A.M. NO. 2026-CFI DECEMBER 19, 1981 thumbmarked by her (pp. 38-39, CA Rollo).

thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed
NENITA DE VERA SUROZA, COMPLAINANT, granddaughter Marilyn.
VS.
JUDGE REYNALDO P. HONRADO OF THE COURT OF FIRST INSTANCE OF RIZAL, PASIG BRANCH 25 AND EVANGELINE S. Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a
YUIPCO, DEPUTY CLERK OF COURT, RESPONDENTS. resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that place.
She acquired the lot in 1966 (p. 134, Record of testate case).
AQUINO, J.:
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the executrix in her
Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First
is void because it is written in English, a language not known to the illiterate testatrix, and which is probably a forged Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge
will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself? Reynaldo P. Honrado.

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of Appeals which As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the
reveal the following tangled strands of human relationship: evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the
record.
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina
Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named Agapito who used the In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following day, April 1,
surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina
15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring
married Marcelina in 1923). Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject
on her death she had accumulated some cash in two banks. the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's estate. She
a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an and the other occupants of the decedent's house filed on April 18 in the said proceeding a motion to set aside the order
incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R.
of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a
No. 08654-R). daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the
decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his guardian in another issue the ejectment order.
proceeding. Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case). In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were claiming Marcelina's
estate, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-77,
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as guardian Record).
of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto,
California (p. 87, Record). On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with
counter-petition for administration and preliminary injunction". Nenita in that motion reiterated her allegation that
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by means of
who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later undue influence employed by Marina and Marilyn and that the thumbmarks of the testatrix were procured by fraud or
delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter trick.
(pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not
legally adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina
neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street. was not qualified to act as executrix (pp. 83-91, Record).

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will which is in To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore that the alleged
English was thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to set aside the
proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the probate of the will and a counter-
petition for letters of administration. In that opposition, Nenita assailed the due execution of the will and stated the
names and addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not
aware of the decree of probate dated April 23, 1975.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the record of the probate
case by alleging that it was useless for Nenita to oppose the probate since Judge Honrado would not change his decision.
Nenita also said that Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case might be decided in her
favor. Evangeline allegedly advised Nenita to desist from claiming the properties of the testatrix because she (Nenita) had
no rights thereto and, should she persist, she might lose her pension from the Federal Government.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He merely pointed to
never executed a win (pp. 124-125, Record). the fact that Nenita did not appeal from the decree of probate and that in a motion dated July 6, 1976 she asked for a
thirty day period within which to vacate the house of the testatrix.
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's
granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's son but Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention Evangeline
merely an anak-anakan who was not legally adopted (p. 143, Record). in her letter dated September 11, 1978 to President Marcos.

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to the record
administration because of the non-appearance of her counsel at the hearing. She moved for the reconsideration of that of the testamentary proceeding. Evangeline was not the custodian of the record. Evangeline " strongly, vehemently and
order. flatly denied" Nenita's charge that she (Evangeline) said that the sum of ten thousand pesos was needed in order that
Nenita could get a favorable decision. Evangeline also denied that she has any knowledge of Nenita's pension from the
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her Federal Government.
contention that the alleged will is void because Marcelina did not appear before the notary and because it is written in
English which is not known to her (pp. 208-209, Record). The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court Administrator's
memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of the Court of Appeals for
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284, Record). investigation, report and recommendation. He submitted a report dated October 7, 1981.

Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the probate On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and
proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also prohibition wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be
assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record). declared void.

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix and
and that the estate tax had been paid, closed the testamentary proceeding. the three attesting witnesses did not appear before him and that he notarized the will "just to accommodate a brother
lawyer on the condition" that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer never
complied with his commitment.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita charged Judge
Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the
testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know English, The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not
the language in which the win was written. (In the decree of probate Judge Honrado did not make any finding that the entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).
will was written in a language known to the testatrix.)
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the administrative case for
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the having allegedly become moot and academic.
testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition. We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case
which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in
Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the the void win should have inherited the decedent's estate.
executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix.
A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or rendering a
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance (Arts. 204 to 206,
various banks the deposits Marcelina. Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance for serious misconduct or inefficiency (
Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of judgment. "For serious TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE, PETITIONER, VERSUS ALIPIO ABAJA AND NOEL
misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or ABELLAR, RESPONDENTS.
inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules" (In re lmpeachment
of Horrilleno, 43 Phil. 212, 214-215). The Case

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he Before the Court is a petition for review[1] assailing the Decision[2] of the Court of Appeals of 12 January 2001 in CA-G.R.
failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in CV No. 47644. The Court of Appeals sustained the Resolution[3] of the Regional Trial Court of Kabankalan, Negros
the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119). Occidental, Branch 61 (“RTC-Kabankalan”), admitting to probate the last will and testament of Alipio Abada (“Abada”).

The Antecedent Facts

In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an
obviously illiterate testatrix, could have readily perceived that the will is void.
Abada died sometime in May 1940.[4] His widow Paula Toray (“Toray”) died sometime in September 1943. Both died
without legitimate children.
In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix.
But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino On 13 September 1968, Alipio C. Abaja (“Alipio”) filed with the then Court of First Instance of Negros Occidental (now
language". (p. 16, Record of testate case). That could only mean that the will was written in a language not known to the RTC-Kabankalan) a petition,[5] docketed as SP No. 070 (313-8668), for the probate of the last will and testament (“will”)
illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every of Abada. Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja (“Eulogio”) and Rosario
will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known Cordova. Alipio is the son of Eulogio.
to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
Nicanor Caponong (“Caponong”) opposed the petition on the ground that Abada left no will when he died in
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina 1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed for the following
Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix". reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last will of the testator;
and (3) it was procured by undue and improper pressure and influence on the part of the beneficiaries. Citing the same
Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the grounds invoked by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo,
will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving Humberto, Teodora and Elena Abada (“Joel Abada, et al.”), and Levi, Leandro, Antonio, Florian, Hernani and Carmela
nothing at all to her supposed father who was still alive. Tronco (“Levi Tronco, et al.”), also opposed the petition. The oppositors are the nephews, nieces and grandchildren of
Abada and Toray.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed
On 13 September 1968, Alipio filed another petition[6] before the RTC-Kabankalan, docketed as SP No. 071 (312-8669),
that the notary was not presented as a witness.
for the probate of the last will and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the
petition on the same grounds they cited in SP No. 070 (313-8668).
In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate
of the will so that he could have ascertained whether the will was validly executed. On 20 September 1968, Caponong filed a petition[7] before the RTC-Kabankalan, docketed as SP No. 069 (309), praying
for the issuance in his name of letters of administration of the intestate estate of Abada and Toray.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray. Since the oppositors did
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary for one not file any motion for reconsideration, the order allowing the probate of Toray’s will became final and executory.[8]
month is imposed on respondent judge (his compulsory retirement falls on December 25, 1981).
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble (“Caponong-Noble”)
Special Administratrix of the estate of Abada and Toray.[9] Caponong-Noble moved for the dismissal of the petition for
The case against respondent Yuipco has become moot and academic because she is no longer employed in the judiciary. probate of the will of Abada. The RTC-Kabankalan denied the motion in an Order dated 20 August 1991.[10]
Since September 1, 1980 she has been assistant city fiscal of Surigao City. She is beyond this Court's disciplinary
jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225). Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in an Order dated 16
March 1992, former Presiding Judge Edgardo Catilo had already submitted the case for decision. Thus, the RTC-
SO ORDERED. Kabankalan rendered a Resolution dated 22 June 1994, as follows:

There having been sufficient notice to the heirs as required by law; that there is substantial compliance with the
formalities of a Will as the law directs and that the petitioner through his testimony and the deposition of Felix Gallinero
was able to establish the regularity of the execution of the said Will and further, there being no evidence of bad faith and The matter in dispute in the present case is the attestation clause in the will of Abada. Section 618 of the Code of Civil
fraud, or substitution of the said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is admitted and Procedure, as amended by Act No. 2645,[15] governs the form of the attestation clause of Abada’s will.[16] Section 618
allowed probate. of the Code of Civil Procedure, as amended, provides:

As prayed for by counsel, Noel Abbellar[11] is appointed administrator of the estate of Paula Toray who shall discharge SEC. 618. Requisites of will. – No will, except as provided in the preceding section,[17] shall be valid to pass any estate,
his duties as such after letters of administration shall have been issued in his favor and after taking his oath and filing a real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator and
bond in the amount of Ten Thousand (P10,000.00) Pesos. signed by him, 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 each other. The
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue discharging her duties as testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as
such until further orders from this Court. aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters
placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the
SO ORDERED.[12] will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write
his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will
The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to dismiss the petition for probate, and all pages thereof in the presence of the testator and of each other.
that is, whether the will of Abada has an attestation clause as required by law. The RTC-Kabankalan further held that the
failure of the oppositors to raise any other matter forecloses all other issues. Requisites of a Will under the Code of Civil Procedure

Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal. Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following:

In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the RTC-Kabankalan. The (1) The will must be written in the language or dialect known by the testator;
appellate court found that the RTC-Kabankalan properly admitted to probate the will of Abada. (2) The will must be signed by the testator, or by the testator’s name written by some other person in his presence, and
by his express direction;
Hence, the present recourse by Caponong-Noble. (3) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of
each other;
The Issues (4) The testator or the person requested by him to write his name and the instrumental witnesses of the will must sign
each and every page of the will on the left margin;
The petition raises the following issues: (5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet;
(6) The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the
1. What laws apply to the probate of the last will of Abada; testator signed the will and every page of the will, or caused some other person to write his name, under his express
2. Whether the will of Abada requires acknowledgment before a notary public;[13] direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all pages of the will in
3. Whether the will must expressly state that it is written in a language or dialect known to the testator; the presence of the testator and of each other.
4. Whether the will of Abada has an attestation clause, and if so, whether the attestation clause complies with the
requirements of the applicable laws; Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language or dialect known to the
5. Whether Caponong-Noble is precluded from raising the issue of whether the will of Abada is written in a language testator. Further, she maintains that the will is not acknowledged before a notary public. She cites in particular Articles
known to Abada; 804 and 805 of the Old Civil Code, thus:
6. Whether evidence aliunde may be resorted to in the probate of the will of Abada.
Art. 804. Every will must be in writing and executed in [a] language or dialect known to the testator.
The Ruling of the Court
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. xxx[18]
The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will of Abada.
Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.[19] Article 804 of the Old Civil Code is about
The Applicable Law the rights and obligations of administrators of the property of an absentee, while Article 806 of the Old Civil Code defines
a legitime.
Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or the Old Civil Code,
and Act No. 190 or the Code of Civil Procedure[14] which governed the execution of wills before the enactment of the Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil Code is taken from Section
New Civil Code. 618 of the Code of Civil Procedure.[20] Article 806 of the New Civil Code is taken from Article 685 of the Old Civil
Code[21] which provides:
Art. 685. The notary and two of the witnesses who authenticate the will must be acquainted with the testator, or, should The first sentence of the attestation clause reads: “Suscrito y declarado por el testador Alipio Abada como su ultima
they not know him, he shall be identified by two witnesses who are acquainted with him and are known to the notary voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el
and to the attesting witnesses. The notary and the witnesses shall also endeavor to assure themselves that the testator margen izquierdo de todas y cada una de las hojas del mismo.” The English translation is: “Subscribed and professed by
has, in their judgment, the legal capacity required to make a will. the testator Alipio Abada as his last will and testament in our presence, the testator having also signed it in our presence
on the left margin of each and every one of the pages of the same.” The attestation clause clearly states that Abada
Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700 and 701, are also signed the will and its every page in the presence of the witnesses.
required to know the testator.
However, Caponong-Noble is correct in saying that the attestation clause does not indicate the number of witnesses. On
However, the Code of Civil Procedure[22] repealed Article 685 of the Old Civil Code. Under the Code of Civil Procedure, this point, the Court agrees with the appellate court in applying the rule on substantial compliance in determining the
the intervention of a notary is not necessary in the execution of any will.[23] Therefore, Abada’s will does not require number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will
acknowledgment before a notary public. shows that three witnesses signed it.

Caponong-Noble points out that nowhere in the will can one discern that Abada knew the Spanish language. She alleges This Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code. In Dichoso de
that such defect is fatal and must result in the disallowance of the will. On this issue, the Court of Appeals held that the Ticson v. De Gorostiza,[30] the Court recognized that there are two divergent tendencies in the law on wills, one being
matter was not raised in the motion to dismiss, and that it is now too late to raise the issue on appeal. We agree with based on strict construction and the other on liberal construction. In Dichoso, the Court noted that Abangan v.
Caponong-Noble that the doctrine of estoppel does not apply in probate proceedings.[24] In addition, the language used Abangan,[31] the basic case on the liberal construction, is cited with approval in later decisions of the Court.
in the will is part of the requisites under Section 618 of the Code of Civil Procedure and the Court deems it proper to pass
upon this issue. In Adeva vda. De Leynez v. Leynez,[32] the petitioner, arguing for liberal construction of applicable laws, enumerated a
long line of cases to support her argument while the respondent, contending that the rule on strict construction should
Nevertheless, Caponong-Noble’s contention must still fail. There is no statutory requirement to state in the will itself apply, also cited a long series of cases to support his view. The Court, after examining the cases invoked by the parties,
that the testator knew the language or dialect used in the will.[25] This is a matter that a party may establish by proof held:
aliunde.[26] Caponong-Noble further argues that Alipio, in his testimony, has failed, among others, to show that Abada
knew or understood the contents of the will and the Spanish language used in the will. However, Alipio testified that x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all
Abada used to gather Spanish-speaking people in their place. In these gatherings, Abada and his companions would talk cases. More than anything else, the facts and circumstances of record are to be considered in the application of any
in the Spanish language.[27] This sufficiently proves that Abada speaks the Spanish language. given rule. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have
been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any
The Attestation Clause of Abada’s Will suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from
some imperfection of language, or other non-essential defect. x x x.
A scrutiny of Abada’s will shows that it has an attestation clause. The attestation clause of Abada’s will reads:
An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may
habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del still be proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where its attestation
mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador al pie de este clause serves the purpose of the law. x x x [33]
documento y en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo, las cuales
estan paginadas correlativamente con las letras “UNO” y “DOS’ en la parte superior de la carrilla.[28] We rule to apply the liberal construction in the probate of Abada’s will. Abada’s will clearly shows four signatures: that of
Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question
Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble alleges that the on the number of the witnesses is answered by an examination of the will itself and without the need for presentation of
attestation clause fails to state the number of pages on which the will is written. evidence aliunde. The Court explained the extent and limits of the rule on liberal construction, thus:

The allegation has no merit. The phrase “en el margen izquierdo de todas y cada una de las dos hojas de que esta [T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The
compuesto el mismo” which means “in the left margin of each and every one of the two pages consisting of the same” later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence
shows that the will consists of two pages. The pages are numbered correlatively with the letters “ONE” and “TWO” as aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only
can be gleaned from the phrase “las cuales estan paginadas correlativamente con las letras “UNO” y “DOS.” permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any
Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator signed the will and its fear of dire results.[34] (Emphasis supplied)
every page in the presence of three witnesses. She then faults the Court of Appeals for applying to the present case the
rule on substantial compliance found in Article 809 of the New Civil Code.[29] The phrase “en presencia de nosotros” or “in our presence” coupled with the signatures appearing on the will itself and
after the attestation clause could only mean that: (1) Abada subscribed to and professed before the three witnesses that
the document was his last will, and (2) Abada signed the will and the left margin of each page of the will in the presence several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the
of these three witnesses. bottom. A different interpretation would assume that the statute requires that this sheet, already signed at the bottom,
be signed twice. We cannot attribute to the statute such an intention. As these signatures must be written by the
Finally, Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the witnesses testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet
witnessed and signed the will and all its pages in the presence of the testator and of each other. This Court has ruled: guaranties its authenticity, another signature on its left margin would be unnecessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would add nothing. We cannot assume that the statute regards of
Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like such importance the place where the testator and the witnesses must sign on the sheet that it would consider that their
copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be deduced signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give
that the attestation clause fulfills what the law expects of it.[35] sufficient security.

The last part of the attestation clause states “en testimonio de ello, cada uno de nosotros lo firmamos en presencia de In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the
nosotros y del testador.” In English, this means “in its witness, every one of us also signed in our presence and of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But,
testator.” This clearly shows that the attesting witnesses witnessed the signing of the will of the testator, and that each when all the dispositive parts of a will are written .on one sheet only, the object of the statute disappears because the
witness signed the will in the presence of one another and of the testator. removal of this single sheet, although unnumbered, cannot be hidden.

WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.
What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this
clause is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the
testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not
required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.

IN RE WILL OF ANA ABANGAN. GERTRUDIS ABANGAN, EXECUTRIX-APPELLEE, VS. ANASTACIA ABANGAN ET AL., Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation
OPPONENTS-APPELLANTS. clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be paged.
G.R. NO. 13431 | 1919-11-12
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
DECISION
should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when
an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands
AVANCEá'A, J .:
more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916.
As another ground for this appeal, it is alleged the records do not show that the testatrix knew the dialect in which the
From this decision the opponents appealed.
will is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the
dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the
presume that she knew this dialect in which this will is written.
disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the
testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So
the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three
ordered.
witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the
probate of the will should have been denied. We are of the opinion that the will was duly admitted to probate.
Arellano, C. J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.
In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three
LETICIA VALMONTE ORTEGA, PETITIONER, VERSUS JOSEFINA C. VALMONTE, RESPONDENT.
witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object
G.R. NO. 157451 | 2005-12-16
(referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly written on only one sheet signed at the bottom by the testator and
three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless.
DECISION
In requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a will written on

PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of showing why it should not be allowed.
In the present case, petitioner has failed to discharge this burden satisfactorily. For this reason, the Court cannot
attribute any reversible error on the part of the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to reverse and set aside the
December 12, 2002 Decision[2] and the March 7, 2003 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 44296.
The assailed Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its place judgment
is rendered approving and allowing probate to the said last will and testament of Placido Valmonte and ordering the IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines.'
issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a quo for
further and concomitant proceedings."[4] "The allowance to probate of this will was opposed by Leticia on the grounds that:
The assailed Resolution denied petitioner's Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
"x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached
retirement. In 1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot located at
#9200 Catmon St., San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in
their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who
was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more
than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15,
1983 but acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part
of the attestation clause, and was signed at the end or bottom of that page by the testator and on the left hand margin
by the three instrumental witnesses. The second page contains the continuation of the attestation clause and the
acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on the left hand
margin. It provides in the body that:
'LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:
'I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street,
Makati, Metro Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be
my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the
rites and said Church and that a suitable monument to be erected and provided my by executrix (wife) to perpetuate my
memory in the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the follow-
described properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila, described and covered
by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with my deceased
sister (Ciriaca Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property, made of strong and mixed materials used as my residence
and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-
00482, Makati, Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners,
share and share alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA
which is in the possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to
my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said
executrix be exempt from filing a bond;
1. Petitioner failed to allege all assets of the testator, especially those found in the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them proper notice
pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance sate of
senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents
and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the
time of affixing his signature thereto;' and she also opposed the appointment as Executrix of Josefina alleging her want
of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento who
prepared and notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie
Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La
Union but they came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence.
There were times though when to shave off on expenses, the testator would travel alone. And it was in one of his travels
by his lonesome self when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez,
who were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of the last
will and testament of her husband, but just serendipitously found it in his attache case after his death. It was only then
that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will. To
her estimate, the value of property both real and personal left by the testator is worth more or less P100,000.00. Josefina
declared too that the testator never suffered mental infirmity because despite his old age he went alone to the market
which is two to three kilometers from their home cooked and cleaned the kitchen and sometimes if she could not
accompany him, even traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was
in good health and that he was hospitalized only because of a cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized the testator's will, testified that it was in the first week Issues
of June 1983 when the testator together with the three witnesses of the will went to his house cum law office and
requested him to prepare his last will and testament. After the testator instructed him on the terms and dispositions he Petitioner raises the following issues for our consideration:
wanted on the will, the notary public told them to come back on June 15, 1983 to give him time to prepare it. After he
had prepared the will the notary public kept it safely hidden and locked in his drawer. The testator and his witnesses "I. Whether or not the findings of the probate court are entitled to great respect.
returned on the appointed date but the notary public was out of town so they were instructed by his wife to come back "II. Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or trickery, and that
on August 9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary public Placido Valmonte never intended that the instrument should be his last will and testament.
explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He "III. Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will."[8]
likewise explained that though it appears that the will was signed by the testator and his witnesses on June 15, 1983, the
day when it should have been executed had he not gone out of town, the formal execution was actually on August 9, In short, petitioner assails the CA's allowance of the probate of the will of Placido Valmonte.
1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like the
document to appear dirty. The notary public also testified that to his observation the testator was physically and mentally This Court's Ruling
capable at the time he affixed his signature on the will.
The Petition has no merit.
"The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went
alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany Main Issue: Probate of a Will
him to the house of Atty. Floro Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro
Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of the will At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of
but were asked to come back instead on August 9, 1983 because of the absence of the notary public; that the testator the Rules of Court. As an exception, however, the evidence presented during the trial may be examined and the factual
executed the will in question in their presence while he was of sound and disposing mind and that he was strong and in matters resolved by this Court when, as in the instant case, the findings of fact of the appellate court differ from those of
good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog dialect and that the trial court.[9]
all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during
the execution, the testator's wife, Josefina was not with them. The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate
should be allowed. The law lays down the procedures and requisites that must be satisfied for the probate of a will.[10]
"The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children Verily, Article 839 of the Civil Code states the instances when a will may be disallowed, as follows:
from the siblings of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator,
declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of "Article 839. The will shall be disallowed in any of the following cases:
sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticia's
family to live with him and they took care of him. During that time, the testator's physical and mental condition showed (1) If the formalities required by law have not been complied with;
deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
fancy and wanted to marry. (3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other
"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, person;
namely: (5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of
1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; and affixing his signature thereto."
2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility
In the present case, petitioner assails the validity of Placido Valmonte's will by imputing fraud in its execution and
"It then found these grounds extant and proven, and accordingly disallowed probate."[5] challenging the testator's state of mind at the time.

Ruling of the Court of Appeals Existence of Fraud in the Execution of a Will

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the
credibility of the notary public and the subscribing witnesses who had acknowledged the due execution of the will. circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the
Moreover, it held that the testator had testamentary capacity at the time of the execution of the will. It added that his testator's wife and sole beneficiary, conspired with the notary public and the three attesting witnesses in deceiving
"sexual exhibitionism and unhygienic, crude and impolite ways"[6] did not make him a person of unsound mind. Placido to sign it. Deception is allegedly reflected in the varying dates of the execution and the attestation of the will.

Hence, this Petition.[7] Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately
plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a] Fil-American
pensionado,"[11] thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it A Because I do not like anymore to make some alterations so I put it in my own handwriting August 9, 1983 on the
supposedly "defies human reason, logic and common experience"[12] for an old man with a severe psychological acknowledgement. (tsn, June 11, 1985, pp. 8-10)
condition to have willingly signed a last will and testament.
Eugenio Gomez:
We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is cheated.
It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the acknowledgement it is dated
executes, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to August 9, 1983, will you look at this document and tell us this discrepancy in the date?
make a certain will which, but for the fraud, he would not have made."[13] A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first week of June and
Atty. Sarmiento told us to return on the 15th of June but when we returned, Atty. Sarmiento was not there.
We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?
execution.[14] The burden to show otherwise shifts to the proponent of the will only upon a showing of credible A We returned on the 9th of August and there we signed.
evidence of fraud.[15] Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of Q This August 9, 1983 where you said it is there where you signed, who were your companions?
fraud was ever presented. A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will.[16] That the Felisa Gomez on cross-examination:
testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was
more than fifty years his junior, as the sole beneficiary; and disregarded petitioner and her family, who were the ones Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
who had taken "the cudgels of taking care of [the testator] in his twilight years."[17]
xxxxxxxxx
Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not
invalidate the document, "because the law does not even require that a [notarial] will x x x be executed and A The reason why we went there three times is that, the first week of June was out first time. We went there to talk to
acknowledged on the same occasion."[18] More important, the will must be subscribed by the testator, as well as by Atty. Sarmiento and Placido Valmonte about the last will and testament. After that what they have talked what will be
three or more credible witnesses who must also attest to it in the presence of the testator and of one another.[19] placed in the testament, what Atty. Sarmiento said was that he will go back on the 15th of June. When we returned on
Furthermore, the testator and the witnesses must acknowledge the will before a notary public.[20] In any event, we June 15, Atty. Sarmiento was not there so we were not able to sign it, the will. That is why, for the third time we went
agree with the CA that "the variance in the dates of the will as to its supposed execution and attestation was satisfactorily there on August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)
and persuasively explained by the notary public and the instrumental witnesses."[21]
Josie Collado:
The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and
October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows: Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
"Atty. Floro Sarmiento: Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses were supposed to Q For what purpose?
be in your office? A Our purpose is just to sign the will.
A Yes sir. Q Were you able to sign the will you mentioned?
Q On June 15, 1983, did the testator and his witnesses come to your house? A Yes sir. (tsn, October 21, 1987, pp. 4-5)"[22]
A They did as of agreement but unfortunately, I was out of town.
Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud. There was no
xxxxxxxxx showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies
of the three subscribing witnesses and the notary are credible evidence of its due execution.[23] Their testimony favoring
Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any
actual date when the document was acknowledged? showing of ill motives.[24]
A Yes sir.
Q What about the date when the testator and the three witnesses affixed their respective signature on the first and Capacity to Make a Will
second pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983. In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines:
Q Why did you not make the necessary correction on the date appearing on the body of the document as well as the
attestation clause? "Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties,
or that his mind be wholly unbroken, unimpaired, or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the character of the testamentary act.
"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be
insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval."
According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind
are as follows: (1) the nature of the estate to be disposed of, (2) the proper objects of the testator's bounty, and (3) the
character of the testamentary act. Applying this test to the present case, we find that the appellate court was correct in conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion
holding that Placido had testamentary capacity at the time of the execution of his will.
It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned,
the extent of his shares in them and even their locations. As regards the proper objects of his bounty, it was sufficient
that he identified his wife as sole beneficiary. As we have stated earlier, the omission of some relatives from the will did
not affect its formal validity. There being no showing of fraud in its execution, intent in its disposition becomes
irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,[25] which held thus:
"Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary
capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of
mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person
may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to
do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary
incapacity does not necessarily require that a person shall actually be insane or of unsound mind."[26]
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED.
Costs against petitioner.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division
W E C O N C U R:
ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA
Associate Justice Associate Justice
CONCHITA CARPIO MORALES CANCIO C. GARCIA
Associate Justice Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court's Division.
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman's Attestation, I certify that the
of the Court's Division.
HILARIO G. DAVIDE, JR.
Chief Justice
IN RE WILL OF THE DECEASED LEONCIA TOLENTINO. VICTORIO PAYAD, PETITIONER AND APPELLANT, VS. AQUILINA
TOLENTINO, OPPOSITOR AND APPELLANT.
1.WILLS; ATTESTATION CLAUSE; TESTATOR'S SIGNATURE.—It was not necessary that the attestation clause in question
should state that the testatrix requested Attorney A to sign her name inasmuch as the testatrix signed the will in question
in accordance with law.
2.ID. ; ID. ; TESTATOR'S MARK.—"A statute requiring a will to be 'signed' is satisfied if the signature is made by the
testator's mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.)
January 15, 1936
DECISION
GODDARD, J:
Both parties in this case appeal from an order of the trial court denying the probate of the alleged will of Leoncia
Tolentino, deceased. That court found that the will in question was executed by the deceased on the date appearing
thereon, September 7, 1933, one day before the death of the testatrix, contrary to the contention of the oppositor that it
was executed after her death. The court, however, denied probate on the ground that the attestation clause was not in
conformity with the requirements of law in that it is not stated therein that the testatrix caused Attorney Almario to
write her name at her express direction.
The appeal of the oppositor-appellant is based upon the alleged failure of the trial court in not finding that the will in
question was executed after the death of Leoncia Tolentino, or that she was mentally and physically incapable of
executing said will one day before her death. After a careful examination of the evidence on these points we find no
reason for setting aside the conclusion of the trial court as set forth above. The assignments of the oppositor-appellant
are therefore overruled.
As to the contention of the petitioner-appellant, as stated above, the trial court denied probate of the will on the sole long after noon or September 7, 1933. She took her last nourishment of milk in the morning of the following day,
ground that the attestation clause does not state that the testatrix requested Attorney Almario to write her name. The September 8, 1933, and death did not come to her until 11 o'clock sharp that morning.
last paragraph of the questioned will reads in part as follows:
The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September 7, 1933,
"En prueba de todo la cual, firmo el presente testamento con mi marca digital, porque no puedo estampar mi firma a in the house of the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to make a will and
causa de mi debilidad, rogando al abogado M. Almario que ponga mi nombre en el sitio donde he de estampar mi marca bequeath her property to the petitioner Victorio Payad in compensation according to her, for his diligent and faithful
digital . . ." services rendered to her. Victorio Palad had grown up under the care of the testatrix who had been in her home from
childhood. The will was written by Attorney Almario in his own handwriting, and was written in Spanish because he had
The evidence of record establishes the fact the Leoncia Tolentino, assisted by Attorney Almario, placed her thumb mark been instructed to do so by the testatrix. It was later read to her in the presence of Pedro L. Cruz, Jose Ferrer Cruz,
on each and every page of the questioned will and that said attorney merely wrote her name to indicate the place where Perfecto L. Ona and other persons who were then present. The testatrix approved all the contents of the document and
she placed said thumb mark. In other words Attorney Almario did not sign for the testatrix. She signed by placing her requested Attorney Almario to write her name where she had to sign by means of her thumbmark in view of the fact that
thumb mark on each and every page thereof. "A statute requiring a will to be 'signed' is satisfied if the signature is made her fingers no longer had the necessary strength to hold a pen. She did this after having taken the pen and tried to sign
by the testator's mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It without anybody's help. Attorney Almario proceeded to write the name of the testatrix on the three pages composing
is clear, therefore, that it was not necessary that the attestation clause in question should state that the testatrix the will and the testatrix placed her thumbmark on said writing with the help of said attorney, said help consisting in
requested Attorney Almario to sign her name inasmuch as the testatrix signed the will in question in accordance with guiding her thumb in order to place the mark between her name and surname, after she herself had moistened to tip of
law. her thumb with which she made such mark, on the ink pad which was brought to her for said purpose. Said attorney later
signed the three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, Jose Ferrer Cruz and Perfecto
The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino, deceased, is hereby L. Ona, who, in turn, forthwith signed it successively and exactly under the same circumstances above stated.
admitted to probate with the costs of this appeal against the oppositor-appellant.
In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1933, and that she
Malcolm, Villa-Real, Imperial and Butte, JJ., concur. never made said will because she was no longer physically or mentally in a condition to do so, the oppositor cites the
testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.
******September 5, 1936
DECISION Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of September 7,
1933, in the house of the deceased where they were then living, and that the first time that they saw him there was at
about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino was already dead, Gliceria Quisonia stating
DIAZ, J: that on that occasion Almario arrived there accompanied only by a woman named Pacing. They did not state that Almario
was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of the will. Said two
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935, praying witnesses, however, could not but admit that their room was situated at the other end of the rooms occupied by the
for the reconsideration of the decision of the court and that of the same date, praying for a new trial. deceased herself and by the petitioner Victorio Payad, and that their said room and that of Victorio Payad are separated
by the stairs of the house; that Gliceria Quisonia saw the deceased only once on the 7th and twice on the 8th, and that
The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading: Julian Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a.m. on the 7th of said month. Gliceria
Quisonia further stated that in the morning of September 7th, she prepared the noonday meal in the kitchen which was
1. That the testatrix did not personally place her thumbmark on her alleged will; situated under the house. Under such circumstances, it is not strange that the two did not nee the testatrix when,
2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will where she according to the evidence for the petitioner, she made her will and signed it by means of her thumbmark. In order to be
should place her thumbmarks; able to see her and also Almario and the instrumental witnesses of the will, on that occasion, it was necessary for them
3. That the will in question was not signed by the testatrix on the date indicated therein; to enter the room where the deceased was, or at least the adjoining roon where the will was prepared by Attorney
4. That the testatrix never made the will in question; and Almario, but they did not do so.
5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental condition to
make it. Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she could not
move and that she could hardly be understood because she could no longer enunciate, making it understood thereby,
We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in her brief that in such condition it was absolutely impossible for her to make any will. The attorney for the oppositor insists likewise
have not been duly considered, whether some fact or detail which might have led us to another conclusion has been and more so because, according to him and his witness Paz de Leon, two days before the death of the testatrix, or on
overlooked, or whether the conclusions arrived at in our decision are not supported by the evidence. We have found that September 6, 1933, she could not even open her eyes or make herself understood.
the testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years, was in good health until September 1,
1933. She had a slight cold on said date for which reason she was visited by her physician, Dr. Florencio Manuel. Said The testimony of said four witnesses is not sufficient to overthrow, or discredit the testimony of the petitioner-appellant
physician again visited her three or four days later and found her still suffering from said illness but there was no or that of Attorney Almario and the three instrumental witnesses of the will because, to corroborate them, we have of
indication that she had but a few days to live. She ate comparatively well and conserved her mind and memory at least record the testimony of the physician of the deceased and of the accountant Ventura Loreto who are two disinterested
witnesses, inasmuch as the outcome of these proceedings does not affect them in the least. The two testified that two,
three or four days before the death of the testatrix, they visited her in her home, the former professionally, and the latter
as an acquaintance, and they then found her not so ill as to be unable to move or hold a conversation. They stated that The affidavit of Attorney Gabino Fernando Viola or the testimony he may give pursuant thereto is not more competent
she spoke to them intelligently; that she answered all the questions which they had put to her, and that she could still than that of Attorney Jose Cortes because, granting that when he was called by Victorio Payad to help the deceased
move in spite of her weakness. Leoncia Tolentino to make her will and he went to her house on September 5, 1933, the deceased was almost
unconscious, was unintelligible and could not speak, it does not necessarily mean that on the day she made her will,
In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for reconsideration is September 7, 1933, she had not recovered consciousness and all her mental faculties to capacitate her to dispose of all
unfounded. her property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in question is not an can not be
newly discovered evidence of the character provided for by law, not only because it does not exclude the possibility that
The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased left a the testatrix had somewhat improved in health, which possibility became a reality at the time she made her will because
letter signed by herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with instructions not to open she was then in the full enjoyment of her mental faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz,
it until after her death; (2) that there are witnesses competent to testify on the letter in question, in addition to other Perfecto L. Ona, Victorio Payad and Marciano Almario, but also because during the hearing of these proceedings in the
evidence discovered later, which could not be presented at the trial; (3) that in the letter left by the deceased, she Court of First Instance, Attorney Viola was present, and the oppositor then could have very well called him to the witness
transfers all her property to Teodoro R. Yangco stating therein that, upon her death, all the property in question should stand, inasmuch as her attorney already knew what Attorney Viola was to testify about, yet she did not call him. The last
become Yangcos'. From this alleged fact, the oppositor infers that the deceased never had and could not have had the fact is shown by the following excerpt from pages 148 to 150 of the transcript:
intention to make the will in question, and (4) that said oppositor knew of the existence of said letter only after her
former attorney, Alejandro Panis, had been informed thereof in May, 1935, by one of Teodoro R. Yangco's attorneys "Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the last witness
named Jose Cortes. Attorney Fernando Viola who was called by the petitioner Victorio Payad to prepare the will of the deceased in his favor
on September 5, 1933.
Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion alleging
that she had discovered some additional new evidence consisting in the affidavit of Attorney Gabino Fernando Viola "COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? Mr. PANIS: No, Your Honor.
wherein the latter affirms that Victorio Payad had called him on September 5, 1933, to prepare the will of the deceased
but he did not do so because after seeing her he had been convinced that she could not make a will because she had lost "COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness stand? Mr. PANIS:
her speech and her eyes were already closed. Your Honor, he is busy in the branch presided over by Judge Sison.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by the "COURT: And when can he come? Mr. PANIS: I am now going to find out, Your Honor. If the other party, Your Honor, is
oppositor, are attached to both motions for a new trial. willing to admit what said witness is going to testify in the sense that said Attorney Fernando Viola went to the house of
the deceased on September 5, 1933, for the purpose of talking to the deceased to draft the will upon petition of Mr.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered evidence, and Victorio Payad; if the other party admits that, then I am going to waive the presentation of the witness Mr. Fernando
are not admissible to warrant the holding of a new trial, because the oppositor had been informed of the facts affirmed Viola.
by Attorney Jose Cortes in his affidavit long before this case was decided by this court. It is stated in said affidavit that in
May, 1935, Attorney Jose Cortes revealed to the attorney for the oppositor the fact that the deceased had left a letter "Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
whereby she transferred all her property to Teodoro R. Yangco, and the judgment was rendered only on January 15,
1936, or eight months later. "COURT: The court had already assumed beforehand that the other party would not admit that proposition.
"Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice to the other
The oppositor contends that she had no reason to inform the court of said newly discovered evidence inasmuch as the party's calling the witness it may wish to call.
judgment of the lower court was favorable to her. She, however, overlooks the fact that she also appealed from the
decision of the lower court and it was her duty, under the circumstances, to inform this court of the discovery of said "COURT: The Court reserves to the oppositor its right to call Attorney Viola to the witness stand."
allegedly newly discovered evidence and to take advantage of the effects thereof because, by so doing, she could better
support her claim that the testatrix made no will, much less the will in question. Said evidence, is not new and is not of If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have been
the nature of that which gives rise to a new trial because, under the law, in order that evidence may be considered newly because she considered his testimony unimportant and unnecessary, and at the present stage of the proceedings, it is
discovered evidence and may serve as a ground for a new trial, it is necessary (a) that is could not have been discovered already too late to claim that what said attorney may now testify is a newly discovered evidence.
in time, even by the exercise of due diligence; (b) that it be material, and (c) that it also be of such a character as
probably to change the result if admitted (section 497, Act No. 190; Banal vs. Safont, 8 Phil., 276). For the foregoing considerations, those stated by this court in the original decision, and the additional reason that, as
held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly discovered
The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly discovered evidence is limited to ordinary cases pending in this court on bills of exceptions, the motions for reconsideration and a
evidence, it will be sufficient to support the decision of the lower court and modify that of this court. It is simply hearsay new trial filed by the oppositor are hereby denied, ordering that the record be remanded immediately to the lower court.
or, at most, corroborative evidence. The letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the So ordered.
eyes of the law, be considered important or material evidence but this court has not the letter in question before it, and Avanceña, C.J., Villa-Real, Abad Santos, Imperial and Laurel, JJ., concur.
no attempt was ever made to present a copy thereof.
 G.R. NO. L-10907 JUNE 29, 1957 the probate of the alleged will of the deceased — and proposed that the administration of her estate be entrusted to the
AUREA MATIAS, PETITIONER, Philippine National Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution
VS. authorized by law therefor, should the court be reluctant to appoint the movant as special administratrix of said estate.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., RESPONDENTS. This motion for reconsideration was denied on March 26, 1956.

J. GONZALES ORENSE FOR PETITIONER. Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority to collect the
VENANCIO H. AQUINO FOR RESPONDENTS. rents due, or which may be due, to the estate of the deceased and to collect all the produce of her lands, which was
granted on June 23, 1956. On June 27, 1956, said respondents filed another motion praying for permission to sell the
CONCEPCION, J.: palay of the deceased then deposited in different rice mills in the province of Cavite, which respondent judge granted on
June 10, 1956. Later on, or on July 10, 1956, petitioner instituted the present action against Judge Gonzales, and
Victorina Salud and Ramon Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as Judge of the
the ground that the same had been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said court, entitled "Testate Estate
of the Deceased Gabina Raquel."
In support of this pretense, it is argued that petitioner should have preference in the choice of special administratrix of
the estate of the decedent, she (petitioner) being the universal heiress to said estate and, the executrix appointed in the
On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a document
alleged will of the deceased, that until its final disallowance — which has not, as yet, taken place she has a special
purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the age of 92
interest in said estate, which must be protected by giving representation thereto in the management of said estate; that,
years. The heir to the entire estate of the deceased — except the properties bequeathed to her other niece and
apart from denying her any such representation, the management was given to persons partial to her main opponent,
nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael Matias — is, pursuant to
namely, Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her
said instrument, Aurea Matias, likewise, appointed therein as executrix thereof, without bond. Basilia Salud, a first cousin
(Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious unfitness for said office,
of the deceased, opposed the probate of her alleged will, and, after appropriate proceedings, the court, presided over by
she being over eighty (80) years of age and blind; that said disability is borne out by the fact that on March 17, 1956,
respondent Judge, issued an order, dated February 8, 1956, sustaining said opposition and denying the petition for
Basilia Salud resigned as special administratrix upon such ground; that the Rules of Court do not permit the appointment
probate. Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now
of more than one special administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be
pending decision.
heard in connection therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the
deceased and the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein.
Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special administrator
of the estate of the deceased, and the appointment, in his stead of Ramon Plata. The motion was set for hearing on
Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction and without
February 23, 1956, on which date the court postponed the hearing to February 27, 1956. Although notified of this order,
any abuse of discretion; that petitioner can not validly claim any special interest in the estate of the deceased, because
Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent motion praying for additional time
the probate of the alleged will and testament of the latter — upon which petitioner relies — has been denied; that
within which to answer the charges preferred against him by Basilia Salud and for another postponement of said hearing.
Horacio Rodriguez was duly notified of the proceedings for his removal; and that Victorina Salud and Ramon Plata have
This motion was not granted, and Basilia Salud introduced evidence in support of said charges, whereupon respondent
not done anything that would warrant their removal.
Judge by an order, dated February 27, 1956, found Rodriguez guilty of abuse of authority and gross negligence, and,
accordingly, relieved him as special administrator of the estate of the deceased and appointed Basilia Salud as special
administratrix thereof, to "be assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide, Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for the following
interpreter and adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon reasons:
Plata . . . who is hereby appointed as co-administrator."
1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17, 1956, the
On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be appointed record shows that petitioner herein received copy of said motion of February 24, 1956, or the date after that set for the
special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over eighty (80) years of hearing thereof. Again, notice of the order of respondent Judge, dated February 23, 1956, postponing said hearing to
age, totally blind and physically incapacitated to perform the duties of said office, and that said movant is the universal February 27, 1956, was not served on petitioner herein.
heiress of the deceased and the person appointed by the latter as executrix of her alleged will. This motion was denied in 2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the appointment
an order dated March 10, 1956, which maintained "the appointment of the three above named persons" — Basilia Salud, of Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no notice that her main
Ramon Plata and Victorina Salud — "for the management of the estate of the late Gabina Raquel pending final decision opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would be considered for the management of
on the probate of the alleged will of said decedent." However, on March 17, 1956, Basilia Salud tendered her resignation said. As a consequence, said petitioner had no opportunity to object to the appointment of Basilia Salud as special
as special administratrix by reason of physical disability, due to old age, and recommended the appointment, in her administratrix, and of Victorina Salud, as her assistant and adviser, and the order of February 27, 1956, to this effect,
place, of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea Matias sought a denied due process to said petitioner.
reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said 3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise respondent Judge
resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to would not have directed that she "be assisted and advised by her niece Victorina Salud," and that the latter
said Aurea Matias — she (Victorina Salud) having been the principal and most interested witness for the opposition to "shall always act as aide, interpreter and adviser of Basilia Salud."
4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia Salud, Victorina Salud and J. Gonzales Orense, Ricardo N. Agbunag and Rudolfo L. Gonzales for petitioner.
Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained "the appointment of the three (3) Augusto de la Rosa in his own behalf and for the respondent Judge.
above-named persons for the management of the estate of the late Gabina Raquel."
5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias and Basilia Salud MONTEMAYOR, J.:
regarding the person to be appointed special administrator of the estate of the deceased. The former proposed Horacio
Rodriguez, whereas the latter urged the appointment of Victorina Salud. By an order dated August 11, 1952, the Court,
This is a petition by Aurea Matias for "Writs of Mandamus and Prohibition, with Preliminary Injunction" to compel
then presided over by Hon. Jose Bernabe, Judge, decided the matter in favor of Horacio Rodriguez and against Victorina
respondent Judge Primitivo L. Gonzales to approve and certify the record on appeal filed by her in Special Proceedings
Salud, upon the ground that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital, resides In
No. 5213 in the Court of First Instance of Cavite, wherein she sought to appeal the order of said court dated October 11,
the City of Manila, the former, a practicing lawyer and a former public prosecutor, and later, mayor of the City of Cavite,
1957, granting the claim for attorney's fees in favor of Atty. Augusto de la Rosa, "and to prohibit said Judge from taking
is a resident thereof. In other words, the order of resident thereof. In other words, the order of respondent Judge of
further interest in the case."
February 27, 1956, removing Rodriguez and appointing Victorina Salud to the management of the estate, amounted to a
reversal of the aforementioned order of Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge, the order Aurea Matias was the petitioner for the probate of the will of Gavina Raquel in Special Proceedings No. 5213,
to this effect is not, as yet, final and executory. It is pending review on appeal taken by Aurea Matias. The probate of said aforementioned (denied probate in the lower court but allowed by this Tribunal on appeal, in its decision dated June 23,
alleged will being still within realm of legal possibility, Aurea Matias has — as the universal heir and executrix designated 1958, G.R. No. L-10751); while respondent Augusto de la Rosa was the attorney for oppositor Basilia Salud. On October 4,
in said instrument — a special interest to protect during the pendency of said appeal. Thus, in the case of Roxas vs. 1957, respondent De la Rosa filed a claim for attorney's fees in the sum of P3,000.00 against the administratrix for
Pecson* (46 Off. Gaz., 2058), this Court held that a widow, designated as executrix in the alleged will and testament of services allegedly rendered by him in connection with the removal of the former special administrator, Horacio
her deceased husband, the probate of which had denied in an order pending appeal, "has . . . the same beneficial Rodriguez. On October 11, 1957, petitioner Matias filed opposition to the claim for attorney's fees, alleging that Atty. De
interest after the decision of the court disapproving the will, which is now pending appeal, because the decision is not yet la Rosa had no right to collect said fees from the estate, but rather from his client, and that granting that he was entitled
final and may be reversed by the appellate court." to do so, the claim was unreasonable and excessive. On the same day (October 11, 1957), the trial court issued an order
7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one, represented granting the claim for attorney's fees in the amount of P2,000.00.
by the petitioner, and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as the lower court had
deemed it best to appoint more than one special administrator, justice and equity demands that both factions be Matias' counsel received copy of said order on October 21, 1957. She filed a motion for reconsideration of the order. On
represented in the management of the estate of the deceased. the same date, Atty. De la Rosa filed a motion for reconsideration of the order approving the claim of Atty. Orense for
attorney's fees. Both motions for reconsideration were set for hearing on November 18, 1957; on the said date,
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be appointed to respondent De la Rosa filed opposition to the motion for reconsideration of Matias, claiming that the same was devoid of
administrator temporarily" the estate of the deceased, must be considered in the light of the facts obtaining in said case. any legal or factual merit. On the same date, November 18, 1957, the trial court after Attys. De la Rosa and Orense had
The lower court appointed therein one special administrator for some properties forming part of said estate, and a "expressed their lack of interest in prosecuting their appeal", issued an order denying both motions for reconsideration,
special administratrix for other properties thereof. Thus, there were two (2) separate and independent special petitioner's counsel receiving said order on November 25, 1957.
administrators. In the case at bar there is only one (1) special administration, the powers of which shall be exercised
jointly by two special co-administrators. In short, the Roxas case is not squarely in point. Moreover, there are authorities On December 5, 1957, there was received in the office of the clerk of court petitioner's notice of appeal, appeal bond
in support of the power of courts to appoint several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. and record on appeal.
Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).
On December 12, 1957, Atty. De la Rosa filed an opposition to approval of the record on appeal, at the same time moving
Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the matter of to dismiss said appeal on the ground that the notice of appeal had been filed out of time.
removal of Horacio Rodriguez and appointment of special administrators, after due notice to all parties concerned, for
action in conformity with the views expressed herein, with costs against respondents Victorina Salud and Ramon Plata. It On January 7, 1958, respondent Judge issued an order dismissing the appeal, considering the same to have been filed out
is so ordered. of time and denying approval of the record on appeal. Hence, the present petition for mandamusto compel respondent
Judge to certify and approve said record on appeal.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L. and Felix, JJ.,concur.
The decisive issue in this case is whether the notice of appeal, appeal bond and the record on appeal were filed within
G.R. NO. L-13391 MAY 25, 1960 the thirty day reglementary period. Respondent De la Rosa maintains that petitioner's appeal was not presented on time
because from October 21, 1957, when her counsel received a copy of the order sought to be appealed, to November 11,
AUREA MATIAS, PETITIONER, 1957 when her motion for reconsideration was filed, twenty-one days had elapsed, and that even granting for the sake of
VS. argument that the order denying petitioner's motion for reconsideration was received by her or her counsel only on
HON. PRIMITIVO L. GONZALES, IN HIS CAPACITY AS JUDGE OF THE COURT OF FIRST INSTANCE OF CAVITE AND AUGUSTO DE November 25, 1957, still from the latter date up to the filling of the notice of appeal, appeal bond and the record on
LA ROSA, RESPONDENTS. appeal on December 5, 1957, ten days had elapsed; and adding these ten days to the twenty-one days abovementioned,
then thirty-one days had passed from the date of receipt of the order sought to be appealed.
However, petitioner insists that her notice of appeal, appeal bond and the record on appeal were filed on time, that is to
say, on the 30th day, because according to her, she sent the same by registered-special delivery mail from the Manila
Post Office under registry receipt No. 33488 on December 4, 1957, which was the 30th day.
In the interest of justice and to expedite the proceedings, we made the necessary inquiry at the Manila Post Office and
the Cavite City Post Office, regarding the abovementioned registry receipt No. 33488. The Acting Postmaster of Cavite
City, in his letter of April 20, 1960, informs that one Miss Ligaya Mariano, apparently an employee in the Court of First
Instance of Cavite, received the mail matter (notice of appeal, appeal bond and record on appeal) under registry receipt
No. 33488 from the Manila Post Office on December 5, 1957; that it was a special delivery-registered mail, with P.45
stamps affixed. No information has yet been received from the Manila Postmaster. But we are willing to believe and to
find that petitioner, according to her claim, really posted at the Manila Post Office the notice of appeal, appeal bond and
the record on appeal on December 4, 1957, allowing at least one day for said mail to reach Cavite City on December 5,
1957, with the result that the notice of appeal, the appeal bond and the record on appeal were filed on the 30th day,
pursuant to the provisions of Section 1, Rule 27 of the Rules of Court, which reads:
DECISION
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943.
The will is written in the Ilocano dialect and contains the following attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this attestation clause and that of the left margin of the three pages
thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the corresponding number in letter which compose of three pages and all of
them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all
and each and every one of us witnesses.

"In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty three,
SECTION 1. Filing with the court, defined. — The filing of pleadings, appearances, motions, notices, orders and other
(1943) A.D.
papers with the court as required by these rules shall be made by filing them with the clerk of the court. The dates of the
mailing of motions, pleadings or any other papers or payments or deposits, as shown by the post office registry receipt,
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES
shall be considered as the date of their filing, payment, or deposit in this court.
(Sgd.) BIBIANA ILLEGIBLE"
In view of the foregoing, we are satisfied that the appeal had been duly perfected. Granting the writ of mandamus, the
respondent Judge or anyone acting in his place is hereby directed to give due course to the appeal. No pronouncement The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below
as to costs. by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte,
Paras, C.J., Bengzon Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez David, JJ.,concur. ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and
each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the
IN THE MATTER OF THE WILL OF ANTERO MERCADO, DECEASED. ROSARIO GARCIA, PETITIONER, VS. JULJANA LACUESTA, ET former's request said testator has written a cross at the end of his name and on the left margin of the three pages of
AL., RESPONDENTS. which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages
thereon in the presence of the testator and of each other.

1. 1.WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OP TESTATOR'S NAMB AT LATTER'S DIRECTION.—When In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino
the testator expressly caused another to sign the former's name, this fact must be recited in the attestation Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure.
clause. Otherwise, the will is fatally defective. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however,
that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and
1. 2.ID.; SIGNATURE OF TESTATOR; CROSS.—Where the cross appearing on a will is not the usual signature of the the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a
testator or even one of the ways by which he signed his name, that cross cannot be considered a valid thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil.,
signature. 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro,
81 Phil., 429.
PETITION for review by eertiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner. ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of a cross to a
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents. thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

PARAS, C. J.: What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of
G.R. No. L-4067 | 1951-11-29 the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered. from its appearance, not the same handwriting as that constituting the name of the testatrix, the will is accordingly
invalid, such fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not believe
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur. that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as follows:

PEDRO BARUT, PETITIONER AND APPELLANT, VS. FAUSTINO CABACUNGAN ET AL., OPPONENTS AND APPELLEES. No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or
effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other
WlLLS; SlGNING BY THIRD PERSON AT TESTATOR'S REQUEST.—With respect to the validity of a will, it is not important person in his presence, and by his expenses direction, and attested and subscribed by three or more credible witnesses in
that the person who writes the name of the testator should also sign his own; the important thing is that it should clearly the presence of the testator and of each. . . .
appear that the name of the testator was signed at his express direction, in the presence of three witnesses, and in the
presence of the testator and of each other. This is the important part of the section under the terms of which the court holds that the person who signs the name of
the testator for him must also sign his own name The remainder of the section reads:
EN BANC
DECISION The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his
express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the
MORELAND, J.: presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the
will was in fact signed and attested as in this section provided.
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284,1 just decided
by this court, wherein there was an application for the probate of an alleged last will and testament of the same person From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person
the probate of whose will is involved in this suit. who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of
the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed
This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria it in her presence and in the presence of each other. That is all the statute requires. It may be wise as a practical matter
Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of November, that the one who signs the testator's name signs also his own; but that it is not essential to the validity of the will.
1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan, Whether one parson or another signed the name of the testatrix in this case is absolutely unimportant so far as the
Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By validity of her will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court,
the terms of said will Pedro Barut received the larger part of decedent's property. if it did lay down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the statute
relating to the execution of wills do not in any sense require such a provision. From the standpoint of language it is an
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears at page impossibility to draw from the words of the law the inference that the persons who signs the name of the testator must
11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will that sign his own name also. The law requires only three witnesses to a will, not four.
being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she
had instructed Severo Agayan to sign her name to it as testatrix. Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be
signed by another by express direction to any instrument known to the law. There is no necessity whatever, so far as the
The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds, validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign his
among them that a later will had been executed by the deceased. The will referred to as being a later will is the one own name also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as would
involved in case No. 6284 already referred to. Proceeding for the probate of this later will were pending at the time. The enable a person proving the document to demonstrate more readily the execution by the principal. But as a matter of
evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of considering essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the
them together. signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is
none the less valid, and the fact of such signature can be proved as perfectly and as completely when the person signing
In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that for the principal omits to sign his own name as it can when he actually signs. To hold a will invalid for the lack of the
the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked signature of the person signing the name of the principal is, in the particular case, a complete abrogation of the law of
more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was wills, as it rejects and destroys a will which the statute expressly declares is valid.
alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to
overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid down.
Severo Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is immaterial who They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs.Concepcion (5 Phil. Rep.,
writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the 551). Not one of these cases is in point. The headnote in the case last above stated gives an indication of what all of cases
witnesses to the execution of the will. are and the question involved in each one of them. It says:

The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will it is The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the will. Held, That the
necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view of will was not duly executed.
the fact that, in the case at bar, the name signed below that of the testatrix as the person who signed her name, being,
All of the above cases are precisely of this character. Every one of them was a case in which the person who signed the Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a will, reads as follows:
will for the testator wrote his own name to the will instead of writing that of the testator, so that the testator's name
nowhere appeared attached to the will as the one who executed it. The case of Ex parte Arcenas contains the following Wills, authentication of . — Where a will is not signed by a testator but by some other person in his presence and by his
paragraph: direction, such other person should affix the name of the testator thereto, and it is not sufficient that he sign his own
name for and instead of the name of the testator.
Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be signed in the following
manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this must Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a will, states:
be written by the witness signing at the request of the testator.
1. Wills, requisites of; Civil Code, article repealed. — Article 695 of the Civil Procedure; consequently where a testator is
The only question for decision in that case, as we have before stated, was presented by the fact that the person who was unable to sign his name, the person signing at his request must write at the bottom of the will the full name of the
authorized to sign the name of the testator to the will actually failed to sign such name but instead signed his testator in the latter's presence, and by his express direction, and then sign his own name in full.
own thereto. The decision in that case related only to that question.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements appear:
Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever
why the will involved in the present litigation should not be probated. The due and legal execution of the will by the Wills; inability to sign; signature by another. — The testatrix was not able to sign her name to the will, and she requested
testatrix is clearly established by the proofs in this case. Upon the facts, therefore, the will must be probated. As to the another person to sign it for her. Held, That the will was not duly executed. (Following Ex parte Arcenas et al., No. 1708,
defense of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We there held that said August 24, 1905; Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parteSantiago, No. 2002, August 18, 1905.)
later will not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the The following syllabus precedes decision No. 3907:4
usual form probating the will involved in this litigation and to proceed with such probate in accordance with law.
Execution of wills. — Where it appears in a will that the testator has stated that by reason of his inability to sign his name
Arellano, C.J., Mapa and Carson, JJ., concur. he requested one of the three witnesses present to do so, and that as a matter of fact, the said witness wrote the name
and surname of the testator who, stating that the instrument executed by him contained his last will, put the sign of the
Footnotes cross between his said name and surname, all of which details are set forth in a note which the witnesses forthwith
subscribed in the presence of the testator and of each other, said will may be probated.
1 Not published.
When the essential requisites of section 618 of the Code of Civil Procedure for the execution and validity of a will have
Separate Opinions been complied with, the fact that the witness who was requested to sign the name of the testator, omitted to state the
words 'by request of .......... the testator,' when writing with his own hand the name and surname of the said testator,
TORRES, J., concurring: and the fact that said witness subscribed his name together with the other witnesses and not below the name of the
testator, does not constitute a defect nor invalidate the said will.
The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not expressly require that, when
the testator or testatrix is unable or does not know how to sign, the person who, in the presence and under the express The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria Siason:5
direction of either of them, writes in the name of the said testator or testatrix must also sign his own name thereto, it
being sufficient for the validity of the will that the said person so requested to sign the testator or testatrix write the The recital of the name of the testator as written below the will at his request serves as a signature by a third person.
name of either in his own handwriting.
Moreover among the grounds given as a basis for this same decision, the following appears:
Since this court began to decide cases with regard to the form, conditions and validity of wills executed in accordance
with the provisions of the Code of Civil Procedure, never has the specific point just above mentioned been brought into In sustaining this form of signature, this court does not intend to qualify the decisions in Ex parte Santiago (4 Phil. Rep.,
question. Now for the first time is affirmed in the majority opinion, written by the learned and distinguished Hon. Justice 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the Arcenas case the court pointed out the correct
Moreland, that, not being required by the said code, the signature of the name of the person who, at the request of the formula for a signature which ought to be followed, but did not mean to exclude any other for substantially equivalent.
testator or testatrix, writes the name of either of the latter to the will executed, is not necessary.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:
Various and considerable in number have been the decisions rendered by this court in which, as will be seen further on,
upon applying the said section 618 of Code of Civil Procedure and requiring its observance in cases where the testator or The testatrix was unable to sign her will with her own hand and requested another person to sign for her in her presence.
testatrix is unable or does not know how to sign his or her name, expressly prescribed the practical method of complying This the latter did, first writing the name of the testatrix and signing his own name below: Held, That the signature of the
with the provisions of the law on the subject. Among these decisions several were written by various justices of this testatrix so affixed is sufficient and a will thus executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)
court, some of whom are no longer on this bench, as they have ceased to hold such position.
The syllabus of decision No. 51497 sets forth that:
 which they appear, and signed without dissent by all the justices of the court on various dates. None of them hesitated to
The legality of a will is not affected by the insertion, supposed to have been made subsequently, of another name before sign the decisions, notwithstanding that it was expressly held therein that the person above mentioned should, besides
that of the testator when such name may be treated as nonexistent without affecting its validity. writing in the will the name and surname of the testator or testatrix, also sign the said instrument with his own name and
surname.
Among the conclusions contained in this last decision the following is found:
Without being understood to criticize the provision contained in the said section 618 of the Code of Civil Procedure it will
Although the said words "For Simplicia de los Santos" be considered as inserted subsequently, which we neither affirm not be superfluous to mention that the system adopted in this section is the same as was in vogue under the former laws
nor deny, because a specific determination either way is unnecessary, in our opinion the signature for the testatrix that governed in these Islands, with respect to witnesses who were not able or did not know how to sign their testimony
placed outside of the body of the will contains the name of the testatrix as if she signed the will, and also the signature of given in criminal or civil cases, in which event any person at all might write the name and surname of the witness who
the witness who, at her request, wrote the name of the testatrix and signed for her, affirming the truth of this fact, was unable or did not know how to sign, at the foot of his deposition, where a cross was then drawn, and, this done, it
attested by the other witnesses then present. And this fully complies with the provisions of section 618 of the Act. was considered that the instrument had been signed by the witness, though it is true that all these formalities were
performed before the judge and the clerk or secretary of the court, which thereupon certified that such procedure was
It is true that in none of the decisions above quoted was the rule established that the person who, at the request of the had in accordance with the law.
testator or testatrix, signed the latter's or the former's name and surname to the will must affix his own signature; but it
no less true that, in prescribing the method in which the provisions of the said section 618 to be complied with, it was The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person who writes the name
stated that, in order that a will so executed might be admitted to probate, it was an indispensable requisite that the and surname of the testator or testatrix does so by the order and express direction of the one or of the other, and this
person requested to sign in place of the testator or testatrix, should write the latter's or the former's name and surname fact must be recorded in the will; but in the matter of the signature of a deposition, the witness, who could not or did not
at the foot of the will in the presence and under the direction of either, as the case might be, and should afterwards sign know how to sign, did not need to designate anyone to write the deponent's name and surname, and in practice the
the instrument with his own name and surname. witness merely made a cross beside his name and surname, written by whomever it be.

The statement that the person who writes the name and surname of the testator or testatrix at the foot of the will With regard to the execution of wills in accordance with the provisions of previous statutes, among them those of the
should likewise affix his own signature thereto, name and surname, though it be considered to be neither a rule nor a Civil Code, the person or witness requested by the testator or testatrix who was not able or did not know how to sign,
requisite necessary to follow for the admission of the will to probate, yet it is unquestionable that, in inserting this last authenticated the will by signing it with his own name and surname, preceded by the words "at the request of the
above-mentioned detail in the aforesaid decisions, it was deemed to be a complement and integral part of the required testator or testatrix." Paragraph 2 of article 695 of the Civil Code contains the following provisions bearing on the subject:
conditions for the fulfillment of the provisions of the law.
Should the testator declare that he does not know how, or is not able to sign, one of the attesting witnesses or another
It is undisputable that the latter does not require the said subscription and signature of the person requested to affix to person shall do so for him at his request, the notary certifying thereto. This shall be done if any one of the witnesses can
the will the name of the testator or testatrix who is not able to sign; but by stating in the decisions hereinabove quoted not sign.
that the name and surname of the said person should be affixed by him, no act prohibited by law was recommended or
suggested, nor may such a detail be understood to be contrary or opposed to the plain provisions thereof. So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by the old laws with
respect to the signing of a will by a testator or testatrix who did not know how or who could not sign, consisted in that
In the preceding decision itself, it is recognized to be convenient and even prudent to require that the person requested the person appointed and requested by the testator or testatrix to sign in his or her stead, such fact being recorded in
to write the name of the testator or testatrix in the will also sign the instrument with his own name and surname. This the will, merely affixed at the bottom of the will and after the words "at the request of the testator," his own name,
statement induces us to believe that, in behalf of the inhabitants of this country and for sake of an upright administration surname and paragraph.
of justice, it should be maintained that such a signature must appear in the will, since no harm could accrue to anyone
thereby and, on the contrary, it would serve as a guarantee of the certainty of the act performed and also might It is not at all strange that the attorneys of this country, imbued with and inspired by these legal provisions, which it may
eliminate some possible cause of controversy between the interested parties. said, are traditional to them in the ideas they have formed of the existing laws in the matter of procedure in compliance
therewith as regards the execution and signing of a will, should have believed that, after the name and surname of the
The undersigned feels it his duty to admit that, though convinced of the complete repeal of article 695 of the Civil Code testator or testatrix had been written at the foot of the will, the person who signed the instrument in the manner
and, while he conceded that, in the examination and qualification of a will for the purpose of its probate, one has but to mentioned should likewise sign the same with his own name and surname.
abide by the provisions of said section 618 of the Code of Civil Procedure, the sole law applicable in the matter, yet,
perhaps imbued with the strongly impelled by a traditional conception of the laws which he has known since youth, If in various decisions it has been indicated that the person who, under the express direction of the testator or testatrix,
relative to the form of execution of testaments, he believed it to be a vary natural and common sense requisite that the wrote the latter's or the former's name and surname, should also sign the will with his own name and surname, and since
signature, with his own name and surname, of the person requested to write in the will the name and surname of the this suggestion is not opposed or contrary to the law, the undersigned is of opinion that it ought not to be modified or
testator or testatrix should form a part of the provisions of the aforementioned section 618. amended, but that, on the contrary, it should be maintained as a requisite established by the jurisprudence of this court,
inasmuch as such a requisite is not contrary to law, to public order, or to good custom, is in consonance with a tradition
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person before referred to — a of this country, does not prejudice the testator nor those interested in an inheritance, and, on the contrary, constitutes
requisite deemed to be convenient and prudent in the majority opinion — formed a part of the provisions of the law, another guarantee of the truth and authenticity of the letters with which the name and surname of the testator of
since the latter contains nothing that prohibits it. The aforementioned different decisions were drawn up in the form in testatrix are written, in accordance with his or her desire as expressed in the will.

Even though the requisites referred to were not recognized in jurisprudence and were unsupported by any legal doctrine
whatever, yet, since it is in harmony with the juridical usages and customs observed in this country, it ought, in the
humble opinion of the writer, to be maintained for the benefit of the inhabitants of the Islands and for the sake of a good
administration of justice, because it is not a question of a dangerous innovation or of one prejudicial to the public good,
but a matter of the observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts
and which in the present case has filed a vacancy left by the positive written law.
The foregoing considerations, which perhaps have not the support of better premises, but in the opinion of the
undersigned, are conducive to the realization of the purposes of justice, have impelled him to believe that the
proposition should be enforced that the witness requested or invited by the testator or testatrix to write his or her name
to the will, should also subscribed the instrument by signing thereto his own name and surname; and therefore, with the
proper finding in this sense, and reversal of the judgment appealed from, that the court below should be ordered to
proceed with the probate of the will of the decedent, Maria Salomon, in accordance with the law.
BEATRIZ NERA, ET AL., PLAINTIFFS-APPELLEES, VS. NARCISA RIMANDO, DEFENDANT-APPELLANT.
G.R. No. L-5971 | 1911-02-27
DECISION
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will
in the court below, is whether one of the subscribing witnesses was present in the small room where it was
executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at
that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a
doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator
and the other subscribing witnesses in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and
this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document
to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital importance in
the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a
will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the
outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses
would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of
inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually
saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering
their mental and physical condition and position with relation to each other at the moment of inscription of each
signature."
But it is especially to be noted that the position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument
in the presence of each other if it appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by
the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Jaboneta that he could see everything that took place by
merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And
the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to
an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their
eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment
existing conditions and their position with relation to each other were such that by merely casting the eyes in the
proper direction they could have seen each other sign. To extend the doctrine further would open the door to the
possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.
Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.
FELIX AZUELA, PETITIONER, VERSUS COURT OF APPEALS, GERALDA AIDA CASTILLO SUBSTITUTED BY ERNESTO G. CASTILLO,
RESPONDENTS.
G.R. NO. 122880 | 2006-04-12
THIRD DIVISION
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 EUGENIA E. IGSOLO
proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the address: 500 San Diego St .
Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes Sampaloc, Manila Res. Cert. No. A-7717-37
another safeguard to the validity of notarial wills - that they be acknowledged before a notary public by the testator and Issued at Manila on March 10, 1981.
the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions
as to its legitimacy. QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The Pandacan, Manila Res. Cert. No. A-458365
petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was Issued at Manila on Jan. 21, 1981
notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
LAMBERTO C. LEANO
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
HULING HABILIN NI EUGENIA E. IGSOLO Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
SA NGALAN NG MAYKAPAL, AMEN:
JUANITO ESTRERA
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St. , Sampaloc, Manila, pitongput siyam (79) na gulang, nasa address: City Court Compound,
hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali City of Manila Res. Cert. No. A574829
wala ko lahat ang naunang ginawang habilin o testamento: Issued at Manila on March 2, 1981.

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
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; (Sgd.)
PETRONIO Y. BAUTISTA
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag- Doc. No. 1232 ; NOTARIO PUBLIKO
alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Page No. 86 ; Until Dec. 31, 1981
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, Book No. 43 ; PTR-152041-1/2/81-Manila
numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa Series of 1981 TAN # 1437-977-8[1]
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; 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.
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. 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
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. letters testamentary be issued to the designated executor, Vart Prague.

(Sgd.) The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of
EUGENIA E. IGSOLO "the 12 legitimate heirs" of the decedent.[2] Geralda Castillo claimed that the will is a forgery, and that the true purpose
(Tagapagmana) 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
PATUNAY NG MGA SAKSI 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
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,[4] and the mother of a legitimate child,
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa Asuncion E. Igsolo, who predeceased her mother by three (3) months.[5]
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 Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She
nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito. 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.
 Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.[6] The RTC favorably took into will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he
account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The termed as "the substantial compliance rule."[11]
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 The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.
oppositor's arguments that the will was not properly executed and attested to in accordance with law.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the
After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, testator's name written by some other person in his presence, and by his express direction, and attested and subscribed
and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of by three or more credible witnesses in the presence of the testator and of one another.
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 The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign,
executed by the testatrix in accordance with law. 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.
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": 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
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa presence of the testator and of one another.
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 If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito."
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public
The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.
as a substantial compliance with the requirements of the law.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number
On the oppositor's contention that the attestation clause was not signed by the subscribing witnesses at the bottom of pages of the will. But an examination of the will itself reveals several more deficiencies.
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 As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.[12] There was an
the purpose of identification and attestation of the will. 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.
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 The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L.
composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second Sioca[13] and In re: Will of Andrada.[14] In Uy Coque, the Court noted that among the defects of the will in question was
page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a the failure of the attestation clause to state the number of pages contained in the will.[15] In ruling that the will could
serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The
margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be
fatal defect. 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
As regards the oppositor's assertion that the signature of the testatrix on the will is a forgery, the testimonies of the 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
three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the
testatrix and the due execution of the will.[8] signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."[16]

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.
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. Florentino[19] and Taboada v. Hon. Rosal,[20] wherein the Court Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory
allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of provision governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.[22] Reliance on these
pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is
distinction which petitioner is unable to rebut, and which we adopt with approval: 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
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue
pages used upon which the will is written. Hence, the Will is void and undeserving of probate. 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
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. compliance with all the requirements of article 805."
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 In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and
of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of
of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes.
number of pages used in the will, however, the same was found in the last part of the body of the Will: 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
"x x x 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]
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 Caneda v. Court of Appeals[26] features an extensive discussion made by Justice Regalado, speaking for the Court on the
held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation
of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 clause in wills.[27] Uy Coque and Andrada are cited therein, along with several other cases, as examples of the
Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; application of the rule of strict construction.[28] However, the Code Commission opted to recommend a more liberal
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice
contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will J.B.L. Reyes as to how Article 809 should be applied:
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 x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the
a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or
construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and
prevent the will of the testator from being defeated by purely technical considerations." (page 165-165, supra) whether all persons required to sign did so in the presence of each other must substantially appear in the attestation
(Underscoring supplied) clause, being the only check against perjury in the probate proceedings.[29] (Emphasis supplied.)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure
number of pages used in the: 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
"x x x 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.
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 Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an
entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly,
witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be
testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states itself."[31] Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed,
that "this Last Will and Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the
supplied). witnesses signed in one another's presence should be considered a fatal flaw since the attestation is the only textual
guarantee of compliance.[32]
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] 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 are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and
or decrease in the pages.[33] The failure to state the number of pages equates with the absence of an averment on the apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the
part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such
just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will signatures cannot demonstrate these witnesses' undertakings in the clause, since the signatures that do appear on the
states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. However, in this page were directed towards a wholly different avowal.
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. 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'
At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances
under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are
fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator
Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the
notarial wills.[34] Compliance with these requirements, however picayune in impression, affords the public a high degree presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental
of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in facts would be their signatures on the attestation clause.
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. 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.
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. 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
For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the
witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article
after all consists of their averments before the notary public. 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.
Cagro v. Cagro[36] 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 In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng
left-hand margin."[37] While three (3) Justices[38] considered the signature requirement had been substantially Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."[40] By no manner of contemplation can those words be construed as
complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent
duly signed, rendering the will fatally defective. 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
There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation and deed.
clause, although the page containing the same is signed by the witnesses on the left-hand margin.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and
facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily sworn to by the executor.[42] Ordinarily, the language of the jurat should avow that the document was subscribed and
bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the
of their signatures at the bottom thereof negatives their participation. 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.
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 Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the
signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will
attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses
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] 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
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the acknowledgement is not an empty meaningless act.[43] The acknowledgment coerces the testator and the instrumental
instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act
instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons
signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also
are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses
provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, it is hereby certified
those persons he/she had designated in the will. that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.
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 ARTEMIO V. PANGANIBAN
sworn to before a notary public. Chief Justice

There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (DECEASED): APOLONIO TABOADA,
discuss them at length, as they are no longer material to the disposition of this case. The provision requires that the
PETITIONER, VS. HON. AVELINO S. ROSAL, AS JUDGE OF THE COURT OF FIRST INSTANCE OF SOUTHERN LEYTE, (BRANCH III,
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, MAASIN), RESPONDENT.
unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called G.R. NO. L-36033 | 1982-11-05
"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.[45] Taken in isolation, these omissions, by themselves, may not be sufficient DECISION
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. GUTIERREZ, JR., J.:

All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.
This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased;
WHEREFORE, the petition is DENIED. Costs against petitioner.
Apolonio Taboada, Petitioner," which denied the probate of the will, the motion for reconsideration and the motion for
appointment of a special administrator.
SO ORDERED.

DANTE O. TINGA Associate Justice

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of
WE CONCUR: the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of two pages. The first page contains the
entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand
LEONARDO A. QUISUMBING margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the
Associate Justice acknowledgment is signed at the end of the attestation clause by the three 13) attesting witnesses and at the left hand
Chairperson margin by the testatrix.

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice Since no opposition was filed after the petitioner's compliance with the requirement of publications, the trial court
commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his
ATTESTATION evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness
and due execution.
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court's Division.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will
LEONARDO A. QUISUMBING
of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit
Associate Justice
the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could
Chairperson, Third Division
intervene in the summary settlement of the estate.
CERTIFICATION

Instead of complying with the order of the trial court, the petitioner filed a 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. He
also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not
held in abeyance. 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
The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion of the will is found, at the left hand margin of that page.
together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian
due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court. On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a
matter of absolute necessity for the extrinsic validity of the will that the signatures of the subscribing witnesses should be
Meanwhile, the petitioner filed a motion for the appointment of special administrator. specifically located at the end of the will after the signature of the testatrix. He contends that it would be absurd that the
legislature intended to place so heavy an import on the space or particular location where the signatures are to be found
as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex frailties of human nature.
parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because
of the petitioner's failure to comply with the order requiring him to submit the names of the intestate heirs and their
addresses. We find the petition meritorious.

The petitioner decided to file the present petition. Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself
or by the testator's name written by another person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?
It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done which the statute requires for the
Article 805 of the Civil Code provides: execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of
the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed
by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
"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. 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 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 The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the
correlatively in letters placed on the upper part of each page. genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

"The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be
the will and every page thereof, or caused some other person to write his name, under his express direction, in the ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
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.
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
"If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them." testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is
in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no
Commission, p. 103). intentional or deliberate deviation existed, and the evidence on record attest to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation clause.'"
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for the defect in the place of
signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.
WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which denied the probate of
the will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special
The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental administrator are set aside. The respondent court is ordered to allow the probate of the will and to conduct further
witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when proceedings in accordance with this decision. No pronouncement of costs.
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.
SO ORDERED.

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 Melencio-Herrera (Acting Chairman), Plana, Vasquez and Relova, JJ., concur.
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 Teehankee (Chairman), J., is on leave.
testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states
that "This Last Will and Testament consists of two pages including this page." IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA. CELSO ICASIANO, PETITIONER-APPELLEE, VS.
NATIVIDAD ICASIANO AND ENRIQUE ICASIANO, OPPOSITORS-APPELLANTS.
G.R. NO. L-18979 | 1964-06-30
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose DECISION
of the requirement that the attestation clause must state the number of pages used:

REYES, J.B.L., J.:

"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 Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate,
held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as
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. executor Celso Icasiano, the person named therein as such.
180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the
contain a statement of the number of sheets or passes composing the will and that if this is missing or is omitted, it will original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano
have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a as executor thereof.
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 The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three
a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of (3) successive weeks, previous to the time appointed, in the newspaper "Manila Chronicle", and also caused personal
construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to service of copies thereof upon the known heirs.
prevent the will of the testator from being defeated by purely technical considerations."
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958,
she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach: " . . . Impossibility 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator.
of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses, did sign the
defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's
was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize opposition to the probate of the alleged will.
the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the
 On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed execution of the will and the provisions and dispositions thereof, whereby proponents- appellees stand to profit from
a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in properties held by them as attorneys- in-fact of the deceased and not enumerated or mentioned therein, while
duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the
which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and probate of it, on penalty of forfeiting their share in the portion of free disposal.
Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition; and on July 30, 1959, oppositor Natividad Icasiano filed her amended We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and
opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same occasion, in the presence of
order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the the three attesting witnesses, the notary public who acknowledged the will, and Atty. Samson, who actually prepared the
amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence. documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson together before they were actually
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The
12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appealing in the duplicate original
her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental were not written by the same hand, which wrote the signatures in the original will leaves us unconvinced, not merely
witnesses, namely; attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy; that the will was because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of
acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose the standards used by him to support the conclusion that the differences between the standard and questioned
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only
Samson, who was also present during the execution and signing of the decedent's last will and testament, together with three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that
former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a little girl. Of the said three instrumental with so few standards the expert's opinion that the signatures in the duplicate could not be those of the testatrix
witnesses to the execution of the decedent's last will and testament attorneys Torres and Natividad were in the becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly
Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did that there are radical differences that would justify the charge of forgery, taking into account the advanced age of the
the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorney testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right after
Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared the original. These factors were not discussed by the expert.
one original and two copies of Josefa Villacorte's last will and testament at his house in Baliuag, Bulacan, but he brought
only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan. Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear
reliable, considering that standard and challenged writings were affixed to different kinds of paper, with different
The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert sufficient
marked as Exhibit "A", consists of five pages, and while signed at the end and in every page, it does not contain the to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy, being in the United
signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy States during the trial, did not testify).
attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page. Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is
proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 216). Diversity
The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The
subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and testamentary disposition that the heirs should not inquire into other property and that they should respect the
subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except distribution made in the will, under penalty of forfeiture of their shares in the free part, do not suffice to prove fraud or
for the missing signature of attorney Natividad on page three (3) of the original; that pages of the original and duplicate undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary
of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited experience, often results in a sizeable portion of the estate being diverted into the hands of non- heirs and speculators.
therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by Whether these clauses are valid or not is a matter to be litigated on another occasion. It is also well to note that, as
the testatrix; that the attestation clause is in a language also known to and spoken by the witnesses; that the will was remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually
executed on one single occasion in duplicate copies; and that both the original and the duplicate copy were duly repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence
acknowledged before Notary Public Jose Oyengco Ong of Manila on the same date - June 2, 1956. against the validity of the will.

Witness Natividad, who testified on his failure to sign page three (3) of the original, admits that he may have lifted two On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a
pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence. testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of
probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom
duplicate (Exhibit A-1) are not genuine, nor were they written or affixed on the same occasion as the original, and further the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted
aver that granting that the documents were genuine, they were executed through mistake and with undue influence and as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control,
pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained,
stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil vs. Murciano, 88 Phil. 260; 49 Off. Gaz. 1459, at 1479 (decision on The main objection insisted upon by the appellants is that the will is fatally defective, because its attestation clause is not
reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause". signed by the attesting witnesses. 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
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own left-hand margin.
testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of
the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the
defect at the time. 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
This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, of their signatures at the bottom thereof negatives their participation.
where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said
be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an
pages of a will, the failure to mark the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to
Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order 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.
guard against fraud and bad faith but without undue or unnecessary curtailment of the testamentary privilege.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs
The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not against the petitioner and appellee.
entitled to probate. Since they opposed probate of the original because it lacked one signature in its third page, it is
easily discerned that oppositors-appellants run here into a dilemma: if the original is defective and invalid, then in law Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid
Separate Opinions
and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of BAUTISTA ANGELO, J., dissenting:
the original testament was inadvertent and not intentional.
I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore,
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the should be admitted to probate. It appears that the will was signed by the testator and was attested by three instrumental
jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified not only that the will was
petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the signed by the testator in their presence and in the presence of each other but also that when they did so, the attestation
duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly clause was already written thereon. Their testimony has not been contradicted. The only objection set up by the
identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not appear
amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition. immediately after the attestation clause.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala, and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.
TESTATE ESTATE OF THE LATE VICENTE CAGRO. JESUSA CAGRO, PETITIONER-APPELLEE, VS. PELAGIO CAGRO, ET AL.,
OPPOSITORS-APPELLANTS.
G.R. NO. L-5826 | 1953-04-29
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this court said that
when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three
witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless." In
such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the
purpose of the law - which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's
dispositions - has already been accomplished. We may say the same thing in connection with the will under consideration
because while the three instrumental witnesses did not sign immediately after the attestation clause, the fear
entertained by the majority that it may have been only added on a subsequent occasion and not at the signing of the will,
has been obviated by the uncontradicted testimony of said witnesses to the effect that such attestation clause was
already written in the will when the same was signed.

DECISION The following observation made by this court in the Abangan case is very fitting:

"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
PARAS, C.J.: 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
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when
probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949. an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded."(supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30,
of which, in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (articles 788 1965 and is available in this Office['s] files.[6]
and 791, New Civil Code).
Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1)
I am therefore of the opinion that the will in question should be admitted to probate. that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He
Feria, J., concurs. alleged that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly
executed and actually notarized by respondent per affidavit[7] of Gloria Nebato, common-law wife of Vicente Lee, Sr. and
TUASON, J., dissenting: corroborated by the joint affidavit[8] of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr.
xxx."[9]
I concur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously sets down as a
fact that the attestation clause was not signed, when the witnesses' signatures appear on the left margin and the real Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by
and only question is whether such signatures are legally sufficient. complainant against him in the Office of the Ombudsman "did not prosper."
The only answer, in our humble opinion, is yes. The law on wills does not provide that the attesting witness should sign
Respondent did not dispute complainant's contention that no copy of the will was on file in the archives division of the
the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are not good.
NCCA. He claimed that no copy of the contested will could be found there because none was filed.
A letter is not any the less the writer's simply because it was signed, not at the conventional place but on the side or on
top.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first
MANUEL L. LEE, COMPLAINANT, VERSUS ATTY. REGINO B. TAMBAGO, RESPONDENT. file an action for the declaration of nullity of the will and demand his share in the inheritance.
A.C. NO. 5281 | 2008-02-12
RESOLUTION In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[10]

CORONA, J.: In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old
Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics,
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with particularly Canon 1[11] and Rule 1.01[12] of the Code of Professional Responsibility (CPR).[13] Thus, the investigating
violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament. commissioner of the IBP Commission on Bar Discipline recommended the suspension of respondent for a period of three
months.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will.
Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
witnesses to its execution.
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and,
which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant. finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and
considering Respondent's failure to comply with the laws in the discharge of his function as a notary public, Atty. Regino
The will was purportedly executed and acknowledged before respondent on June 30, 1965.[1] Complainant, however, B. Tambago is hereby suspended from the practice of law for one year and Respondent's notarial commission is Revoked
pointed out that the residence certificate[2] of the testator noted in the acknowledgment of the will was dated January and Disqualified from reappointment as Notary Public for two (2) years.[14]
5, 1962.[3] Furthermore, the signature of the testator was not the same as his signature as donor in a deed of
donation[4] (containing his purported genuine signature). Complainant averred that the signatures of his deceased father We affirm with modification.
in the will and in the deed of donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in
all angle[s]."[5] A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.[15] A will may either be notarial or holographic.
Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay
and Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters' The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities
affidavits. surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity.[16]
Complainant further asserted that no copy of such purported will was on file in the archives division of the Records
Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator
certification of the chief of the archives division dated September 19, 1999 stated: himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another.[17]
 expired residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the
The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be Residence Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay
considered void.[18] This is in consonance with the rule that acts executed against the provisions of mandatory or and Grajo.
prohibitory laws shall be void, except when the law itself authorizes their validity.
On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives
The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the division, Article 806 provides:
witnesses.[19] The importance of this requirement is highlighted by the fact that it was segregated from the other
requirements under Article 805 and embodied in a distinct and separate provision.[20] Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. The notary public shall
not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (emphasis supplied)
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. It involves an extra step undertaken whereby the signatory actually declares to the Respondent's failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a
notary public that the same is his or her own free act and deed.[21] The acknowledgment in a notarial will has a two-fold cause for disciplinary action.
purpose: (1) to safeguard the testator's wishes long after his demise and (2) to assure that his estate is administered in
the manner that he intends it to be done. Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his
notarial register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological
A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither order:
strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence
certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator's
old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent 1. nature of each instrument executed, sworn to, or acknowledged before him;
invalidated the will. 2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will 4. date of execution, oath, or acknowledgment of the instrument;
and those of notarization. As we held in Santiago v. Rafanan:[22] 5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to 7. if the instrument is a contract, a brief description of the substance of the instrument.[27]
every document acknowledged before him had presented the proper residence certificate (or exemption from the
residence tax); and to enter its number, place of issue and date as part of such certification. In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out
a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To
These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary reinforce his claim, he presented a photocopy of a certification[28] stating that the archives division had no copy of the
weight attached to notarized documents.[23] A notary public, especially a lawyer,[24] is bound to strictly observe these affidavit of Bartolome Ramirez.
elementary requirements.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The
The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or proponent must first prove the existence and cause of the unavailability of the original,[29] otherwise, the evidence
instrument: presented will not be admitted. Thus, the photocopy of respondent's notarial register was not admissible as evidence of
the entry of the execution of the will because it failed to comply with the requirements for the admissibility of secondary
Section 251. Requirement as to notation of payment of [cedula] residence tax. - Every contract, deed, or other document evidence.
acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper
[cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary In the same vein, respondent's attempt to controvert the certification dated September 21, 1999[30] must fail. Not only
public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as did he present a mere photocopy of the certification dated March 15, 2000;[31] its contents did not squarely prove the
aforesaid.[25] fact of entry of the contested will in his notarial register.

The importance of such act was further reiterated by Section 6 of the Residence Tax Act[26] which stated: Notaries public must observe with utmost care[32] and utmost fidelity the basic requirements in the performance of
their duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.[33]
When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be
the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be
residence certificate showing payment of the residence taxes by such person xxx. taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in
this case, are no longer alive to identify the instrument and to confirm its contents.[34] Accordingly, respondent must be
In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it held accountable for his acts. The validity of the will was seriously compromised as a consequence of his breach of
is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an duty.[35]
 Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial commission
In this connection, Section 249 of the old Notarial Law provided: REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the
court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public.
Grounds for revocation of commission. - The following derelictions of duty on the part of a notary public shall, in the
discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission: Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office
of the Bar Confidant, as well as made part of the personal records of respondent.
xxx xxx xxx
SO ORDERED.
(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the
manner required by law.
TESTATE ESTATE OF THE LATE APOLINARIA LEDESMA. FELICIDAD JAVELLANA, PETITIONER-APPELLEE, VS. DOÑA MATEA
xxx xxx xxx
LEDESMA, OPPOSITOR-APPELLANT.
(f) The failure of the notary to make the proper notation regarding cedula certificates.[36]
G.R. NO. L-7179 | 1955-06-30
These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted
DECISION
transgressions of Section 20 (a), Rule 138 of the Rules of Court[37] and Canon 1[38] and Rule 1.01[39] of the CPR.
REYES, J.B.L., J.:
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the
Constitution and obey the laws of the land.[40] For a lawyer is the servant of the law and belongs to a profession to By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect,
which society has entrusted the administration of law and the dispensation of justice.[41] marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and
While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased,
responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was
moreover make himself an example for others to emulate.[42] Being a lawyer, he is supposed to be a model in the made directly to this Court because the value of the properties involved exceeded two hundred thousand pesos.
community in so far as respect for the law is concerned.[43]
Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the
dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below,
The practice of law is a privilege burdened with conditions.[44] A breach of these conditions justifies disciplinary action
where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the
against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has
testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the
engaged in professional misconduct.[45] These sanctions meted out to errant lawyers include disbarment, suspension
notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the
and reprimand.
codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution.
Disbarment is the most severe form of disciplinary sanction.[46] We have held in a number of cases that the power to The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal
disbar must be exercised with great caution[47] and should not be decreed if any punishment less severe - such as Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they
reprimand, suspension, or fine - will accomplish the end desired.[48] The rule then is that disbarment is meted out only saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento"
in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court.[49] and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because
she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not
Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement
claims that he "exercised his duties as Notary Public with due care and with due regard to the provision of existing law that no one would question it because the property involved was exclusively hers.
and had complied with the elementary formalities in the performance of his duties xxx," we find that he acted very
irresponsibly in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the
the practice of law. It is, as well, a sufficient basis for the revocation of his commission[50] and his perpetual improbable story of these witnesses. It is squarely contradicted by the concordant testimony of the instrumental
disqualification to be commissioned as a notary public.[51] witnesses, Vicente Yap, Atty. Ramon C. Tabiana, and his wife Gloria Montinola, who asserted under oath that the
testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or
Lawyer's Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in order
Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law. to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the cross-
examination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word
"testamento" for the first time when Yap used it; and yet they claimed ability to recall that word four years later, despite
the fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally
conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will,
and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor give
satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to have heard what
allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been
separated from the deceased's quarters, and standing at a much lower level, so that conversations in the main building
could not be distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by
claiming that he was upstairs in a room where the servants used to eat when he heard Yap converse with his mistress;
but this correction is unavailing, since it was plainly induced by two highly leading questions from contestant's counsel
that had been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18
years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-
appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and
the identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness
Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the
argument that the use of some Spanish terms in the codicil and testament (like legado, partes iguales, plena propieda) is
proof that its contents were not understood by the testatrix, it appearing in evidence that those terms are of common
use even in the vernacular, and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in
Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil
had been signed by the testratrix and the witnesses at San Pablo Hospital, the same was signed and sealed by notary
public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil
to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the
part of the witnesses, but appears rather due to a well- established phenomenon, the tendency of the mind, in recalling
past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the
presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699),
the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one
single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses must sign
in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary
public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was
done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was
duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act.
Hence their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule
that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim
puts it, "uno eodem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It
is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses
should acknowledge the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador and Concepcion, JJ., concur.
GAPITA N. CRUZ, PETITIONER, VS. HON. JUDGE GUILLERMO P. VILLASOR, PRESIDING JUDGE OF BRANCH I, COURT OF
FIRST INSTANCE OF CEBU, AND MANUEL B. LUGAY, RESPONDENTS.
G.R. No. L-32213 | 1973-11-26
DECISION
ESGUERRA, J:
Petition to review on certiorari the judgment of the Court of First Instance of Cebu allowing the probate of the last will
and testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased,
opposed the allowance of the will (Exhibit "E"), alleging that the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said instrument was executed without the testator having been fully
informed of the contents thereof, particularly as to what properties he was disposing; and that the supposed last will and
testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of
the said last will and testament. Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether the supposed last
will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806
of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the
second requiring the testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H.
Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have
been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear
before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues
that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand,
private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the
trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting
witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227
which, insofar as pertinent, reads as follows:
"It is said that there are practical reasons for upholding a will as against the purely technical reason that one of the
witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than
as attesting the execution of the instrument."
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the
last will and testament in question was not executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v Castro,
100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead
of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary
of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness
were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. This
cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge
his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements.
Balinon v. De Leon, 50 O. G. 583.) That function would be defeated if the notary public were one of the attesting or
instrumental witnesses. For them he would be interested in sustaining the validity of the will as it directly involves himself
and the validity of his own act. It would place him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud (Report of the Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public may, in addition, act as a witness to the
execution of the document he has notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox,
43 Ill. 130) There are others holding that his signing merely as a notary in a will nonetheless makes him a witness
thereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas' Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson v. Utterback, 122 So. 496; In Re Baybee's Estate 160 N. W. 900; Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive
of the issue herein, because the notaries public and witnesses referred to in the aforecited cases merely acted as
instrumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the notary public acted not
only as attesting witness but also as acknowledging witness, a situation not envisaged by Article 805 of the Civil Code
which reads:
"ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will or file another with the office of the Clerk of Court." [Emphasis supplied]
To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the
effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805
requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has
been said, that only two witnesses appeared before the notary public for that purpose. In the circumstances, the law
would not be duly observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament
of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.
EN BANC
[G.R. NO. L-26615. APRIL 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, PETITIONERS, V. HON. CONRADO M. VASQUEZ, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA,
BRANCH AND CONSUELO GONZALES VDA. DE PRECILLA, RESPONDENTS.
[G.R. NO. L-26884. APRIL 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, PETITIONERS, V. HON. CONRADO M. VASQUEZ, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA,
BRANCH V, REGISTER OF DEEDS OF MANILA, AND CONSUELO GONZALES VDA. DE PRECILLA, RESPONDENTS.
[G.R. NO. L-27200. APRIL 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, DECEASED CONSUELO S. GONZALES VDA. DE PRECILLA, PETITIONER
ADMINISTRATRIX, V. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN MAURICIO,
REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO
JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO
AND PASCUALA NARCISO-MANAHAN, OPPOSITORS-APPELLANTS.
ANTONIO ENRILE INTON FOR PETITIONER REV. FATHER LUCIO V. GARCIA.
PEDRO V. GARCIA FOR PETITIONER ANTONIO JESUS DE PRAGA, ET. AL.
LEANDRO SEVILLA & RAMON C. AQUINO AND MELQUIADES M. VIRATA, JR. FOR RESPONDENT CONSUELO S.
GONZALES VDA. DE PRECILLA.
LORENZO C. GELLA FOR RESPONDENT REGISTER OF DEEDS OF MANILA. LEANDRO SEVILLA & RAMON C. AQUINO FOR
PETITIONER ADMINISTRATRIX. CASTRO, MAKALINTAL & ASSOCIATES FOR OPPOSITORS-APPELLANTS ENCARNACION
NARCISO, ET. AL.
PEDRO GARCIA FOR OPPOSITORS-APPELLANTS DR. JAIME ROSARIO, ET. AL.
ANTONIO ENRILE INTON FOR OPPOSITORS-APPELLANTS FR. LUCIO V. GARCIA AND ANTONIO JESUS DE PRAGA.
SALONGA, ORDOÑEZ, YAP, SICAT & ASSOCIATES FOR OPPOSITORS-APPELLANTS SEVERINA NARCISO, ET. AL.
GEORGE G. ARBOLARIO AND SIXTO R. REYES & VICENTE REDOR FOR OPPOSITORS-APPELLANTS NATIVIDAD DEL
ROSARIO SARMIENTO, ET. AL.
SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE; TESTATRIX’S DEFECTIVE
EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER WILL.— The declarations in court of the
opthalmologist as to the condition of the testatrix’s eyesight fully establish the fact that her vision remained
mainly for viewing distant objects and not for reading print; that she was, at the time of the execution of the
second will on December 29, 1960, incapable of reading and could not have read the provisions of the will
supposedly signed by her.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR.— Upon its face, the
testamentary provisions, the attestation clause and acknowledgment were crammed together into a single
sheet of paper, apparently to save on space. Plainly, the testament was not prepared with any regard for the
defective vision of Dña. Gliceria, the typographical errors remained uncorrected thereby indicating that the
execution thereof must have been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of one’s worldly possessions should be embodied in an informal and
untidy written instrument; or that the glaring spelling errors should have escaped her notice if she had actually
retained the ability to read the purported will and had done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE — READING OF THE
WILL TWICE TO A BLIND TESTATOR; PURPOSE.— The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will himself is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance with his wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the 1960 will there is nothing
in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines that "if the testator is
blind, the will shall be read to him twice," have not been complied with, the said 1960 will suffer from infirmity
that affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS; GROUNDS FOR
REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR
UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR.— Considering that the alleged deed of sale was
executed when Gliceria del Rosario was already practically blind and that the consideration given seems
unconscionably small for the properties, there was likelihood that a case for annulment might be filed against
the estate or heirs of Alfonso Precilla. And the administratrix being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to
the estate. This, plus her conduct in securing new copies of the owner’s duplicate of titles without the court’s
knowledge and authority and having the contract bind the land through issuance of new titles in her husband’s
name, cannot but expose her to the charge of unfitness or unsuitability to discharge the trust, justifying her
removal from the administration of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE RIGHT OF POSSESSION
OF REAL PROPERTY." — On the matter of lis pendens, the provisions of the Rules of Court are clear: notice of
the pendency of an action may be recorded in the office of the register of deeds of the province in which the
property is situated, if the action affects "the title or the right of possession of (such) real property."cralaw
 virtua1aw library the estate upon a bond for P30,000.00. The order was premised on the fact the petitioner was managing the properties
belonging to the estate even during the lifetime of the deceased, and to appoint another person as administrator or co
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is simply the fitness or administrator at that stage of the proceeding would only result in further confusion and difficulties.
unfitness of said special administratrix to continue holding the trust, it does not involve or affect at all the title
to, or possession of, the properties covered by TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent motion to require the
such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties. Hongkong & Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965.
The court denied this motion on 22 October 1965 for being premature, it being unaware that such deposit in the name of
DE C I S I O N the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de Praga, Natividad de
REYES, J.B.L., J.: Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the special administratrix. It was their
claim that the special administratrix and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario to
execute a simulated and fraudulent deed of absolute sale dated 10 January 1961 allegedly conveying unto said spouses
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No. 62618) admitting to for the paltry sum of P30,000.00 ownership of 3 parcels of land and the improvements thereon located on Quiapo and
probate the alleged last will an, testament of the late Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L- San Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors contended that since it is the duty of the
26615 and L-2684 are separate petitions for mandamus filed by certain alleged heirs of said decedent seeking (1) to administrator to protect and conserve the properties of the estate, and it may become necessary that, an action for the
compel the probate court to remove Consuelo S. Gonzales-Precilla as special administratrix of the estate, for conflict of annulment of the deed of sale land for recovery of the aforementioned parcels of land be filed against the special
interest, to appoint a new one in her stead; and (2) to order the Register of Deeds of Manila to annotate notice of lis administratrix, as wife and heir of Alfonso Precilla, the removal of the said administratrix was imperative.
pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, married to Consuelo Gonzales
y Narciso, and said to be properly belonging to the estate of the deceased Gliceria A. del Rosario. On 17 December 1965, the same oppositors prayed the court for an order directing the Special Administratrix to deposit
with the Clerk of Court all certificates of title belonging to the estate. It was alleged that on 22 October 1965, or after her
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:chanrob1es virtual appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix of the estate of the
1aw library deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for the issuance of
new copies of the owner’s duplicates of certain certificates of title in the name of Gliceria del Rosario, supposedly needed
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendents, by her "in the preparation of the inventory" of the properties constituting the estate. The motion having been granted,
ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an new copies of the owner’s duplicates of certificates appearing the name of Gliceria del Rosario (among which were TCT
estate consisting mostly of real properties. Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965, according to the oppositors,
the same special administratrix presented to the Register of Deeds the deed of sale involving properties covered by TCT
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the Court of First Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso
Instance of Manila for probate of the alleged last will and testament of Gliceria A. del Rosario, executed on 29 December Precilla, and, in consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736 and 81737)
1960, and for her appointment as special administratrix of the latter’s estate, said to be valued at about P100,000.00, were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.
pending the appointment of a regular administrator thereof.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an declaring the due execution of the will, the probate court took note that no evidence had been presented to establish
earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in that the testatrix was not of sound mind when the will was executed; that the fact that she had prepared an earlier will
both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees did not, prevent her from executing another one thereafter; that the fact that the 1956 will consisted of 12 pages
in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del Rosario- whereas the 1960 testament was contained in one page does not render the latter invalid; that, the erasures and
Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and alterations in the instrument were insignificant to warrant rejection; that the inconsistencies in the testimonies of the
Vicente and Delfin, surnamed Mauricio, — the latter five groups of persons all claiming to be relatives of Doña Gliceria instrumental witnesses which were noted by the oppositors are even indicative of their truthfulness. The probate court,
within the fifth civil degree. The oppositions invariably charged that the instrument executed in 1960 was not intended also considering that petitioner had already shown capacity to administer the properties of the estate and that from the
by the deceased to be her true will; that the signatures of the deceased appearing in the will was procured through provisions of the will she stands as the person most concerned and interested therein, appointed said petitioner regular
undue and improper pressure and influence the part of the beneficiaries and/or other persons; that the testatrix did not administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case being docketed in this
know the object of her bounty; that the instrument itself reveals irregularities in its execution, and that the formalities Court as G.R. No. L-27200.
required by law for such execution have not been complied with.
Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14 December 1965 for the removal
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group of Dr. Jaime of the then special administratrix, as follows:jgc:chanrobles.com.ph
Rosario in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses interest adverse to the estate. After the parties were duly heard, "It would seem that the main purpose of the motion to remove the special administratrix and to appoint another one in
the probate court, in its order of 2 October 1965, granted petitioner’s prayer and appointed her special administratrix of her stead, is in order that an action may be filed against the special administratrix for the annulment of the deed of sale
executed by the decedent on January 10, 1961. Under existing documents, the properties sold pursuant to the said deed Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are evident from the
of absolute sale no longer forms part of the estate. The alleged conflict of interest is accordingly not between different records. The will appeared to have been prepared by one who is not conversant with the spelling of Tagalog words, and it
claimants of the same estate. If it is desired by the movants that an action be filed by them to annul the aforesaid deed has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to the will,
absolute sale, it is not necessary that the special administratrix be removed and that another one be appointed to file two of whom are fellow Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla who instructed
such action. Such a course of action would only produce confusion and difficulties in the settlement of the estate. The them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an important document, 10 and who
movants may file the aforesaid proceedings, preferably in an independent action, to secure the nullity of the deed of took their residence certificates from them a few days before the will was signed. 11 Precilla had met the notary public
absolute even without leave of this court:" and witnesses Rosales and Lopez at the door of the residence of the old woman; he ushered them to the room at the
second floor where the signing of the document took place; 12 then he fetched witness Decena from the latter’s
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the decedent, the haberdashery shop a few doors away and brought him to, the house the testatrix. 13 And when the will was actually
same was also denied, for the reason that if the movants were referring to the old titles, they could no longer be executed Precilla was present. 14
produced, and if they meant the new duplicate copies thereof that were issued at the instance of the special
administratrix, there would be no necessity therefor, because they were already cancelled and other certificates were The oppositors-appellants in the present case, however, challenging the correctness of the probate court’s ruling,
issued in the name of Alfonso Precilla. This order precipitated the oppositors’ filing in this Court of a petition for maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not
mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.
due course on 6 October 1966.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said
On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the Register of ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when Doña Gliceria
Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name of del Rosario saw him for consultation on 11 March 1960 he found her left eye to have cataract (opaque lens), 15 and that
Alfonso Precilla. And when said official refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an it was "above normal in pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to the
order to compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles contending that the conditions of her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph
matter of removal and appointment of the administratrix, involving TCT Nos. 81735, 81736, and 81737, was already
before the Supreme Court. Upon denial of this motion on 12 November 1966, oppositors filed another mandamus action, "Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from which you
this time against the probate court and the Register of Deeds. The case was docketed and given due course in this Court could inform the court as to the condition of the vision of the patient as to the right eve?
as G.R. No. L-26864. "A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which showed that the
right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye with her correction 20 over
Foremost of the questions to be determined here concerns the correctness of the order allowing the probate of the 1960 300 (20/300).
will. "Q In layman’s language, Doctor, what is the significance of that notation that the right had a degree of 20 over 60
(20/60)?
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her "A It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty feet.
lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew "Q But would that grade enable the patient to read print?
and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary "A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw virtua1aw library
public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M. (pages 20-21, t.s.n., hearing of 23 March 1966)
Tividad.
The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes Hospital on 8
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly August 1960; as of 23 August 1960, inspite of the glasses her vision was only "counting fingers," 17 at five feet. The cross-
declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special administratrix) examination of the doctor further elicited the following responses:jgc:chanrobles.com.ph
to witness the execution of the last will of Doña Gliceria A. del Rosario; that they arrived at the house of the old lady at
No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix at the time "Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
was apparently of clear and sound mind, although she was being aided by Precilla when she walked; 3 that the will, which "A After her discharge from the hospital, she was coming to my clinic for further examination and then sometime later
was already prepared, was first read "silently" by the testatrix herself before she signed it; 4 that he three witnesses glasses were prescribed.
thereafter signed the will in the presence of the testatrix and the notary public and of one another. There is also x x x
testimony that after the testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and "Q And the glasses prescribed by you enabled her to read, Doctor?
deed, the notary public asked for their respective residence certificates which were handed to him by Alfonso Precilla, "A As far as my record is concerned, with the glasses for the left eye which I prescribed — the eye which I operated —
clipped together; 5 that after comparing them with the numbers already written on the will, the notary public filled in the she could see only forms but not read. That is on the left eye.
blanks in the instrument with the date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also
testified that on that occasion no pressure or influence has been exerted by any person upon the testatrix to execute the "Q How about the right eye?
will. "A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n., hearing of 23
March 1966).
 et seq., reinforces the contention of oppositors that the alleged testatrix could not see at normal reading distance: the
Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that Gliceria del signatures in the checks are written far above the printed base, lines, and the names of the payees as well as the
Rosario was provided with aphakic lenses and "had been under medical supervision up to 1963 with apparently good amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid
vision", the doctor had this to say:jgc:chanrobles.com.ph hand than hers.

"Q When yon said that she had apparently good vision you mean that she was able to read? Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant oppositors
"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report was made on contend, not unlike a blind testator, and the due execution of her will would have required observance of the provisions
pure recollections and I recall she was using her glasses although I recall also that we have to give her medicines to of Article 808 of the Civil Code.
improve her vision, some medicines to improve her identification some more.
x x x "ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is acknowledged."cralaw virtua1aw library
"Q What about the vision in the right eve, was that corrected by the glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will
"Q The vision in the right eye was corrected? himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so that he may be able to object if
"A Yes That is the vision for distant objects."cralaw virtua1aw library they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are
properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire,
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966). is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different
persons, and that the witnesses have to act within the range of his (the testator’s) other senses. 19
The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of
the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that notwithstanding the In connection with the will here in question, there is nothing in the records to show that the above requisites have been
operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due
her vision remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that execution.
with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December 1960,
Gliceria del Rosario was incapable f reading, and could not have read the provisions of the will supposedly signed by her
on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument "silently" We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the probate court of their
(t.s.n., pages 164-165). which is a conclusion and not a fact. petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the deceased
Doña Gliceria (Petition, G.R. No. L-26615, Annex "B").
Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D", acquires
striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were The oppositors’ petition was based allegedly on the existence in the special administratrix of an interest adverse to that
crammed together into a single sheet of paper, to much so that the words had to be written very close on the top, of the estate. It was their contention that through fraud her husband had caused the deceased Gliceria del Rosario to
bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &", execute a deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D.
apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doña Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon,
Gliceria. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for assessed at P334,050.00, for the sum of P30,000.00.
MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge’’, remained uncorrected, thereby
indicating that execution thereof must have been characterized by haste. It is difficult to understand that so important a In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition) reasoned out that
document containing the final disposition of one’s worldly possessions should be embodied in an informal and untidily since the properties were already sold no longer form part of the estate. The conflict of interest would not be between
written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the the estate and third parties, but among the different claimants of said properties, in which case, according to the court,
ability to read the purported will and had done so. The record is thus convincing that the supposed testatrix could not the participation of the special administratrix in the action for annulment that may be brought would not be necessary.
have physically read or understood the alleged testament, Exhibit "D", and that its admission to probate was erroneous
and should be reversed. The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity of the
conveyance or sale of the properties. In short, if proper, the action for annulment would have to be undertaken on behalf
That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks shortly of the estate by the special administratrix, affecting as it does the property or rights of the deceased. 20 For the rule is
prior to the alleged execution of the testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in no that only where there is no special proceeding for the settlement of the estate of the deceased may the legal heirs
way proves; that she was able to read a closely typed page, since the acts shown do not require vision at close range. It commence an action arising out of a right belonging to their ancestor. 21
must be remembered that with the natural lenses removed, her eyes had lost the power of adjustment to near vision,
the substituted glass lenses being rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G" to "G-3") There is no doubt that to settle the question of the due execution and validity of the deed of sale, an ordinary and
by her indicative of ability to see at normal reading distances. Writing or signing of one’s name, when sufficiently separate action would have to be instituted, the matter not falling within the competence of the probate court. 22
practiced, becomes automatic, so that one need only to have a rough indication of the place where the signature is to be Considering the facts then before it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario on 10
affixed in order to be able to write it. Indeed, a close examination of the checks, amplified in the photograph, Exhibit "O", January 1961, when she was already practically blind; and that the consideration of P30,000.00 seems to be
unconscionably small for properties with a total assessed value of P334,050.00, there was likelihood that a case for HON. LEONOR INES LUCIANO, ASSOCIATE JUSTICES, INTERMEDIATE APPELLATE COURT, FIRST DIVISION (CIVIL CASES), AND
annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the administratrix, being the widow BAYANI MA. RINO, RESPONDENTS.
and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out G.R. NO. 74695 | 1993-09-14
to belong to the estate. 22 Not only this, but the conduct of the special administratrix in securing new copies of the
owner’s duplicates of TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority, and on the pretext DECISION
that she needed them in the preparation of the inventory of the estate, when she must have already known by then that
the properties covered therein were already "conveyed" to her husband by the deceased, being the latter’s successor,
and having the contract bind the land through issuance of new titles in her husband’s name cannot but expose her to the BELLOSILLO, J.:
charge of unfitness or unsuitableness to discharge the trust, justifying her removal from the administration of the estate.
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate
With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the Hongkong and Shanghai Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta.
Bank to report all withdrawals made against the funds of the deceased after 2 September 1965 and (2) the motion for Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado.
annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he
The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken action on the disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time
complaint against the alleged withdrawals from the bank deposits of the deceased, because as of that time the court had awaiting probate before Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna.
not yet been apprised that such deposits exist. Furthermore, as explained by the special administratrix in her pleading of
30 October 1965, the withdrawals referred to by the oppositors could be those covered by checks issued in the name of As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the
Gliceria del Rosario during her lifetime but cleared only after her death. That explanation, which not only appears execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who
plausible but has not been rebutted by the petitioners-oppositors, negates any charge of grave abuse in connection with drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental
the issuance of the order here in question. witnesses and the notary public. The latter four followed the reading with their own respective copies previously
furnished them.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the pendency of
an action may be recorded in the office of the register of deeds of the province in which the property is situated, if the Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of
action affects "the title or the right of possession of (such) real property." 23 In the case at bar, the pending action which the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May
oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate
this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that case is concerned merely with the cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory
correctness of the denial by the probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the
special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in controversy there is simply the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental
fitness or unfitness of said special administratrix to continue holding the trust; it does not involve or affect at all the title witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.
to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case
(L-26615) is not an action that can properly be annotated in the record of the titles to the properties. A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private
respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in
FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of Gliceria A. del turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as
Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being meritorious, the appealed order is set required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its
aside and the court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one execution due to senility and old age; that the will was executed under duress, or influence of fear or threats; that it was
of the heirs intestate of the deceased Doña Gliceria Avelino del Rosario as special administrator for the purpose of procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion's share
instituting action on behalf of her estate to recover the properties allegedly sold by her to the late Alfonso D. Precilla. of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.
And in Case G.R. No. L-26864, petition is dismissed. No costs.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was
Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor, JJ., concur. issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the
deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto were
Zaldivar and Castro, JJ., took no part. executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the
deceased's last will and codicil should have been denied.
Barredo, J., is on leave
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido
IN THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF THE DECEASED BRIGIDO ALVARADO, CESAR Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading
ALVARADO, PETITIONER, VS. HON. RAMON G. GAVIOLA, JR., PRESIDING JUSTICE, HON. MA. ROSARIO QUETULIO LOSA AND requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with
each of the three instrumental witnesses and the notary public following the reading with their respective copies of the
instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was will and codicil did so conformably with his instructions. Hence, to consider his will as validly executed and entitled to
substantial compliance since its purpose of making known to the testator the contents of the drafted will was served. probate, it is essential that we ascertain whether Art. 808 had been complied with.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purposes of Art. 808 at the time his "Huling Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the
Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with? instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make
known to the incapacitated testator the contents of the document before signing and to give him an opportunity to
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the object if anything is contrary to his instructions.
will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason
of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was
specialist on 14 December 1977. the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to
the testator, and read them only once, not twice as Art. 808 requires.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808
which reads: Private respondent however insists that there was substantial compliance and that the single reading suffices for
purposes of the law. On the other hand, petitioner maintains that the only valid compliance is a strict compliance or
"Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing, witnesses, and again, compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the
by the notary public before whom the will is acknowledged." contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been disallowed.

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so We sustain private respondent's stand and necessarily, the petition must be denied.
considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the
trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has
Research Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the
was admitted by private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the
feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first testamentary privilege. 14
consultation. 8
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked,
day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the testator was that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place.
still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the
We agree with petitioner in this respect. execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in
Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence
codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of precisely for the purpose of securing his conformity to the draft. 15
his "poor," 10 "defective, " 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading
for him. Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public
and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician)
in Art. 808, to wit: asked the testator whether the contents of the documents were of his own free will. Brigido answered in the affirmative.
16 With four persons following the reading word for word with their own copies, it can be safely concluded that the
"The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his
himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider
are not in accordance with his wishes . . ." the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente)
and another (Potenciano C. Ranieses) being known to him since childhood.
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or
another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his
will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can The spirit behind the law was served though the letter was not. Although there should be strict compliance with the
be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be
Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's
will. 17
 properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of Alcantara, all of whom do not appear to be related to the testator. 2
Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The
the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were
should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose postponed for one reason or another. On May 29, 1980, the testator passed away before his petition could finally be
sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when heard by the probate court. 3On February 25, 1981, Benoni Cabrera, one of the legatees named in the will, sought his
an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was
more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded" (emphasis so appointed by the probate court in its order of March 6, 1981. 4
supplied).
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch
attached thereto. We are unwilling to cast these aside for the mere reason that a legal requirement intended for his IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition for
protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose intestate proceedings consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu
of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been and opposed thereat the probate of the testator's will and the appointment of a special administrator for his estate. 5
accomplished. To reiterate, substantial compliance suffices where the purpose has been served.
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an
AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate proceedings for the
Costs against petitioner. probate of the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually assigned
to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings. 6
SO ORDERED.
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to
Cruz, Chairman, Griño-Aquino, Davide, Jr. and Quiason, JJ., concur. the allowance of the testator's will on the ground that on the alleged date of its execution, the testator was already in a
poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as
to the genuineness of the signature of the testator therein. 7
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public, Atty. Filoteo Manigos, testified
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
that the testator executed the will in question in their presence while he was of sound and disposing mind and that,
REPRESENTED HEREIN BY HIS ATTORNEY-IN-FACT, ARMSTICIA * ABAPO VELANO, AND CONSESO CANEDA, REPRESENTED contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any
way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the
HEREIN BY HIS HEIRS, JESUS CANEDA, NATIVIDAD CANEDA AND ARTURO CANEDA, PETITIONERS, VS. HON. COURT OF presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing
as they had died by then. 8
APPEALS AND WILLIAM CABRERA, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MATEO CABALLERO, RESPONDENTS.
G.R. NO. 103554 | 1993-05-28
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the
DECISION late Mateo Caballero, on the ratiocination that:
REGALADO, J.:
". . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty.
Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed this Last Will and
attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Testament now marked Exhibit 'C' on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated
Article 805, in relation to Article 809, of the Civil Code. the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit 'D' clearly
underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would
The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the want the signature of Mateo Caballero in Exhibit 'C' examined by a handwriting expert of the NBI but it would seem that
twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit 'C', nothing came
witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his out of it because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as
lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will.1 It was witnesses for the oppositors.
declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal
"All told, it is the finding of this Court that Exhibit `C' is the Last Will and Testament of Mateo Caballero and that it was The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed
executed in accordance with all the requisites of law." 9 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
Undaunted by said judgment of the probate court, petitioners elevated the case to the Court of Appeals in CA-G.R. CV presence of the testator and of one another.
No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is
fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them."
the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and
of one another. In addition, the ordinary will must be acknowledged before a notary public by the testator and the attesting witnesses,
15 hence it is likewise known as a notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires that he
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the must personally read the will, if able to do so. Otherwise, he should designate two persons who will read the will and
attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus: communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is
"The question therefore is whether the attestation clause in question may be considered as having substantially complied acknowledged. 16
with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors claim to
be defective is `we do certify that the testament was read by him and the testator, Mateo Caballero, has published unto The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed
us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in by the hand of the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A
letters on the upper part of each page, as his Last Will and Testament, and he has signed the same and every page common requirement in both kinds of wills is that they should be in writing and must have been executed in a language
thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in or dialect known to the testator. 17
the presence of each and all of us' (emphasis supplied).
However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect
"To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said known to the testator since it does not form part of the testamentary disposition. Furthermore, the language used in the
will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the attestation clause likewise need not even be known to the attesting witnesses. 18 The last paragraph of Article 805
language of the law would have it that the testator signed the will 'in the presence of the instrumental witnesses, and merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.
that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.'
If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument
substantial compliance with the requirement of the law." 11 has been executed before them and to the manner of the execution of the same. 19 It is a separate memorandum or
record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact
Petitioners moved for the reconsideration of said ruling of respondent court, but the same was denied in the latter's that compliance with the essential formalities required by law has been observed. 20 It is made for the purpose of
resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of
upon said issue in a manner not in accord with the law and the settled jurisprudence on the matter and are now failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved. 21
questioning once more, on the same ground as that raised before respondent court, the validity of the attestation clause
in the last will of Mateo Caballero. Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the
will, 22 should state (1) the number of pages used upon which the will is written; (2) that the testator signed, or expressly
We find the present petition to be meritorious, as we shall shortly hereafter explain, after some prefatory observations caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that the
which we feel should be made in aid of the rationale for our resolution of the controversy. attesting witnesses witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed
the will and every page thereof in the presence of the testator and of one another.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard
kinds of wills which a testator may execute. 14 The first kind is the ordinary or attested will, the execution of which is against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the
governed by Articles 804 to 809 of the Code. Article 805 requires that: pages; 23 whereas the subscription of the signatures of the testator and the attesting witnesses is made for the purpose
of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator
"Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by and attested to by the witnesses. 24
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. Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied
in the attestation clause. 25 The attestation clause, therefore, provides strong legal guaranties for the due execution of a
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, will and to insure the authenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it need be
as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the will as it would be possible and
correlatively in letters placed on the upper part of each page. easy to add the clause on a subsequent occasion in the absence of the testator and the witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left
the execution of wills, in the following manner: hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in
"The underlying and fundamental objectives permeating the provisions on the law on wills in this Project consists in the the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must
liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase
last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue immediately follows the words "he has signed the same and every page thereof, on the spaces provided for his signature
and improper pressure and influence upon the testator. and on the left hand margin." What is then clearly lacking, in the final logical analysis, is the statement that the witnesses
signed the will and every page thereof in the presence of the testator and of one another.
"This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. . . ." 29
It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in
which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving
the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed the form of the will or the language used therein which would warrant the application of the substantial compliance rule,
in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on as contemplated in the pertinent provision thereon in the Civil Code, to wit:
the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting
witnesses thereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of reference: "Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that
"We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our the will was in fact executed and attested in substantial compliance with all the requirements of article 805" (Emphasis
respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO, has supplied.)
published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered
correlatively in letters on the upper part of each page, as his Last Will and Testament and he has signed the same and While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each
every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said page by the three, attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witnesses
testator and in the presence of each and all of us." affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly
observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that
It will be noted that Article 805 requires that the witnesses should both attest and subscribe to the will in the presence of the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will
the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is that act of the senses, is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various
while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it combinations, the will cannot be stamped with the imprimatur of effectivity. 33
was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a
paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of We believe that the following comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged caution
identification. 31 in the application of the substantial compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:
In Taboada vs. Rosal, 32 we clarified that attestation consists in witnessing the testator's execution of the will in order to
see and take note mentally that those things are done which the statute requires for the execution of a will and that the ". . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the
same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or
mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and
witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the whether all persons required to sign did so in the presence of each other must substantially appear in the attestation
attestation. clause, being the only check against perjury in the probate proceedings." (Emphasis ours.)

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of 3. We stress once more that under Article 809, the defects or imperfections must only be with respect to the form of the
the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be
attesting witnesses witnessed the testator sign the will and all its pages in their presence and that they, the witnesses, proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner
likewise signed the will and every page thereof in the presence of the testator and of each other. We agree. of proving the due execution and attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that
the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses
number of pages that were used, the same does not expressly state therein the circumstance that said witnesses signed each and every page of the will in the presence of the testator and of each other. 35 In such a situation, the defect
subscribed their respective signatures to the will in the presence of the testator and of each other. is not only in the form or the language of the attestation clause but the total absence of a specific element required by
Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the
present case since there is no plausible way by which we can read into the questioned attestation clause any statement, Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series of
or an implication thereof, that the attesting witnesses did actually bear witness to the signing by the testator of the will cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil.,
and all its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47
testator and of one another. Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate, the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
Furthermore, the rule on substantial compliance in Article 809 cannot be invoked or relied on by respondents since it
presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration
"In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that the
of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective,
may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually
and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and
complied with in the execution of the will. In other words, the defects must be remedied by intrinsic evidence suppliedAguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held
by the will itself. that the attestation clause must state the fact that the testator and the witnesses reciprocally saw the signing of the will,
for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also held that the fact
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be that the testator and the witnesses signed each and every page of the will can be proved also by the mere examination of
supplied only by extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis the signatures appearing on the document itself, and the omission to state such evident facts does not invalidate the will.
whatsoever from which such facts may be plausibly deduced. What private respondent insists on are the testimonies of
his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of "It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here,
the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by unless aided by casuistry of the extreme type, it would be impossible to reconcile the Mojal and Quintana decisions. They
indirection what in law he cannot do directly. are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of "In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal
interpretation should be followed in resolving issues centering on compliance with the legal formalities required in the decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions;
execution of wills. The formal requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the
of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting said formalities found second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated in
in Act No. 190 and the amendment thereto were practically reproduced and adopted in the Civil Code. December 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable provisions of the law.
One view advanced the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs.
Abangan, 36 where it was held that the object of the solemnities surrounding the execution of wills is to close the door "The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of
against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. the Code of Civil Procedure, as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in
Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. Nonetheless, it part provided in section 61, as amended that 'No will . . . shall be valid . . . unless . . . .' It is further provided in the same
was also emphasized that one must not lose sight of the fact that it is not the object of the law to restrain and curtail the section that `The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact
exercise of the right to make a will, hence when an interpretation already given assures such ends, any other that the testator signed the will and every page thereof, or caused some other person to write his name, under his
interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless and frustrative express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in
of the testator's last will, must be disregarded. The subsequent cases of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson the presence of the testator and of each other.' Codal section 634 provides that 'The will shall be disallowed in either of
vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al., 42 all adhered to the following cases: 1. If not executed and attested as in this Act provided.' The law not alone carefully makes use of the
this position. imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the
province of the courts to disregard the legislative purpose so emphatically and clearly expressed.
The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the
execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the "We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the
Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and decision in the case of Nayve vs. Mojal and Aguilar, supra." (Emphases in the original text).
Sano vs. Quintana. 47
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the the seeming diversity of view that was earlier threshed out therein. The cases of Quinto vs. Morata, 49 Rodriguez vs.
aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the Alcala, 50 Echevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as restated in Gumban.
will and each and every page thereof on the left margin in the presence of the testator. The will in question was But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56
disallowed, with these reasons therefor: Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule and
"In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this established a trend toward an application of the liberal view.
court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil. 405), and In re Estate of Neumark ([1923], 46
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE S. LOPEZ,
construction, recommended the codification of the substantial compliance rule, as it believed this rule to be in accord RICHARD B. LOPEZ, petitioner, vs. DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, respondents
with the modern tendency to give a liberal approach to the interpretation of wills. Said rule thus became what is now November 12, 2012
Article 809 of the Civil Code, with this explanation of the Code Commission:
RESOLUTION
"The present law provides for only one form of executing a will, and that is, in accordance with the formalities prescribed
by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had PERLAS-BERNABE, J.
previously upheld the strict compliance with the legal formalities and had even said that the provisions of Section 618 of
the Code of Civil Procedure, as amended regarding the contents of the attestation clause were mandatory, and non- This Petition for Review on Certiorari assails the March 30, 2009 Decision 1 and October 22, 2009 Resolution2 of
compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the the Court of Appeals (CA) in CA-
freedom of the testator in disposing of his property. G.R. CV No. 87064 which atlirmed the August 26, 2005 Decision3 of the Regional Trial Court of Manila,
Branch 42 (RTC), in SP. Proc. No. 99-
"However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of 95225 disallowing the probate of the Last Will and Testament of Enrique S. I ,opez.
the formalities in the execution of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and The Factual Antecedents
Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and their four legitimate children,
"In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of Section namely, petitioner Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth de Leon
618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a (Marybeth) and Victoria L. Tuazon (Victoria) as compulsory heirs. Before Enrique's death, he executed a Last Will
legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner of and Testament4 on August 10, 1996 and constituted Richard as his executor and administrator.
executing wills, article 829 of the Project is recommended, which reads:
On September 27, 1999, Richard filed a petition for the probate of his father's Last Will and Testament before the RTC of
'ART. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and Manila with prayer for the issuance of letters testamentary in his favor. Marybeth opposed the petition contending that
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the purported last will and testament was not executed and attested as required by law, and that it was procured by
the will was in fact executed and attested in substantial compliance with all the requirements of article 829.'" 65 undue and improper pressure and influence on the part of Richard. The said opposition was also adopted by Victoria.

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty, nor does it open
the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire results."
After submitting proofs of compliance with jurisdictional requirements, Richard presented the attesting witnesses,
namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary public who notarized
the will, Atty. Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses testified that after the late Enrique read
and signed the will on each and every page, they also read and signed the same in the latter's presence and of one
another. Photographs of the incident were taken and presented during trial. Manalo further testified that she was
the one who prepared the drafts and revisions from Enrique before the final copy of the will was made.

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will
itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence
aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and
SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for
the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the
Matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of
the estate of the said decedent.
Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. Prior to August 10, 1996, the
latter consulted him in the preparation of the subject will and furnished him the list of his properties for distribution
among his children. He prepared the will in accordance with Enrique's instruction and that before the latter and the
attesting witnesses signed it in the presence of one another, he translated the will which was written in English to Filipino
and added that Enrique was in good health and of sound mind at that time.
On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon (Paraon), Officer-in-Charge of the
Notarial Section, Office of the Clerk of Court, RTC, Manila. His testimony centered mainly on their findings that Atty.
Nolasco was not a notary public for the City of Manila in 1996, which on cross examination was clarified after Paraon
discovered that Atty. Nolasco was commissioned as such for the years 1994 to 1997.

SO ORDERED. Ruling of the RTC

Lopez vs Lopez In the Decision dated August 26, 2005,5 the RTC disallowed the probate of the will for failure to comply with Article 805
of the Civil Code which requires a statement in the attestation clause of the number of pages used upon which the will is
written. It held that while Article 809 of the same Code requires mere substantial compliance of the form laid down
in Article 805 thereof, the rule only applies if the number of pages is reflected somewhere else in the will with no The law is clear that the attestation must state the number of pages used upon which the will is written. The purpose of
evidence aliunde or extrinsic evidence required. While the acknowledgment portion stated that the will consists of the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or
7 pages including the page on which the ratification and acknowledgment are written, the RTC observed that it has 8 decrease in the pages.9
pages including the acknowledgment portion. As such, it disallowed the will for not having been executed and attested
in accordance with law. While Article 809 allows substantial compliance for defects in the form of the attestation clause, Richard likewise failed in
this respect. The statement in the Acknowledgment portion of the subject last will and testament that it "consist of 7
Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated October 26, 2005.6 pages including the page on which the ratification and acknowledgement are written"10 cannot be deemed substantial
compliance. The will actually consists of 8 pages including its acknowledgement which discrepancy cannot be explained
Ruling of the Court of Appeals by mere examination of the will itself but through the presentation of evidence aliunde.11 On this score is the comment
of Justice J.B.L Reyes regarding the application of Article 809, to wit:
On March 30, 2009, 7 the CA issued the assailed decision dismissing the appeal. It held that the RTC erroneously granted
Richard's appeal as the Rules of Court is explicit that appeals in special proceedings, as in this case, must be made x x x The rule must be limited to disregarding those defects that can be supplied by an examination of
through a record on appeal. Nevertheless, even on the merits, the CA found no valid reason to deviate from the findings the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
of the RTC that the failure to state the number of pages of the will in the attestation clause was fatal. It noted that while each and every page; whether the subscribing witnesses are three or
Article 809 of the Civil Code sanctions mere substantial compliance with the formal requirements set forth in Article the will was notarized. All these are facts that the will itself
805 thereof, there was a total omission of such fact in the attestation clause. Moreover, while the acknowledgment of can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. B
the will made mention of "7 pages including the page on which the ratification and acknowledgment are written," the ut the total number t~{pages, and whether all persons required to sign did so in the presence of
will had actually 8 pages including the acknowledgment portion thus, necessitating the presentation of evidence aliunde each other must substantially appear in the •attestation clause, being the only check against perjwy in the probate
to explain the discrepancy. Richard's motion for reconsideration from the decision was likewise denied in the second proceedings. 12 (Emphasis supplied)
assailed Resolution8 dated October 22, 2009.
Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly ruled that Richard pursued the
Hence, the instant petition assailing the propriety of the CA's decision. wrong mode of appeal as Section 2(a), Rule 41 of the Rules of
Couti explicitly provides that in special proceedings, as in this case, the appeal shall be made by
Ruling of the Court record on appeal.

The petition lacks merit. WHEREFORE, premises considered, the petition is DENIED.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil Code provide: SO ORDERED.

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 GERMAN JABONETA, PLAINTIFF-APPELLANT, VS. RICARDO GUSTILO, ET AL., DEFENDANTS-APPELLEES.
subscribed by three or more credible witnesses in the presence of the testator and of one another. G.R. NO. 1641 | 1906-01-19

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, DECISION
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.
CARSON, J.:
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 In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because the lower
presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses, did not
the presence of the testator and of one another. attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as required by the provisions of
section 618 of the Code of Civil Procedure.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (underscoring
supplied) The following is a copy of the evidence which appears of record on this particular point, being a part of the testimony of
the said Isabelo Jena:
ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that "Q. Who first signed the will?
the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. "A. I signed it first, and afterwards Aniceto and the others.
"Q. Who were those others to whom you have just referred?
"A. After the witness Aniceto signed the will I left the house, because I was in a hurry, and at the moment when I was
leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en actitud de firmar). I believe he signed,
because he was at the table. . . .
"Q. State positively whether Julio Javellana did or did not sign as a witness to the will.
"A. I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in his hand, in position ready
to sign. I believe he signed.
"Q. Why do you believe Julio Javellana signed?
"A. Because he had the pen in his hand, which was resting on the paper, though I did not actually see him sign.
"Q. Explain this contradictory statement.
"A. After I signed I asked permission to leave, because I was in a hurry, and while I was leaving Julio had already taken the
pen in his hand, as it appeared, for the purpose of signing, and when I was near the door I happened to turn my face and
I saw that he had his hand with the pen resting on the will, moving it as if for the purpose of signing.
"Q. State positively whether Julio moved his hand with the pen as if for the purpose of signing, or whether he was
signing.
"A. I believe he was signing."
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if it witnesses are together for the purpose of
witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do so; and there
are many cases which law down the rule that the true test of vision is not whether the testator actually saw the witness
sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of
the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between the testator and the witnesses are equally
applicable in determining whether the witnesses signed the instrument in the presence of each other, as required by the
statute, and applying them to the facts proven in these proceedings we are of opinion that the statutory requisites as to
the execution of the instrument were complied with, and that the lower court erred in denying probate to the will on the
ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in these proceedings was satisfactorily
proven to be the last will and testament of Macario Jaboneta, deceased, and that it should therefore be admitted to
probate.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the parties to The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the record will
the proceedings, but the court, nevertheless, found the following facts: be returned to the court from whence it came, where the proper orders will be entered in conformance herewith. So
ordered
"On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the document in
question, which has been presented for probate as his will:

"Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question be written,
and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said document as his will. They
were all together, and were in the room where Jaboneta was, and were present when he signed the document, Isabelo
Jena signing afterwards as a witness, at his request, and in his presence and in the presence of the other two witnesses.
Aniceto Jalbuena then signed as a witness to the presence of the testator, and in the presence of the other two persons
who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As he
was leaving the house Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but
did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio Javellana signed
as a witness in the presence of the testator and of the witness Aniceto Jalbuena."

We can not agree with so much of the above findings of facts as holds that the signature of Javellana was not signed in
the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure. The fact that Jena
was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken
together with the testimony of the remaining witnesses, which shows that Javellana did in fact there and then sign his
name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in the act of
leaving, and that his back was turned while a portion of the name of the witness was being written, is of no importance.
He, with the other witnesses and the testator, has assembled for the purpose of execution the testament, and were
together in the same room for that purpose, and at the moment when the witness Javellana signed the document he was
actually and physically present and in such position with relation to Javellana that he could see everything which took
place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so,
therefore we are of opinion that the document was in fact signed before he finally left the room.

"The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the
testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599,
and cases there cited.)"