Republic of the Philippines
98–90870 because testate proceedings take precedence and enjoy
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO
D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D.
SEANGIO, Respondents.
DECISION
AZCUNA, J.:
1
This is a petition for certiorari with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the nullification
of the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial
Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the
ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870
and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate Estate of
Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate
of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and
Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–
90870 of the RTC, and praying for the appointment of private respondent Elisa D.
Seangio–Santos as special administrator and guardian ad litem of petitioner Dy
Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command
of her faculties; 2) the deceased Segundo executed a general power of attorney in
favor of Virginia giving her the power to manage and exercise control and
supervision over his business in the Philippines; 3) Virginia is the most competent
and qualified to serve as the administrator of the estate of Segundo because she is
a certified public accountant; and, 4) Segundo left a holographic will, dated
September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio,
for cause. In view of the purported holographic will, petitioners averred that in the
event the decedent is found to have left a will, the intestate proceedings are to be
automatically suspended and replaced by the proceedings for the probate of the
will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo,
docketed as SP. Proc. No. 99–93396, was filed by petitioners before the RTC. They
likewise reiterated that the probate proceedings should take precedence over SP.
Proc. No.
2
priority over intestate proceedings.
The document that petitioners refer to as Segundo’s holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at
hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si
Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng
sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong
kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit
daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito
ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China
Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga
custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si
Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan
kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi
ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng
3
tatlong saksi.
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc.
4
No. 99–93396 were consolidated.
On July 1, 1999, private respondents moved for the dismissal of the probate
5
proceedings primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the
Civil Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all
other compulsory heirs were not named nor instituted as heir, devisee or legatee,
hence, there is preterition which would result to intestacy. Such being the case,
private respondents maintained that while procedurally the court is called upon to
rule only on the extrinsic validity of the will, it is not barred from delving into the
intrinsic validity of the same, and ordering the dismissal of the petition for probate
when on the face of the will it is clear that it contains no testamentary disposition
of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1)
generally, the authority of the probate court is limited only to a determination of
the extrinsic validity of the will; 2) private respondents question the intrinsic and
not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the
estate of a decedent; and, 4) the rule on preterition does not apply because
Segundo’s will does not constitute a universal heir or heirs to the exclusion of one
6
or more compulsory heirs.
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng
Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned
thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the
New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is
concerned, Article 854 does not apply, she not being a compulsory heir in the direct
line.
As such, this Court is bound to dismiss this petition, for to do otherwise would
amount to an abuse of discretion. The Supreme Court in the case of Acain v.
Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear:
"for … respondents to have tolerated the probate of the will and allowed the case
to progress when, on its face, the will appears to be intrinsically void … would have
been an exercise in futility. It would have meant a waste of time, effort, expense,
plus added futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special Proceedings No. 99–93396 is hereby DISMISSED
without pronouncement as to costs.
7
SO ORDERED.
Petitioners’ motion for reconsideration was denied by the RTC in its order dated
October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN
ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER
1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:
I preterition, private respondents did not raise any issue as regards the authenticity
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF
RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE
CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE
TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION,
WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT
IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY
TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATOR’S TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY
TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS
INDUBITABLE FROM THE FACE OF THE TESTATOR’S WILL THAT NO PRETERITON
EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID;
AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE
INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules
of Court which respectively mandate the court to: a) fix the time and place for
proving the will when all concerned may appear to contest the allowance thereof,
and cause notice of such time and place to be published three weeks successively
previous to the appointed time in a newspaper of general circulation; and, b) cause
the mailing of said notice to the heirs, legatees and devisees of the testator
Segundo;
Second, the holographic will does not contain any institution of an heir, but rather,
as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a
disinheritance of a compulsory heir. Thus, there is no preterition in the decedent’s
will and the holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate. None of
the compulsory heirs in the direct line of Segundo were preterited in the
holographic will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is
both intrinsically and extrinsically valid, respondent judge was mandated to
proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice
to petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was
dated, signed and written by him in his own handwriting. Except on the ground of
of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundo’s intention of excluding his eldest son, Alfredo, as an heir to his estate for
the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same
must be effected through a will wherein the legal cause therefor shall be specified.
With regard to the reasons for the disinheritance that were stated by Segundo in
his document, the Court believes that the incidents, taken as a whole, can be
considered a form of maltreatment of Segundo by his son, Alfredo, and that the
matter presents a sufficient cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children
and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life
of the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with
the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who
disinherit such child or descendant;
8 17
(6) Maltreatment of the testator by word or deed, by the child or descendant;
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by
Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed.
Segundo’s document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose
mortis causa[9] can be clearly deduced from the terms of the instrument, and while
it does not make an affirmative disposition of the latter’s property, the
disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other
words, the disinheritance results in the disposition of the property of the testator
10
Segundo in favor of those who would succeed in the absence of Alfredo.
Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized
as the supreme law in succession. All rules of construction are designed to ascertain
and give effect to that intention. It is only when the intention of the testator is
11
contrary to law, morals, or public policy that it cannot be given effect.
Holographic wills, therefore, being usually prepared by one who is not learned in
the law, as illustrated in the present case, should be construed more liberally than
the ones drawn by an expert, taking into account the circumstances surrounding
12
the execution of the instrument and the intention of the testator. In this regard,
the Court is convinced that the document, even if captioned as Kasulatan ng Pag-
Aalis ng Mana, was intended by Segundo to be his last testamentary act and was
executed by him in accordance with law in the form of a holographic will. Unless the
13 14
will is probated, the disinheritance cannot be given effect.
15
With regard to the issue on preterition, the Court believes that the compulsory
heirs in the direct line were not preterited in the will. It was, in the Court’s opinion,
Segundo’s last expression to bequeath his estate to all his compulsory heirs, with
16
the sole exception of Alfredo. Also, Segundo did not institute an heir to the
exclusion of his other compulsory heirs. The mere mention of the name of one of
the petitioners, Virginia, in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo.1âwphi1
Considering that the questioned document is Segundo’s holographic will, and that
the law favors testacy over intestacy, the probate of the will cannot be dispensed
with. Article 838 of the Civil Code provides that no will shall pass either real or
personal property unless it is proved and allowed in accordance with the Rules of
Court. Thus, unless the will is probated, the right of a person to dispose of his
property may be rendered nugatory.
In view of the foregoing, the trial court, therefore, should have allowed the
holographic will to be probated. It is settled that testate proceedings for the
settlement of the estate of the decedent take precedence over intestate
18
proceedings for the same purpose.
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP.
Proc. No. 98-90870 is hereby suspended until the termination of the aforesaid
testate proceedings.
No costs.
SO ORDERED.
LETICIA VALMONTE ORTEGA versus JOSEFINA C. VALMONTE,
DECISION
PANGANIBAN, J.:
T he 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
issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case
[4]
be remanded to the court a quo for further and concomitant proceedings.”
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;
th
IN WITNESS WHEREOF, I have hereunto set my hand this 15 day of June 1983 in
Quezon City, Philippines.’
“The allowance to probate of this will was opposed by Leticia on the grounds that:
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 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 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 returned on the appointed date but the notary public was out of town
so they were instructed by his wife to come back on August 9, 1983, and which they
did. Before the testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano, a dialect which
the testator spoke and understood. He 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, 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 capable at the time he affixed his signature on the will.
“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
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 but were
asked to come back instead on August 9, 1983 because of the absence of the notary
public; that the testator executed the will in question in their presence while he was
of sound and disposing mind and that he was strong and in good health; that the
contents of the will was explained by the notary public in the Ilocano and Tagalog
dialect and that 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 oppositor Leticia declared that Josefina should not inherit alone because aside
from her there are other children 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 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 deterioration, aberrations and senility. This
was corroborated by her daughter Mary Jane Ortega for whom Placido took a fancy
and wanted to marry.
“Sifting through the evidence, the court a quo held that [t]he evidence adduced,
reduces the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution and
attestation of the will; and
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
“It then found these grounds extant and proven, and accordingly disallowed
probate.”[5]
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of Placido
Valmonte to probate. The CA upheld the credibility of the notary public and the
subscribing witnesses who had acknowledged the due execution of the will.
Moreover, it held that the testator had testamentary capacity at the time of the
execution of the will. It added that his “sexual exhibitionism and unhygienic, crude
and impolite ways”[6] did not make him a person of unsound mind.
Hence, this Petition.[7]
Issues
Petitioner raises the following issues for our consideration:
“I.
Whether or not the findings of the probate court are entitled to great respect.
“II.
Whether or not the signature of Placido Valmonte in the subject will was procured
by fraud or trickery, and that Placido Valmonte never intended that the instrument
should be his last will and testament.
“III.
Whether or not Placido Valmonte has testamentary capacity at the time he
allegedly executed the subject will.”[8]
In short, petitioner assails the CA’s allowance of the probate of the will of Placido
Valmonte.
This Court’s Ruling
The Petition has no merit.
Main Issue:
Probate of a 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 the Rules of Court. As an exception, however,
the evidence presented during the trial may be examined and the factual matters
resolved by this Court when, as in the instant case, the findings of fact of the
appellate court differ from those of the trial court.[9]
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]
Verily, Article 839 of the Civil Code states the instances when a will may be
disallowed, as follows:
“Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will,
at the time of its execution;
(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 person;
(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 affixing his signature thereto.”
In the present case, petitioner assails the validity of Placido Valmonte’s will by
imputing fraud in its execution and challenging the testator’s state of mind at the
time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the
execution of the will, but maintains that the circumstances surrounding it are
indicative of the existence of fraud. Particularly, she alleges that respondent, who is
the testator’s wife and sole beneficiary, conspired with the notary public and the
three attesting witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of the will.
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 supposedly “defies human reason, logic and common experience”[12]
for an old man with a severe psychological condition to have willingly signed a last
will and testament.
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 executes, or it may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a certain will which, but for
the fraud, he would not have made.”[13]
We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution.[14] The burden to show otherwise
shifts to the proponent of the will only upon a showing of credible evidence of
fraud.[15] Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will.[16] That the 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 who had taken “the cudgels of taking care of *the
testator+ in his twilight years.”[17]
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 acknowledged on the same
occasion.”[18] More important, the will must be subscribed by the testator, as well
as by three or more credible witnesses who must also attest to it in the presence of
the testator and of one another.[19] Furthermore, the testator and the witnesses
must acknowledge the will before a notary public.[20] In any event, we agree with
the CA that “the variance in the dates of the will as to its supposed execution and
attestation was satisfactorily and persuasively explained by the notary public and
the instrumental witnesses.”[21]
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:
“Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15 when the
testator and his witnesses were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your house?
A They did as of agreement but unfortunately, I was out of town.
xxx xxx xxx
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when the document
was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses affixed their
respective signature on the first and second pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
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?
A Because I do not like anymore to make some alterations so I put it in my own
handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15, 1983,
whereas in the acknowledgement it is dated August 9, 1983, will you look at this
document and tell us this discrepancy in the date?
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
th
15 of June but when we returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go
back?
th
A We returned on the 9 of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed, who were
your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-
8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
xxx xxx xxx
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 Atty. Sarmiento and Placido Valmonte
about the last will and testament. After that what they have talked what will be
placed in the testament, what Atty. Sarmiento said was that he will go back on the
th
15 of June. When we returned on 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 there on
August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp.
4-6)
Josie Collado:
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.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)”[22]
Notably, petitioner failed to substantiate her claim of a “grand conspiracy” in the
commission of a fraud. There was no 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 it and the finding that it was executed in
accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.[24]
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives
the following guidelines:
“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 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.
Republic of the Philippines
SUPREME COURT
Manila
G.R. No. 122880 April 12, 2006
FELIX AZUELA,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO,
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court
is provided the opportunity to assert a few important doctrinal rules in the
execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil
Code.
A will whose attestation clause does not contain the number of pages on which
the will is written is fatally defective. A will whose attestation clause is not signed
by the instrumental witnesses is fatally defective. And perhaps most importantly,
a will which does not contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny probate. A notarial will
with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a notarial will.
Full and faithful compliance with all the detailed requisites under Article 805 of the
Code leave little room for doubt as to the validity in the due execution of the
notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills — that they be acknowledged before a notary public by the testator
and the witnesses. A notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional
Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10
June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in
full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko
lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong
sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya
at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking Doc. No. 1232 ; NOTARIO PUBLIKO
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, Page No. 86 ; Until Dec. 31, 1981
yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Book No. 43 ; PTR-152041-1/2/81-Manila
1
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na Series of 1981 TAN # 1437-977-8
nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten The three named witnesses to the will affixed their signatures on the left-hand
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at margin of both pages of the will, but not at the bottom of the attestation clause.
lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela The probate petition adverted to only two (2) heirs, legatees and devisees of the
at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones; decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling to have resided abroad. Petitioner prayed that the will be allowed, and that letters
habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng testamentary be issued to the designated executor, Vart Prague.
piyansiya. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
2
(Sgd.) decedent. Geralda Castillo claimed that the will is a forgery, and that the true
EUGENIA E. IGSOLO purpose of its emergence was so it could be utilized as a defense in several court
(Tagapagmana) cases filed by oppositor against petitioner, particularly for forcible entry and
PATUNAY NG MGA SAKSI usurpation of real property, all centering on petitioner’s right to occupy the
3
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na properties of the decedent. It also asserted that contrary to the representations of
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng grandchildren, who were then residing abroad. Per records, it was subsequently
4
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, and
lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother
5
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng by three (3) months.
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito. Oppositor Geralda Castillo also argued that the will was not executed and attested
EUGENIA E. IGSOLO to in accordance with law. She pointed out that decedent’s signature did not appear
address: 500 San Diego St. on the second page of the will, and the will was not properly acknowledged. These
Sampaloc, Manila Res. Cert. No. A-7717-37 twin arguments are among the central matters to this petition.
Issued at Manila on March 10, 1981. After due trial, the RTC admitted the will to probate, in an Order dated 10 August
6
QUIRINO AGRAVA 1992. The RTC favorably took into account the testimony of the three (3) witnesses
address: 1228-Int. 3, Kahilum to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also
Pandacan, Manila Res. Cert. No. A-458365 called to fore "the modern tendency in respect to the formalities in the execution of
Issued at Manila on Jan. 21, 1981 a will x x x with the end in view of giving the testator more freedom in expressing
7
LAMBERTO C. LEAÑO his last wishes;" and from this perspective, rebutted oppositor’s arguments that
address: Avenue 2, Blcok 7, the will was not properly executed and attested to in accordance with law.
Lot 61, San Gabriel, G.MA., Cavite Res. After a careful examination of the will and consideration of the testimonies of the
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 subscribing and attesting witnesses, and having in mind the modern tendency in
JUANITO ESTRERA respect to the formalities in the execution of a will, i.e., the liberalization of the
address: City Court Compound, interpretation of the law on the formal requirements of a will with the end in view
City of Manila Res. Cert. No. A574829 of giving the testator more freedom in expressing his last wishes, this Court is
Issued at Manila on March 2, 1981. persuaded to rule that the will in question is authentic and had been executed by
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng the testatrix in accordance with law.
Maynila. On the issue of lack of acknowledgement, this Court has noted that at the end of
(Sgd.) the will after the signature of the testatrix, the following statement is made under
PETRONIO Y. BAUTISTA the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng
lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial compliance with
the requirements of the law.
On the oppositor’s contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of the
will containing the attestation clause and acknowledgment, instead of at the
bottom thereof, substantially satisfies the purpose of identification and attestation
of the will.
With regard to the oppositor’s argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the attestation
did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of a
serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which contains
only the last portion of the attestation clause and acknowledgment is not a fatal
defect.
As regards the oppositor’s assertion that the signature of the testatrix on the will is
a forgery, the testimonies of the three subscribing witnesses to the will are
convincing enough to establish the genuineness of the signature of the testatrix and
8
the due execution of the will.
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
9
dismissal of the petition for probate. The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
10
rendering the will void and undeserving of probate.
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the
number of pages used in a notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to what he termed as "the
11
substantial compliance rule."
The solution to this case calls for the application of Articles 805 and 806 of the Civil
Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed and signed the will and
all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of
the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number
12
of pages of the will. There was an incomplete attempt to comply with this
requisite, a space having been allotted for the insertion of the number of pages in
the attestation clause. Yet the blank was never filled in; hence, the requisite was
left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the
13 14
process Uy Coque v. Navas L. Sioca and In re: Will of Andrada. In Uy Coque, the
Court noted that among the defects of the will in question was the failure of the
15
attestation clause to state the number of pages contained in the will. In ruling that
the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The purpose of requiring
the number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will and in the absence of
a statement of the total number of sheets such removal might be effected by
taking out the sheet and changing the numbers at the top of the following sheets
or pages. If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the inserting of new
pages and the forging of the signatures of the testator and witnesses in the margin,
16
a matter attended with much greater difficulty."
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
17
pointed out in the attesting clause is fatal." 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
18
this requirement, it must be considered material."
19
Against these cited cases, petitioner cites Singson v. Florentino and Taboada v.
20
Hon. Rosal, wherein the Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the number of pages of the
will. Yet the appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and which we
adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson
versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if
the attestation does not contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of "Manuel Singson
versus Emilia Florentino, et al., supra," although the attestation in the subject Will
did not state the number of pages used in the will, however, the same was found in
the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the will is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of
these cases seems to be that the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration or examination of the will
itself. But here the situation is different. While the attestation clause does not state
the number of sheets or pages upon which the will is written, however, the last part
of the body of the will contains a statement that it is composed of eight pages,
which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations." (page 165-165, supra) (Underscoring
supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have been a
fatal defect were it not for the fact that, in this case, it is discernible from the entire
will that it is really and actually composed of only two pages duly signed by the
testatrix and her instrumental witnesses. As earlier stated, the first page which
contains the entirety of the testamentary dispositions is signed by the testatrix at
the end or at the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the attestation clause
and the acknowledgment. The acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page" (pages 200-201, supra)
(Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated
in any part of the Will. The will does not even contain any notarial acknowledgment
21
wherein the number of pages of the will should be stated.
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code
in 1950, at a time when the statutory provision governing the formal requirement
of wills was Section
22
618 of the Code of Civil Procedure. Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages of
23
the will is extant from Section 618. However, the enactment of the Civil Code in
1950 did put in force a rule of interpretation of the requirements of wills, at least
insofar as the attestation clause is concerned, that may vary from the philosophy
that governed these two cases. Article 809 of the Civil Code states: "In the absence
of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that "the underlying and fundamental objective permeating the provisions
on the [law] on [wills] in this project consists in the [liberalization] of the manner of
their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern tendency]
24
in respect to the formalities in the execution of wills." However, petitioner
conveniently omits the qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such liberalization be "but with
sufficient safeguards and restrictions to prevent the commission of fraud and the
25
exercise of undue and improper pressure and influence upon the testator."
26
Caneda v. Court of Appeals features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation
27
clause in wills. Uy Coque and Andrada are cited therein, along with several other
 28
cases, as examples of the application of the rule of strict construction. However,
the Code Commission opted to recommend a more liberal construction through the
"substantial compliance rule" under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by
an examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself
can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate
29
proceedings. (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded. In
Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to
30
the will in the presence of the testator and of each other, the other omission cited
by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the
31
invalidation of the attestation clause and ultimately, of the will itself." Thus, a
failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one another’s
presence should be considered a fatal flaw since the attestation is the only textual
32
guarantee of compliance.
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
33
to prevent any increase or decrease in the pages. The failure to state the number
of pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial
compliance with this requirement if the will states elsewhere in it how many pages
it is comprised of, as was the situation in Singson and Taboada. However, in this
case, there could have been no substantial compliance with the requirements
under Article 805 since there is no statement in the attestation clause or anywhere
in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the inclinations of
the members of the Code Commission in incorporating Article 805, the fact remains
that they saw fit to prescribe substantially the same formal requisites as
enumerated in Section 618 of the Code of Civil Procedure, convinced that these
34
remained effective safeguards against the forgery or intercalation of notarial wills.
Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to
35
convey property post mortem in the manner established in the will. The
transcendent legislative intent, even as expressed in the cited comments of the
Code Commission, is for the fruition of the testator’s incontestable desires, and
not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses.
While the signatures of the instrumental witnesses appear on the left-hand margin
of the will, they do not appear at the bottom of the attestation clause which after
all consists of their averments before the notary public.
36
Cagro v. Cagro is material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left-hand
37 38
margin." While three (3) Justices considered the signature requirement had
been substantially complied with, a majority of six (6), speaking through Chief
Justice Paras, ruled that the attestation clause had not been duly signed, rendering
the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the
will" required by law to be made by the attesting witnesses, and it must necessarily
bear their signatures. An unsigned attestation clause cannot be considered as an act
of the witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the
left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures are
in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at
the bottom thereof, be admitted as sufficient, it would be easy to add such clause
to a will on a subsequent occasion and in the absence of the testator and any or all
39
of the witnesses.
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the
will, from the requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these two classes of
signature are distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin
of the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in the clause, since the signatures that
do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed
the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses’
signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the will is written;
the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806
in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
40
ng Maynila." By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his act or
41
deed. It involves an extra step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to by
42
the executor. Ordinarily, the language of the jurat should avow that the document
was subscribed and sworn before the notary public, while in this case, the notary
public averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed and sworn to. The will does
not present any textual proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free act or deed.
The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the
43
testator. An acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of
perjury, thus allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she had
designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary public
by the testator and the witnesses is fatally defective, even if it is subscribed and
sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied
by the will in question. We need not discuss them at length, as they are no longer
material to the
disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left margin,
except the last; and that all the pages shall be numbered correlatively in letters
placed on the upper part of each page. In this case, the decedent, unlike the
witnesses, failed to sign both pages of the will on the left margin, her only signature
44
appearing at the so-called "logical end" 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
45
these two requirements be construed as mandatory. Taken in isolation, these
omissions, by themselves, may not be sufficient to deny probate to a will. Yet even
as these omissions are not decisive to the adjudication of this case, they need not
be dwelt on, though indicative as they may be of a general lack of due regard for
the requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes
the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
SUPREME COURT
Manila
FIRST DIVISION
A.C. No. 5281 February 12, 2008
MANUEL L. LEE, petitioner,
vs.
ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the
ethics of the legal profession for notarizing a spurious last will and testament.
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 witnesses to
its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife
Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and
Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before respondent on June
1 2
30, 1965. Complainant, however, pointed out that the residence certificate of the
3
testator noted in the acknowledgment of the will was dated January 5, 1962.
Furthermore, the signature of the testator was not the same as his signature as
4
donor in a deed of donation (containing his purported genuine signature).
Complainant averred that the signatures of his deceased father in the will and in the
deed of donation were "in any way (sic) entirely and diametrically opposed from
5
(sic) one another in all angle[s]."
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’ affidavits.
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 certification of
the chief of the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by
6
BARTOLOME RAMIREZ on June 30, 1965 and is available in this Office*’s+ files.
Respondent in his comment dated July 6, 2001 claimed that the complaint against
him contained false allegations: (1) that complainant was a son of the decedent
Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged
that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and
7
testament was validly executed and actually notarized by respondent per affidavit
of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the
8
joint affidavit of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente
9
N. Lee, Jr. xxx."
Respondent further stated that the complaint was filed simply to harass him
because the criminal case filed by complainant against him in the Office of the
Ombudsman "did not prosper."
Respondent did not dispute complainant’s contention that no copy of the will was
on file in the archives division of the NCCA. He claimed that no copy of the
contested will could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action
against him as he (complainant) did not first file an action for the declaration of
nullity of the will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
10
recommendation.
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, particularly Canon
11 12 13
1 and Rule 1.01 of the Code of Professional Responsibility (CPR). Thus, the
investigating commissioner of the IBP Commission on Bar Discipline recommended
the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with
modification, the Report and Recommendation of the Investigating Commissioner
of the above-entitled case, herein made part of this Resolution as Annex "A"; and,
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 B. Tambago is
hereby suspended from the practice of law for one year and Respondent’s notarial
commission is Revoked and Disqualified from reappointment as Notary Public for
14
two (2) years.
We affirm with modification.
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
15
his death. A will may either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of
wills. The object of solemnities surrounding the execution of wills is to close the
door on bad faith and fraud, to avoid substitution of wills and testaments and to
16
guarantee their truth and authenticity.
A notarial will, as the contested will in this case, is required by law to be subscribed
at the end thereof by the testator himself. In addition, it should be attested and
subscribed by three or more credible witnesses in the presence of the testator and
17
of one another.
The will in question was attested by only two witnesses, Noynay and Grajo. On this
18
circumstance alone, the will must be considered void. This is in consonance with
the rule that acts executed against the provisions of mandatory or prohibitory laws
shall be void, except when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary
19
public by the testator and the witnesses. The importance of this requirement is
highlighted by the fact that it was segregated from the other requirements under
20
Article 805 and embodied in a distinct and separate provision.
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 notary public
21
that the same is his or her own free act and deed. The acknowledgment in a
notarial will has a two-fold 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.
A cursory examination of the acknowledgment of the will in question shows that
this particular requirement was neither 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 invalidated the will.
As the acknowledging officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. As we held in
22
Santiago v. Rafanan:
The Notarial Law is explicit on the obligations and duties of notaries public. They are
required to certify that the party to 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.
These formalities are mandatory and cannot be disregarded, considering the degree
23
of importance and evidentiary weight attached to notarized documents. A notary
24
public, especially a lawyer, is bound to strictly observe these elementary
requirements.
The Notarial Law then in force required the exhibition of the residence certificate
upon notarization of a document or instrument:
Section 251. Requirement as to notation of payment of [cedula] residence tax. –
Every contract, deed, or other document 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 public as a part of such certificate the number, place of
25
issue, and date of each [cedula] residence certificate as aforesaid.
The importance of such act was further reiterated by Section 6 of the Residence Tax
26
Act which stated:
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
residence certificate showing payment of the residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish the true and
correct identity of the person to whom it is issued, as well as the payment of
residence taxes for the current year. By having allowed decedent to exhibit an
expired residence certificate, respondent failed to comply with the requirements of
both the old Notarial Law and the Residence Tax Act. As much could be said of his
failure to demand the exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy
of the notarized will to the archives division, Article 806 provides:
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)
Respondent’s failure, inadvertent or not, to file in the archives division a copy of the
notarized will was therefore not a cause for disciplinary action.
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 order:
1. nature of each instrument executed, sworn to, or acknowledged before him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the
27
instrument.
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.
28
To reinforce his claim, he presented a photocopy of a certification stating that the
archives division had no copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown
that the original is unavailable. The proponent must first prove the existence and
29
cause of the unavailability of the original, otherwise, the evidence 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 evidence.
In the same vein, respondent’s attempt to controvert the certification dated
30
September 21, 1999 must fail. Not only did he present a mere photocopy of the
31
certification dated March 15, 2000; its contents did not squarely prove the fact of
entry of the contested will in his notarial register.
32
Notaries public must observe with utmost care and utmost fidelity the basic
requirements in the performance of their duties, otherwise, the confidence of the
33
public in the integrity of notarized deeds will be undermined.
Defects in the observance of the solemnities prescribed by law render the entire
will invalid. This carelessness cannot be taken lightly in view of the importance and
delicate nature of a will, considering that the testator and the witnesses, as in this
34
case, are no longer alive to identify the instrument and to confirm its contents.
Accordingly, respondent must be held accountable for his acts. The validity of the
35
will was seriously compromised as a consequence of his breach of duty.
In this connection, Section 249 of the old Notarial Law provided:
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:
xxx xxx xxx
(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.
xxx xxx xxx
(f) The failure of the notary to make the proper notation regarding cedula
36
certificates.
These gross violations of the law also made respondent liable for violation of his
oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the
37 38 39
Rules of Court and Canon 1 and Rule 1.01 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of
40
the Philippines, uphold the Constitution and obey the laws of the land. For a
lawyer is the servant of the law and belongs to a profession to which society has
41
entrusted the administration of law and the dispensation of justice.
While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law, a lawyer should moreover
42
make himself an example for others to emulate. Being a lawyer, he is supposed to
43
be a model in the community in so far as respect for the law is concerned.
44
The practice of law is a privilege burdened with conditions. A breach of these
conditions justifies disciplinary action against the erring lawyer. A disciplinary
sanction is imposed on a lawyer upon a finding or acknowledgment that he has
45
engaged in professional misconduct. These sanctions meted out to errant lawyers
include disbarment, suspension and reprimand.
46
Disbarment is the most severe form of disciplinary sanction. We have held in a
47
number of cases that the power to disbar must be exercised with great caution
and should not be decreed if any punishment less severe – such as reprimand,
48
suspension, or fine – will accomplish the end desired. The rule then is that
disbarment is meted out only in clear cases of misconduct that seriously affect the
49
standing and character of the lawyer as an officer of the court.
Respondent, as notary public, evidently failed in the performance of the elementary
duties of his office. Contrary to his claims that he "exercised his duties as Notary
Public with due care and with due regard to the provision of existing law 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 the practice
50
of law. It is, as well, a sufficient basis for the revocation of his commission and his
51
perpetual disqualification to be commissioned as a notary public.
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the 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) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one
year and his notarial commission 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.
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.
SO ORDERED.
BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS, RESPONDENT.
DECISION
Corona, J.:
[1]
The Scriptures tell the story of the brothers Jacob and Esau , siblings who fought
bitterly over the inheritance of their father Isaac’s estate. Jurisprudence is also
replete with cases involving acrimonious conflicts between brothers and sisters
over successional rights. This case is no exception.
On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella A.
Guerrero and respondent Resurreccion A. Bihis, died at the Metropolitan Hospital in
Tondo, Manila.
On May 24, 1994, petitioner filed a petition for the probate of the last will and
[2]
testament of the decedent in Branch 95 of the Regional Trial Court of Quezon City
where the case was docketed as Sp. Proc. No. Q-94-20661.
The petition alleged the following: petitioner was named as executrix in the
decedent’s will and she was legally qualified to act as such; the decedent was a
citizen of the Philippines at the time of her death; at the time of the execution of
the will, the testatrix was 79 years old, of sound and disposing mind, not acting
under duress, fraud or undue influence and was capacitated to dispose of her
estate by will.
Respondent opposed her elder sister’s petition on the following grounds: the will ART. 806. Every will must be acknowledged before a notary public by the testator
was not executed and attested as required by law; its attestation clause and and the witnesses. The notary public shall not be required to retain a copy of the
acknowledgment did not comply with the requirements of the law; the signature of will, or file another with the office of the Clerk of Court.
the testatrix was procured by fraud and petitioner and her children procured the One of the formalities required by law in connection with the execution of a
will through undue and improper pressure and influence. notarial will is that it must be acknowledged before a notary public by the testator
[6]
In an order dated November 9, 1994, the trial court appointed petitioner as special and the witnesses. This formal requirement is one of the indispensable requisites
[7]
administratrix of the decedent’s estate. Respondent opposed petitioner’s for the validity of a will. In other words, a notarial will that is not acknowledged
appointment but subsequently withdrew her opposition. Petitioner took her oath before a notary public by the testator and the instrumental witnesses is void and
as temporary special administratrix and letters of special administration were cannot be accepted for probate.
issued to her. An acknowledgment is the act of one who has executed a deed in going before
[8]
On January 17, 2000, after petitioner presented her evidence, respondent filed a some competent officer and declaring it to be his act or deed. In the case of a
demurrer thereto alleging that petitioner’s evidence failed to establish that the notarial will, that competent officer is the notary public.
decedent’s will complied with Articles 804 and 805 of the Civil Code. The acknowledgment of a notarial will coerces the testator and the instrumental
In a resolution dated July 6, 2001, the trial court denied the probate of the will witnesses to declare before an officer of the law, the notary public, that they
[9]
ruling that Article 806 of the Civil Code was not complied with because the will was executed and subscribed to the will as their own free act or deed. Such
“acknowledged” by the testatrix and the witnesses at the testatrix’s, residence at declaration is under oath and under pain of perjury, thus paving the way for the
No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a criminal prosecution of persons who participate in the execution of spurious wills,
[10]
commissioned notary public for and in Caloocan City. The dispositive portion of the or those executed without the free consent of the testator. It also provides a
resolution read: further degree of assurance that the testator is of a certain mindset in making the
WHEREFORE, in view of the foregoing, the Court finds, and so declares that it testamentary dispositions to the persons instituted as heirs or designated as
[11]
cannot admit the last will and testament of the late Felisa Tamio de Buenaventura devisees or legatees in the will.
to probate for the reasons hereinabove discussed and also in accordance with Acknowledgment can only be made before a competent officer, that is, a lawyer
Article 839 [of the Civil Code] which provides that if the formalities required by law duly commissioned as a notary public.
have not been complied with, the will shall be disallowed. In view thereof, the Court In this connection, the relevant provisions of the Notarial Law provide:
shall henceforth proceed with intestate succession in regard to the estate of the SECTION 237. Form of commission for notary public. -The appointment of a notary
deceased Felisa Tamio de Buenaventura in accordance with Article 960 of the [Civil public shall be in writing, signed by the judge, and substantially in the following
Code+, to wit: “Art. 960. Legal or intestate succession takes place: (1) If a person form:
dies without a will, or with a void will, or one which has subsequently lost its GOVERNMENT OF THE
validity, xxx.” REPUBLIC OF THE PHILIPPINES
[3]
SO ORDERED. PROVINCE OF ___________
Petitioner elevated the case to the Court of Appeals but the appellate court This is to certify that ____________, of the municipality of ________ in said
[4]
dismissed the appeal and affirmed the resolution of the trial court. province, was on the ___ day of __________, anno Domini nineteen hundred and
[5]
Thus, this petition. _______, appointed by me a notary public, within and for the said province, for the
Petitioner admits that the will was acknowledged by the testatrix and the witnesses term ending on the first day of January, anno Domini nineteen hundred and _____.
at the testatrix’s residence in Quezon City before Atty. Directo and that, at that _________________
time, Atty. Directo was a commissioned notary public for and in Caloocan City. She, Judge of the Court of
[12]
however, asserts that the fact that the notary public was acting outside his irst Instance of said
territorial jurisdiction did not affect the validity of the notarial will. Province
Did the will “acknowledged” by the testatrix and the instrumental witnesses before xxx xxx xxx
a notary public acting outside the place of his commission satisfy the requirement SECTION 240. Territorial jurisdiction. – The jurisdiction of a notary public in a
under Article 806 of the Civil Code? It did not. province shall be co-extensive with the province. The jurisdiction of a notary public
Article 806 of the Civil Code provides: in the City of Manila shall be co-extensive with said city. No notary shall possess
authority to do any notarial act beyond the limits of his jurisdiction. (emphases
supplied)
A notary public’s commission is the grant of authority in his favor to perform
[13]
notarial acts. It is issued “within and for” a particular territorial jurisdiction and
the notary public’s authority is co-extensive with it. In other words, a notary public
is authorized to perform notarial acts, including the taking of acknowledgments,
within that territorial jurisdiction only. Outside the place of his commission, he is
bereft of power to perform any notarial act; he is not a notary public. Any notarial
act outside the limits of his jurisdiction has no force and effect. As this Court
[14]
categorically pronounced in Tecson v. Tecson:
An acknowledgment taken outside the territorial limits of the officer’s jurisdiction is
void as if the person taking it ware wholly without official character. (emphasis
supplied)
Since Atty. Directo was not a commissioned notary public for and in Quezon City, he
lacked the authority to take the acknowledgment of the testatrix and the
instrumental witnesses. In the same vein, the testatrix and her witnesses could not
have validly acknowledged the will before him. Thus, Felisa Tamio de
Buenaventura’s last will and testament was, in effect, not acknowledged as
required by law.
Moreover, Article 5 of the Civil Code provides:
ART. 5. Acts executed against the provisions of mandatory or prohibitory laws shall
be void, except when the law itself authorizes their validity.
The violation of a mandatory or a prohibitory statute renders the act illegal and void
unless the law itself declares its continuing validity. Here, mandatory and
prohibitory statutes were transgressed in the execution of the alleged
“acknowledgment.” The compulsory language of Article 806 of the Civil Code was
not complied with and the interdiction of Article 240 of the Notarial Law was
breached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo were
all completely void.
The Court cannot turn a blind eye to Atty. Directo’s participation in the preparation,
execution and unlawful “acknowledgment” of Felisa Tamio de Buenaventura’s will.
Had he exercised his notarial commission properly, the intent of the law to
[15]
effectuate the decedent’s final statements as expressed in her will would not
[16]
have come to naught. Hence, Atty. Directo should show cause why he should not
be administratively sanctioned as a member of the bar and as an officer of the
court.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
Let a copy of this decision be furnished the Commission on Bar Discipline of the
Integrated Bar of the Philippines for investigation, report and recommendation on
the possible misconduct of Atty. Macario O. Directo.
SO ORDERED.