states:

Deeds, conveyances, encumbrances, discharges, powers of attorney and other voluntary instruments, whether affecting
registered or unregistered land, executed in accordance with law in the form of public instruments shall be registrable:
Provided, that, every such instrument shall be signed by person or persons executing the same in the presence of at least two
witnesses who shall likewise sign thereon, and shall be acknowledged to be the free act and deed of the person or persons
executing the same before a notary public or other public officer authorized by law to take acknowledgment. Where the
instrument so acknowledged consists of two or more pages including the page whereon acknowledgment is written, each page
 of the copy which is to be registered in the office of the Register of Deeds, or if registration is not contemplated, each page of
the copy to be kept by the notary public, except the page where the signatures already appear at the foot of the instrument
shall be signed on the left margin thereof by the person or persons executing the instrument and their witnesses, and all the
pages sealed with the notarial seal, and this fact as well as the number of pages shall be stated in the acknowledgment.
Where the instrument acknowledged relates to a sale, transfer, mortgage or encumbrance of two or more parcels of land, the
number thereof shall likewise be set forth in said acknowledgment." (italics supplied).

As stated above, the second page of the deed of donation, on which the Acknowledgment appears, was signed by the donor and one
witness on the left-hand margin, and by the donee and the other witness on the right hand margin. Surely, the requirement that the
contracting parties and their witnesses should sign on the left-hand margin of the instrument is not absolute. The intendment of the law
merely is to ensure that each and every page of the instrument is authenticated by the parties. The requirement is designed to avoid the
falsification of the contract after the same has already been duly executed by the parties. Hence, a contracting party affixes his
signature on each page of the instrument to certify that he is agreeing to everything that is written thereon at the time of signing.

Simply put, the specification of the location of the signature is merely directory. The fact that one of the parties signs on the wrong side
of the page does not invalidate the document. The purpose of authenticating the page is served, and the requirement in the above-
quoted provision is deemed substantially complied with.

In the same vein, the lack of an acknowledgment by the donee before the notary public does not also render the donation null and void.
The instrument should be treated in its entirety. It cannot be considered a private document in part and a public document in another
part. The fact that it was acknowledged before a notary public converts the deed of donation in its entirety a public instrument. The fact
that the donee was not mentioned by the notary public in the acknowledgment is of no moment. To be sure, it is the conveyance that
should be acknowledged as a free and voluntary act. In any event, the donee signed on the second page, which contains the
Acknowledgment only. Her acceptance, which is explicitly set forth on the first page of the notarized deed of donation, was made in a
public instrument.

It should be stressed that this Court, not being a trier of facts, can not make a determination of whether Violeta was the daughter of
Catalina, or whether petitioner is the son of Violeta. These issues should be ventilated in the appropriate probate or settlement
proceedings affecting the respective estates of Catalina and Violeta. Suffice it to state that the donation, which we declare herein to be
valid, will still be subjected to a test on its inofficiousness under Article 771, 18 in relation to Articles 752, 911 and 912 of the Civil Code.
Moreover, property donated inter vivosis subject to collation after the donor's death,19 whether the donation was made to a compulsory
heir or a stranger,20 unless there is an express prohibition if that had been the donor's intention.21

WHEREFORE, in view of the foregoing, the petition is GRANTED. The appealed decision of the Court of Appeals , is REVERSED and
SET ASIDE, and a new judgment is rendered dismissing Civil Case No. 84-26603.

SO ORDERED.

G.R. No. 160488 September 3, 2004

FELOMINA1 ABELLANA, petitioner,

vs.
SPOUSES ROMEO PONCE and LUCILA PONCE and the REGISTER OF DEEDS of BUTUAN CITY, respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review on certiorari assailing the June 16, 2003 decision2 of the Court of Appeals in CA-G.R. CV No. 69213, which
reversed and set aside the August 28, 2000 decision3 of the Regional Trial Court of Butuan City, Branch 2, in Civil Case No. 4270.

The facts as testified to by petitioner Felomina Abellana are as follows:

On July 15, 1981, Felomina, a spinster, pharmacist and aunt of private respondent Lucila Ponce, purchased from the late Estela
Caldoza-Pacres a 44,2974 square meter agricultural lot5 with the intention of giving said lot to her niece, Lucila. Thus, in the deed of
sale,6 the latter was designated as the buyer of Lot 3, Pcs-10-000198, covered by Original Certificate of Title No. P-27, Homestead
Patent No. V-1551 and located at Los Angeles, Butuan City.7 The total consideration of the sale was P16,500.00, but only P4,500.00
was stated in the deed upon the request of the seller. 8

Subsequently, Felomina applied for the issuance of title in the name of her niece. On April 28, 1992, Transfer Certificate of Title (TCT)
No. 28749 over the subject lot was issued in the name of Lucila.10 Said title, however, remained in the possession of Felomina who
developed the lot through Juanario Torreon11 and paid real property taxes thereon.12
The relationship between Felomina and respondent spouses Romeo and Lucila Ponce, however, turned sour. The latter allegedly
became disrespectful and ungrateful to the point of hurling her insults and even attempting to hurt her physically. Hence, Felomina filed
the instant case for revocation of implied trust to recover legal title over the property.13

Private respondent spouses Lucila, also a pharmacist, and Romeo, a marine engineer, on the other hand, claimed that the purchase
price of the lot was only P4,500.00 and that it was them who paid the same. The payment and signing of the deed of sale allegedly took
place in the office of Atty. Teodoro Emboy in the presence of the seller and her siblings namely, Aquilino Caldoza and the late Lilia
Caldoza.14

A year later, Juanario approached Lucila and volunteered to till the lot, to which she agreed.15 In 1987, the spouses consented to
Felomina’s proposal to develop and lease the lot. They, however, shouldered the real property taxes on the lot, which was paid through
Felomina. In 1990, the spouses demanded rental from Felomina but she refused to pay because her agricultural endeavor was
allegedly not profitable.16

When Lucila learned that a certificate of title in her name had already been issued, she confronted Felomina who claimed that she
already gave her the title. Thinking that she might have misplaced the title, Lucila executed an affidavit of loss which led to the issuance
of another certificate of title in her name.17

On August 28, 2000, the trial court rendered a decision holding that an implied trust existed between Felomina and Lucila, such that the
latter is merely holding the lot for the benefit of the former. It thus ordered the conveyance of the subject lot in favor of Felomina. The
dispositive portion thereof, reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered declaring, directing and ordering that:

a) An implied trust was created with plaintiff as trustor and private defendant Lucila A. Ponce married to private
defendant Engr. Romeo D. Ponce as trustee pursuant to Article 1448 of the New Civil Code;
b) The implied trust, having been created without the consent of the trustee and without any condition, is revoked;
c) The private defendants, who are spouses, execute the necessary deed of conveyance in favor of the plaintiff of the
land, covered by and embraced in TCT NO. T-2874, in controversy and in the event private defendants refuse to
execute the deed of conveyance, the public defendant City Register of Deeds of Butuan to cancel TCT No. T-2874
and issue a new one in lieu thereof in the name of the plaintiff;
d) The private defendants spouses to pay jointly and severally plaintiff the sum of PhP25,000.00 as attorney’s fees
and PhP4,000.00 as expenses of litigation;
e) The dismissal of the counterclaim of private defendants spouses[;] and
f) The private defendants to pay the costs.

SO ORDERED.18

Private respondent spouses appealed to the Court of Appeals which set aside the decision of the trial court ruling that Felomina failed
to prove the existence of an implied trust and upheld respondent spouses’ ownership over the litigated lot. The appellate court further
held that even assuming that Felomina paid the purchase price of the lot, the situation falls within the exception stated in Article 1448 of
the Civil Code which raises a disputable presumption that the property was purchased by Felomina as a gift to Lucila whom she
considered as her own daughter. The decretal portion thereof, states –

WHEREFORE, premises considered, the appealed decision of the Regional Trial Court, Branch 2, Butuan City, in Civil Case
No. 4270, is hereby REVERSED AND SET ASIDE. A new one is heretofore rendered dismissing the complaint below of
plaintiff-appellee, F[e]lomina Abellana.

SO ORDERED.19

Felomina filed a motion for reconsideration but the same was denied. 20 Hence, the instant petition.

The issue before us is: Who, as between Felomina and respondent spouses, is the lawful owner of the controverted lot? To resolve this
issue, it is necessary to determine who paid the purchase price of the lot.

After a thorough examination of the records and transcript of stenographic notes, we find that it was Felomina and not Lucila who truly
purchased the questioned lot from Estela. The positive and consistent testimony of Felomina alone, that she was the real vendee of the
lot, is credible to debunk the contrary claim of respondent spouses. Indeed, the lone testimony of a witness, if credible, is sufficient as in
the present case.21 Moreover, Aquilino Caldoza, brother of the vendor and one of the witnesses 22 to the deed of sale, categorically
declared that Felomina was the buyer and the one who paid the purchase price to her sister, Estela. 23

Then too, Juanario, who was allegedly hired by Lucila to develop the lot, vehemently denied that he approached and convinced Lucila
to let him till the land. According to Juanario, he had never spoken to Lucila about the lot and it was Felomina who recruited him to be
the caretaker of the litigated property.24
The fact that it was Felomina who bought the lot was further bolstered by her possession of the following documents from the time of
their issuance up to the present, to wit: (1) the transfer certificate of title 25 and tax declaration in the name of Lucila;26 (2) the receipts of
real property taxes in the name of Felomina Abellana for the years 1982-1984, 1992-1994 and 1995;27 and (3) the survey plan of the
lot.28

Having determined that it was Felomina who paid the purchase price of the subject lot, the next question to resolve is the nature of the
transaction between her and Lucila.

It appears that Felomina, being of advanced age29 with no family of her own, used to purchase properties and afterwards give them to
her nieces. In fact, aside from the lot she bought for Lucila (marked as Exhibit "R-2"), she also purchased 2 lots, one from Aquilino
Caldoza (marked as Exhibit "R-1") and the other from Domiciano Caldoza (marked as Exhibit "R-3"), which she gave to Zaida
Bascones (sister of Lucila), thus:

Q I am showing to you again Exhibit R, according to you[,] you bought Exhibits R-1, R-2 and R-3, do you remember that?
A Yes sir.
xxx xxx xxx
Q Aquilin[o] Caldoza conveyed this land in Exhibit R-1 to you?
A Yes, sir.
Q Is this now titled in your name?
A No. I was planning to give this land to my nieces. One of which [was] already given to Mrs. [Lucila] Ponce.
Q I am talking only about this lot in Exhibit R-1[.]
A Not in my name.
Q In whose name was this lot in Exhibit R-1 now?
A In the name of Zaida Bascones.
Q Who prepared the deed of sale?
A At the start it was in the name of Rudy [Torreon].30 Because Rudy [Torreon] knew that there is some trouble already about
that lot he made a deed of sale to the name of Zaida Bascones, which I planned to give that land to her (sic).
Q As regards Exhibit R-1, you bought it actually?
A Yes, sir.
Q But the … original deed of sale was in the name of Rudolfo [Torreon]?
A Yes, sir.
Q And later on Rudolfo [Torreon] again transferred it to Zaida Bascones?
A Yes, sir.31
Likewise, in the case of Lucila, though it was Felomina who paid for the lot, she had Lucila designated in the deed as the vendee
thereof and had the title of the lot issued in Lucila’s name. It is clear therefore that Felomina donated the land to Lucila. This is evident
from her declarations, viz:
Witness
A In 1981 there was a riceland offered so I told her that I will buy that land and I will give to her later (sic), because since
1981 up to 1992 Mrs. Lucila Ponce has no job.
Q Where is the land located?
A In Los Angeles, Butuan City.
Q Who was the owner of this land?
A The owner of that land is Mrs. Estela Caldoza-Pacr[e]s.
The husband is Pacr[e]s.
xxx xxx xxx
Q What did you do with this land belonging to Mrs. Estela-Caldoza- Pacr[e]s?
A I paid the lot, then worked the lot, since at the start of my buying the lot until now (sic).
Q You said that you told Lucila Ponce that you would give the land to her later on, what did you do in connection with
this intention of yours to give the land to her?
A So I put the name of the title in her name in good faith (sic).
Q You mean to tell the court that when you purchased this land located at Los Angeles, Butuan City, the instrument of sale or
the deed of sale was in the name of Lucila Ponce?
A Yes, sir.32
xxx xxx xxx
Q Did you not ask your adviser Rudolfo [Torreon] whether it was wise for you to place the property in the name of Lucila
Ponce when you are the one who is the owner?
A Because we have really the intention to give it to her.33

Generally, contracts are obligatory in whatever form they may have been entered into, provided all the essential requisites for their
validity are present. When, however, the law requires that a contract be in some form in order that it may be valid, that requirement is
absolute and indispensable. Its non-observance renders the contract void and of no effect. 34 Thus, under Article 749 of the Civil Code –

Article 749. In order that the donation of an immovable property may be valid, it must be made in a public document,
specifying therein the property donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is
done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted
in both instruments.

In the instant case, what transpired between Felomina and Lucila was a donation of an immovable property which was not embodied in
a public instrument as required by the foregoing article. Being an oral donation, the transaction was void. 35 Moreover, even if Felomina
enjoyed the fruits of the land with the intention of giving effect to the donation after her demise, the conveyance is still a void
donation mortis causa, for non-compliance with the formalities of a will.36 No valid title passed regardless of the intention of Felomina to
donate the property to Lucila, because the naked intent to convey without the required solemnities does not suffice for gratuitous
alienations, even as between the parties inter se.37 At any rate, Felomina now seeks to recover title over the property because of the
alleged ingratitude of the respondent spouses.

Unlike ordinary contracts (which are perfected by the concurrence of the requisites of consent, object and cause pursuant to Article
131838 of the Civil Code), solemn contracts like donations are perfected only upon compliance with the legal formalities under Articles
74839 and 749.40 Otherwise stated, absent the solemnity requirements for validity, the mere intention of the parties does not give rise to
a contract. The oral donation in the case at bar is therefore legally inexistent and an action for the declaration of the inexistence of a
contract does not prescribe.41Hence, Felomina can still recover title from Lucila.

Article 144842 of the Civil Code on implied trust finds no application in the instant case. The concept of implied trusts is that from the
facts and circumstances of a given case, the existence of a trust relationship is inferred in order to effect the presumed intention of the
parties.43 Thus, one of the recognized exceptions to the establishment of an implied trust is where a contrary intention is proved, 44 as in
the present case. From the testimony of Felomina herself, she wanted to give the lot to Lucila as a gift. To her mind, the execution of a
deed with Lucila as the buyer and the subsequent issuance of title in the latter’s name were the acts that would effectuate her
generosity. In so carrying out what she conceived, Felomina evidently displayed her unequivocal intention to transfer ownership of the
lot to Lucila and not merely to constitute her as a trustee thereof. It was only when their relationship soured that she sought to revoke
the donation on the theory of implied trust, though as previously discussed, there is nothing to revoke because the donation was never
perfected.

In declaring Lucila as the owner of the disputed lot, the Court of Appeals applied, among others, the second sentence of Article 1448
which states –

"x x x However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of
the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child."

Said presumption also arises where the property is given to a person to whom the person paying the price stands in loco parentis or as
a substitute parent.45

The abovecited provision, however, is also not applicable here because, first, it was not established that Felomina stood as a substitute
parent of Lucila; and second, even assuming that she did, the donation is still void because the transfer and acceptance was not
embodied in a public instrument. We note that said provision merely raised a presumption that the conveyance was a gift but nothing
therein exempts the parties from complying with the formalities of a donation. Dispensation of such solemnities would give rise to
anomalous situations where the formalities of a donation and a will in donations inter vivos, and donations mortis causa, respectively,
would be done away with when the transfer of the property is made in favor of a child or one to whom the donor stands in loco parentis.
Such a scenario is clearly repugnant to the mandatory nature of the law on donation.

While Felomina sought to recover the litigated lot on the ground of implied trust and not on the invalidity of donation, the Court is
clothed with ample authority to address the latter issue in order to arrive at a just decision that completely disposes of the
controversy.46 Since rules of procedure are mere tools designed to facilitate the attainment of justice, they must be applied in a way that
equitably and completely resolve the rights and obligations of the parties.47

As to the trial court’s award of attorney’s fees and litigation expenses, the same should be deleted for lack of basis. Aside from the
allegations in the complaint, no evidence was presented in support of said claims. The trial court made these awards in the dispositive
portion of its decision without stating any justification therefor in the ratio decidendi. Their deletion is therefore proper.48

Finally, in deciding in favor of Felomina, the trial court ordered respondent spouses to execute a deed of sale over the subject lot in
favor of Felomina in order to effect the transfer of title to the latter. The proper remedy, however, is provided under Section 10 (a), Rule
39 of the Revised Rules of Civil Procedure which provides that "x x x [i]f real or personal property is situated within the Philippines, the
court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the
force and effect of a conveyance executed in due form of law."

WHEREFORE, in view of all the foregoing, the petition is GRANTED and the June 16, 2003 decision of the Court of Appeals in CA-
G.R. CV No. 69213 is REVERSED and SET ASIDE. The August 28, 2000 decision of the Regional Trial Court of Butuan City, Branch
2, in Civil Case No. 4270, is REINSTATED with the following MODIFICATIONS:
 (1) Declaring petitioner Felomina Abellana as the absolute owner of Lot 3, Pcs-10-000198;

(2) Ordering the Register of Deeds of Butuan City to cancel TCT No. T-2874 in the name of respondent Lucila Ponce and to
issue a new one in the name of petitioner Felomina Abellana; and

(3) Deleting the awards of attorney’s fees and litigation expenses for lack of basis.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-20357 November 25, 1967

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO GATCHALIAN, deceased. PEDRO
REYES GARCIA, petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY and
ANGELES G. TALANAY, oppositors-appellees.

E. Debuque for petitioner-appellant.

E. L. Segovia for oppositors-appellees.

DIZON, J.:

This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of Rizal in Special Proceedings No.
2623 denying the allowance of the will of the late Gregorio Gatchalian, on the ground that the attesting witnesses did not acknowledge it
before a notary public, as required by law.

On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of Pasig, Province of Rizal, leaving no
forced heirs. On April 2 of the same year, appellant filed a petition with the above named court for the probate of said alleged will
(Exhibit "C") wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog,
Virginia G. Talanay and Angeles G. Talanay, appellees herein, opposed the petition on the ground, among others, that the will was
procured by fraud; that the deceased did not intend the instrument signed by him to be as his will; and that the deceased was physically
and mentally incapable of making a will at the time of the alleged execution of said will.

After due trial, the court rendered the appealed decision finding the document Exhibit "C" to be the authentic last will of the deceased
but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil Code — that the will must be
acknowledged before a notary public by the testator and the witnesses.

An examination of the document (Exhibit "C") shows that the same was acknowledged before a notary public by the testator but not by
the instrumental witnesses.

Article 806 of the New Civil Code reads as follows:

Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office of the Clerk of Court.

We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will must be
acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity (In re: Testate Estate of
Alberto, G. R. No. L-11948, April 29, 1959). As the document under consideration does not comply with this requirement, it is obvious
that the same may not be probated.

WHEREFORE, the decision appealed from is affirmed, with costs.

G.R. No. 122880 April 12, 2006

FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.

DECISION

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16
December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the
opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of
the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will
whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will
which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to
deny probate. A notarial will with all three defects is just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of
a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to
the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills — that
they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two
codal provisions opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by
petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner
is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang,
nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at
binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng
simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala
sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na
siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo
ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix
Azuela at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko
rin na hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at
 bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

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

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO

Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of
the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene
Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued
to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12
legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so
it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation
of real property, all centering on petitioner’s right to occupy the properties of the decedent. 3 It also asserted that contrary to the
representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then
residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that
decedent’s signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments
are among the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the
testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the
modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in
expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments that the will was not properly executed and
attested to in accordance with law.

After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in
mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on
the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following
statement is made under the sub-title, "Patunay Ng Mga Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana
na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang
nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawa’t dahon ng kasulatan ito."

The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a
substantial compliance with the requirements of the law.

On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is
of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation
clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the
will.

With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on upper part of each page and
that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first
page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause
and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure
of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause
and acknowledgment is not a fatal defect.

As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing
witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the
will.8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda
Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for
probate.9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the
will void and undeserving of probate.10

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in
the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he termed as "the substantial
compliance rule."11

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.

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

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

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

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the
will. But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an incomplete
attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet
the blank was never filled in; hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re:
Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to
state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation
clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the
total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty." 16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used.
This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting
clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the
danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered
material."18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to
the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate
court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which
we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon
which the will is written. Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation
does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al.,
supra," although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in
the last part of the body of the Will:

"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation
clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405;
Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these
cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde,
but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the
number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the
realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by
purely technical considerations." (page 165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages
used in the:

"x x x

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the
will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and
actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which
contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of two pages including this page"
(pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even
contain any notarial acknowledgment wherein the number of pages of the will should be stated. 21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the attestation
state the number of pages of the will is extant from Section 618. 23 However, the enactment of the Civil Code in 1950 did put in force a
rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of
article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective
permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the
end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency]
in respect to the formalities in the execution of wills." 24 However, petitioner conveniently omits the qualification offered by the Code
Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator." 25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the
manner of interpretation of the legal formalities required in the execution of the attestation clause in wills. 27 Uy Coque and Andrada are cited therein,
along with several other cases, as examples of the application of the rule of strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice
J.B.L. Reyes as to how Article 809 should be applied:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are
three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in
the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the
probate proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the
number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the
Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective
signatures to the will in the presence of the testator and of each other, 30 the other omission cited by Justice J.B.L. Reyes which to his
estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of
the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance
to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in
the invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one another’s presence should be considered a fatal flaw since the attestation is
the only textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809.
The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. 33 The failure to state the
number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted
the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance
with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada.
However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article
805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to
prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these
remained effective safeguards against the forgery or intercalation of notarial wills. 34 Compliance with these requirements, however
picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent
admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more
critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses
appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their
averments before the notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom
of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3)
Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief
Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending
the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the
legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses
at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the instrumental witnesses]." The
respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an
unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause,
such signatures cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on the page were
directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand
margin of the page containing such clause. Without diminishing the value of the instrumental witnesses’ signatures on each and every
page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used
upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed
the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the
attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that
"every will must be acknowledged before a notary public by the testator and the witnesses" has also not been complied with. The
importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited
flaws in compliance with Article 805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his
act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document
has attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part
of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor. 42 Ordinarily,
the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the
notary public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized"
encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the
instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not an empty meaningless act. 43 The acknowledgment coerces the
testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their
own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons
who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further
degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had
designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn
to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at
length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on
the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page.
In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at
the so-called "logical end"44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but
instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be
construed as mandatory.45Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even
as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a
general lack of due regard for the requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner

G.R. No. 92989 July 8, 1991

PERFECTO DY, JR. petitioner,

vs.
COURT OF APPEALS, GELAC TRADING INC., and ANTONIO V. GONZALES, respondents.

Zosa & Quijano Law Offices for petitioner.

Expedito P. Bugarin for respondent GELAC Trading, Inc.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari seeking the reversal of the March 23, 1990 decision of the Court of Appeals which ruled that
the petitioner's purchase of a farm tractor was not validly consummated and ordered a complaint for its recovery dismissed.

The facts as established by the records are as follows:

The petitioner, Perfecto Dy and Wilfredo Dy are brothers. Sometime in 1979, Wilfredo Dy purchased a truck and a farm tractor through
financing extended by Libra Finance and Investment Corporation (Libra). Both truck and tractor were mortgaged to Libra as security for
the loan.

The petitioner wanted to buy the tractor from his brother so on August 20, 1979, he wrote a letter to Libra requesting that he be allowed
to purchase from Wilfredo Dy the said tractor and assume the mortgage debt of the latter.

In a letter dated August 27, 1979, Libra thru its manager, Cipriano Ares approved the petitioner's request.

Thus, on September 4, 1979, Wilfredo Dy executed a deed of absolute sale in favor of the petitioner over the tractor in question.

At this time, the subject tractor was in the possession of Libra Finance due to Wilfredo Dy's failure to pay the amortizations.

Despite the offer of full payment by the petitioner to Libra for the tractor, the immediate release could not be effected because Wilfredo
Dy had obtained financing not only for said tractor but also for a truck and Libra insisted on full payment for both.
The petitioner was able to convince his sister, Carol Dy-Seno, to purchase the truck so that full payment could be made for both. On
November 22, 1979, a PNB check was issued in the amount of P22,000.00 in favor of Libra, thus settling in full the indebtedness of
Wilfredo Dy with the financing firm. Payment having been effected through an out-of-town check, Libra insisted that it be cleared first
before Libra could release the chattels in question.

Meanwhile, Civil Case No. R-16646 entitled "Gelac Trading, Inc. v. Wilfredo Dy", a collection case to recover the sum of P12,269.80
was pending in another court in Cebu.

On the strength of an alias writ of execution issued on December 27, 1979, the provincial sheriff was able to seize and levy on the
tractor which was in the premises of Libra in Carmen, Cebu. The tractor was subsequently sold at public auction where Gelac Trading
was the lone bidder. Later, Gelac sold the tractor to one of its stockholders, Antonio Gonzales.

It was only when the check was cleared on January 17, 1980 that the petitioner learned about GELAC having already taken custody of
the subject tractor. Consequently, the petitioner filed an action to recover the subject tractor against GELAC Trading with the Regional
Trial Court of Cebu City.

On April 8, 1988, the RTC rendered judgment in favor of the petitioner. The dispositive portion of the decision reads as follows:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant, pronouncing that the plaintiff is
the owner of the tractor, subject matter of this case, and directing the defendants Gelac Trading Corporation and Antonio
Gonzales to return the same to the plaintiff herein; directing the defendants jointly and severally to pay to the plaintiff the
amount of P1,541.00 as expenses for hiring a tractor; P50,000 for moral damages; P50,000 for exemplary damages; and to
pay the cost. (Rollo, pp. 35-36)

On appeal, the Court of Appeals reversed the decision of the RTC and dismissed the complaint with costs against the petitioner. The
Court of Appeals held that the tractor in question still belonged to Wilfredo Dy when it was seized and levied by the sheriff by virtue of
the alias writ of execution issued in Civil Case No. R-16646.

The petitioner now comes to the Court raising the following questions:

A.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS MISAPPREHENDED THE FACTS AND ERRED IN NOT
AFFIRMING THE TRIAL COURT'S FINDING THAT OWNERSHIP OF THE FARM TRACTOR HAD ALREADY PASSED TO
HEREIN PETITIONER WHEN SAID TRACTOR WAS LEVIED ON BY THE SHERIFF PURSUANT TO AN ALIAS WRIT OF
EXECUTION ISSUED IN ANOTHER CASE IN FAVOR OF RESPONDENT GELAC TRADING INC.

B.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS EMBARKED ON MERE CONJECTURE AND SURMISE IN
HOLDING THAT THE SALE OF THE AFORESAID TRACTOR TO PETITIONER WAS DONE IN FRAUD OF WILFREDO
DY'S CREDITORS, THERE BEING NO EVIDENCE OF SUCH FRAUD AS FOUND BY THE TRIAL COURT.

C.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS MISAPPREHENDED THE FACTS AND ERRED IN NOT
SUSTAINING THE FINDING OF THE TRIAL COURT THAT THE SALE OF THE TRACTOR BY RESPONDENT GELAC
TRADING TO ITS CO-RESPONDENT ANTONIO V. GONZALES ON AUGUST 2, 1980 AT WHICH TIME BOTH
RESPONDENTS ALREADY KNEW OF THE FILING OF THE INSTANT CASE WAS VIOLATIVE OF THE HUMAN
RELATIONS PROVISIONS OF THE CIVIL CODE AND RENDERED THEM LIABLE FOR THE MORAL AND EXEMPLARY
DAMAGES SLAPPED AGAINST THEM BY THE TRIAL COURT. (Rollo, p. 13)

The respondents claim that at the time of the execution of the deed of sale, no constructive delivery was effected since the
consummation of the sale depended upon the clearance and encashment of the check which was issued in payment of the subject
tractor.

In the case of Servicewide Specialists Inc. v. Intermediate Appellate Court. (174 SCRA 80 [1989]), we stated that:

xxx xxx xxx

The rule is settled that the chattel mortgagor continues to be the owner of the property, and therefore, has the power to
alienate the same; however, he is obliged under pain of penal liability, to secure the written consent of the mortgagee.
(Francisco, Vicente, Jr., Revised Rules of Court in the Philippines, (1972), Volume IV-B Part 1, p. 525). Thus, the instruments
 of mortgage are binding, while they subsist, not only upon the parties executing them but also upon those who later, by
purchase or otherwise, acquire the properties referred to therein.

The absence of the written consent of the mortgagee to the sale of the mortgaged property in favor of a third person, therefore,
affects not the validity of the sale but only the penal liability of the mortgagor under the Revised Penal Code and the binding
effect of such sale on the mortgagee under the Deed of Chattel Mortgage.

xxx xxx xxx

The mortgagor who gave the property as security under a chattel mortgage did not part with the ownership over the same. He had the
right to sell it although he was under the obligation to secure the written consent of the mortgagee or he lays himself open to criminal
prosecution under the provision of Article 319 par. 2 of the Revised Penal Code. And even if no consent was obtained from the
mortgagee, the validity of the sale would still not be affected.

Thus, we see no reason why Wilfredo Dy, as the chattel mortgagor can not sell the subject tractor. There is no dispute that the consent
of Libra Finance was obtained in the instant case. In a letter dated August 27, 1979, Libra allowed the petitioner to purchase the tractor
and assume the mortgage debt of his brother. The sale between the brothers was therefore valid and binding as between them and to
the mortgagee, as well.

Article 1496 of the Civil Code states that the ownership of the thing sold is acquired by the vendee from the moment it is delivered to
him in any of the ways specified in Articles 1497 to 1501 or in any other manner signing an agreement that the possession is
transferred from the vendor to the vendee. We agree with the petitioner that Articles 1498 and 1499 are applicable in the case at bar.

Article 1498 states:

Art. 1498. When the sale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the
thing which is the object of the contract, if from the deed the contrary does not appear or cannot clearly be inferred.

xxx xxx xxx

Article 1499 provides:

Article 1499. The delivery of movable property may likewise be made by the mere consent or agreement of the contracting
parties, if the thing sold cannot be transferred to the possession of the vendee at the time of the sale, or if the latter already
had it in his possession for any other reason. (1463a)

In the instant case, actual delivery of the subject tractor could not be made. However, there was constructive delivery already upon the
execution of the public instrument pursuant to Article 1498 and upon the consent or agreement of the parties when the thing sold
cannot be immediately transferred to the possession of the vendee. (Art. 1499)

The respondent court avers that the vendor must first have control and possession of the thing before he could transfer ownership by
constructive delivery. Here, it was Libra Finance which was in possession of the subject tractor due to Wilfredo's failure to pay the
amortization as a preliminary step to foreclosure. As mortgagee, he has the right of foreclosure upon default by the mortgagor in the
performance of the conditions mentioned in the contract of mortgage. The law implies that the mortgagee is entitled to possess the
mortgaged property because possession is necessary in order to enable him to have the property sold.

While it is true that Wilfredo Dy was not in actual possession and control of the subject tractor, his right of ownership was not divested
from him upon his default. Neither could it be said that Libra was the owner of the subject tractor because the mortgagee can not
become the owner of or convert and appropriate to himself the property mortgaged. (Article 2088, Civil Code) Said property continues
to belong to the mortgagor. The only remedy given to the mortgagee is to have said property sold at public auction and the proceeds of
the sale applied to the payment of the obligation secured by the mortgagee. (See Martinez v. PNB, 93 Phil. 765, 767 [1953]) There is
no showing that Libra Finance has already foreclosed the mortgage and that it was the new owner of the subject tractor. Undeniably,
Libra gave its consent to the sale of the subject tractor to the petitioner. It was aware of the transfer of rights to the petitioner.

Where a third person purchases the mortgaged property, he automatically steps into the shoes of the original mortgagor. (See Industrial
Finance Corp. v. Apostol, 177 SCRA 521 [1989]). His right of ownership shall be subject to the mortgage of the thing sold to him. In the
case at bar, the petitioner was fully aware of the existing mortgage of the subject tractor to Libra. In fact, when he was obtaining Libra's
consent to the sale, he volunteered to assume the remaining balance of the mortgage debt of Wilfredo Dy which Libra undeniably
agreed to.

The payment of the check was actually intended to extinguish the mortgage obligation so that the tractor could be released to the
petitioner. It was never intended nor could it be considered as payment of the purchase price because the relationship between Libra
and the petitioner is not one of sale but still a mortgage. The clearing or encashment of the check which produced the effect of payment
determined the full payment of the money obligation and the release of the chattel mortgage. It was not determinative of the
consummation of the sale. The transaction between the brothers is distinct and apart from the transaction between Libra and the
petitioner. The contention, therefore, that the consummation of the sale depended upon the encashment of the check is untenable.

The sale of the subject tractor was consummated upon the execution of the public instrument on September 4, 1979. At this time
constructive delivery was already effected. Hence, the subject tractor was no longer owned by Wilfredo Dy when it was levied upon by
the sheriff in December, 1979. Well settled is the rule that only properties unquestionably owned by the judgment debtor and which are
not exempt by law from execution should be levied upon or sought to be levied upon. For the power of the court in the execution of its
judgment extends only over properties belonging to the judgment debtor. (Consolidated Bank and Trust Corp. v. Court of Appeals, G.R.
No. 78771, January 23, 1991).

The respondents further claim that at that time the sheriff levied on the tractor and took legal custody thereof no one ever protested or
filed a third party claim.

It is inconsequential whether a third party claim has been filed or not by the petitioner during the time the sheriff levied on the subject
tractor. A person other than the judgment debtor who claims ownership or right over levied properties is not precluded, however, from
taking other legal remedies to prosecute his claim. (Consolidated Bank and Trust Corp. v. Court of Appeals, supra) This is precisely
what the petitioner did when he filed the action for replevin with the RTC.

Anent the second and third issues raised, the Court accords great respect and weight to the findings of fact of the trial
court.1âwphi1 There is no sufficient evidence to show that the sale of the tractor was in fraud of Wilfredo and creditors. While it is true
that Wilfredo and Perfecto are brothers, this fact alone does not give rise to the presumption that the sale was fraudulent. Relationship
is not a badge of fraud (Goquiolay v. Sycip, 9 SCRA 663 [1963]). Moreover, fraud can not be presumed; it must be established by clear
convincing evidence.

We agree with the trial court's findings that the actuations of GELAC Trading were indeed violative of the provisions on human
relations. As found by the trial court, GELAC knew very well of the transfer of the property to the petitioners on July 14, 1980 when it
received summons based on the complaint for replevin filed with the RTC by the petitioner. Notwithstanding said summons, it continued
to sell the subject tractor to one of its stockholders on August 2, 1980.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals promulgated on March 23, 1990 is SET ASIDE
and the decision of the Regional Trial Court dated April 8, 1988 is REINSTATED.

SO ORDERED