G.R. No.

L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased.

ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for
respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3, 1943. The
will is written in the Ilocano dialect and contains the following
attestation clause:
We, the undersigned, by these presents to declare that the
foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this
attestation clause and that of the left margin of the three
pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect
which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose
of three pages and all them were signed in the presence of
the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of
us witnesses.
In testimony, whereof, we sign this statement, this the
third day of January, one thousand nine hundred forty
three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A reugo del
testator" and the name of Florentino Javier. Antero Mercado is
alleged to have written a cross immediately after his name. The
Court of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1)
to certify that the will was signed on all the left margins of the
three pages and at the end of the will by Atty. Florentino Javier at
the express request of the testator in the presence of the testator
and each and every one of the witnesses; (2) to certify that after
the signing of the name of the testator by Atty. Javier at the
former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three
witnesses signed the will in all the pages thereon in the presence
of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing
to state that Antero Mercado caused Atty. Florentino Javier to write
the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner
(who is appealing by way of certiorari from the decision of the
Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient
by this Court in the cases of De Gala vs. Gonzales and Ona, 53
Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81
Phil., 429.
It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by
which he signed his name. After mature reflection, we are not
prepared to liken the mere sign of the cross to a thumbmark, and

the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine
there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses,
and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against
the petitioner. So ordered.

G.R. No. L-36033 November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE
WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance
of Southern Leyte, (Branch III, Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

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

In the petition for probate filed with the respondent court, the
petitioner attached the alleged last will and testament of the late
Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the
page by the testatrix alone and at the left hand margin by the
three (3) instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed at the
end of the attestation clause by the three (3) attesting witnesses
and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with
the requirement of publication, the trial court commissioned the
branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who
testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian
issued the questioned order denying the probate of the will of
Dorotea Perez for want of a formality in its execution. In the same
order, the petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so that they
could be properly notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial court, the petitioner
filed a manifestation and/or motion, ex partepraying for a thirtyday period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the tenday period required by the court to submit the names of intestate
heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order
denying the probate of the will. However, the motion together with
the previous manifestation and/or motion could not be acted upon
by the Honorable Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents were still

pending resolution when respondent Judge Avelino S. Rosal

assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of
special administrator.
Subsequently, the new Judge denied the motion for reconsideration
as well as the manifestation and/or motion filed ex parte. In the
same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's
failure to comply with the order requiring him to submit the names
of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil
Code require that the testatrix and all the three instrumental and
attesting witnesses sign at the end of the will and in the presence
of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator
himself or by the testator's name written by some
other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of
each page.

The attestation shall state the number of pages

used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the presence
of the instrumental witnesses, and that the lacier
witnesses and signed the will and the pages
thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known
to the witnesses, it shall be interpreted to the
witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law
to require that, for a notarial will to be valid, it is not enough that
only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another because the attesting
witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the
page, where the end of the will is found, at the left hand margin of
that page.
On the other hand, the petitioner maintains that Article 805 of the
Civil Code does not make it a condition precedent or a matter of
absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically
located at the end of the wig after the signature of the testatrix. He
contends that it would be absurd that the legislature intended to
place so heavy an import on the space or particular location where
the signatures are to be found as long as this space or particular
location wherein the signatures are found is consistent with good
faith and the honest frailties of human nature.
We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by
his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in witnessing
the testator's execution of the will in order to see and take note
mentally that those things are, done which the statute requires for
the execution of a will and that the signature of the testator exists
as a fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose of
Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our
considered view that the will in this case was subscribed in a
manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of
the first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the law on
wills in this project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more
freedom in expressing his last wishes but with sufficient safeguards
and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the

testator. This objective is in accord with the modern tendency in

respect to the formalities in the execution of a will" (Report of the
Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned
order that were not for the defect in the place of signatures of the
witnesses, he would have found the testimony sufficient to
establish the validity of the will.
The objects of attestation and of subscription were fully met and
satisfied in the present case when the instrumental witnesses
signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be the same
will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for
the fact that, in this case, it is discernible from the entire wig that it
is really and actually composed of only two pages duly signed by
the testatrix and her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The acknowledgment
itself states that "This Last Will and Testament consists of two
pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made
the following observations with respect to the purpose of the
requirement that the attestation clause must state the number of
pages used:
The law referred to is article 618 of the Code of
Civil Procedure, as amended by Act No. 2645,

which requires that the attestation clause shall

state the number of pages or sheets upon which
the win is written, which requirement has been
held to be mandatory as an effective safeguard
against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
481; Echevarria vs. Sarmiento, 66 Phil. 611).
The ratio decidendi of these cases seems to be that
the attestation clause must contain a statement of
the number of sheets or pages composing the will
and that if this is missing or is omitted, it will have
the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but
by a consideration or examination of the will itself.
But here the situation is different. While the
attestation clause does not state the number of
sheets or pages upon which the will is written,
however, the last part of the body of the will
contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this
case out of the rigid rule of construction and places
it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent
the will of the testator from being defeated by
purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling
which applies a similar liberal approach:
... Impossibility of substitution of this page is
assured not only (sic) the fact that the testatrix and
two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the
seal of the notary public before whom the

testament was ratified by testatrix and all three

witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she had no control where the
purpose of the law to guarantee the Identity of the
testament and its component pages is sufficiently
attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the
fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano,
49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will
by muddling or bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby granted. The orders of
the respondent court which denied the probate of tile will, the
motion for reconsideration of the denial of probate, and the motion
for appointment of a special administrator are set aside. The
respondent court is ordered to allow the probate of the wig and to
conduct further proceedings in accordance with this decision. No
pronouncement on costs.
SO ORDERED.

G.R. No. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,
vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN
APED, respondents.
Nestor P. Mondok for petitioner.

Lazaro Padong for private respondents.

PUNO, J.:
This is a petition for review by certiorari of the Decision, dated
March 27, 1990, of the Court of appeals 1 in CA-G.R. CV No. 19071,
disallowing probate of the Last Will and Codicil executed by Calibia
Lingdan Bulanglang, who died on March 20, 1976.
The records show that decedent left behind nine thousand pesos
(P9,000.00) worth of property. She also left a Last Will and
Testament, dated October 30, 1972, and a Codicil thereto, dated
July 24, 1973. Both documents contained the thumbmarks of
decedent. They were also signed by three (3) attesting witnesses
each, and acknowledged before Tomas A. Tolete, then the Municipal
Judge and Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a Petition for its
allowance before the RTC of Bontoc, Mt. Province, Br. 36. 2 He died
during the pendency of the proceedings, and was duly substituted
by petitioner. Private respondents, relatives of decedent, opposed
the Petitioner filed by Calde, on the following grounds: that the will
and codicil were written in Ilocano, a dialect that decedent did not
know; that decedent was mentally incapacitated to execute the
two documents because of her advanced age, illness and deafness;
that decedents thumbmarks were procured through fraud and
undue influence; and that the codicil was not executed in
accordance with law.
On June 23, 1988, the trial court rendered judgment on the case,
approving and allowing decedents will and its codicil. The decision
was appealed to and reversed by the respondent Court of Appeals.
It held:

. . . (T)he will and codicil could pass the safeguards

under Article 805 of the New Civil Code but for one
crucial factor of discrepancy in the color of ink
when the instrumental witnesses affixed their
respective signatures. When subjected to crossexamination, Codcodio Nacnas as witness testified
as follows:
Q And all of you signed on the
same table?
A Yes, sir.
Q And when you were all signing
this Exhibit "B" and "B-1", Exhibit
"B" and "B-1" which is the
testament was passed around all of
you so that each of you will sign
consecutively?
A Yes, sir.
Q Who was the first to sign?
A Calibia Lingdan Bulanglang.
Q After Calibia Lingdan Bulanglang
was made to sign I withdraw the
question. How did Calibia Lingdan
Bulanglang sign the last will and
testament?
A She asked Judge Tolete the place
where she will affix her thumbmark
so Judge Tolete directed her hand
or her thumb to her name.

Q After she signed, who was the

second to sign allegedly all of you
there present?

could sign his name as witness to

the document, is it not?
A Yes, sir.

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

Q And that is the truth and you

swear that to be the truth before
the Honorable Court?
ATTY. DALOG:

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

He already testified under oath,

Your Honor.
COURT:

A Me, sir.

Witness may answer

Q And Jose Becyagen passed you

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

A Yes, sir.

A Yes, sir.
Q And then after you signed, who
was the next to sign the document,
Exhibit "B" and "B-1"?
A Hilario Coto-ong.
Q So you passed also to Hilario
Coto-ong the same Exhibit "B" and
"B-1" and the ballpen so that he

For his part, Obanan Ticangan likewise admitted

during cross-examination in regard to the codicil
that:
Q When you signed Exhibit "D" and
"D-1", did you all sign with the
same ballpen?
A One.
Such admissions from instrumental witnesses are
indeed significant since they point to no other
conclusion than that the documents were not
signed by them in their presence but on different
occasions since the same ballpen used by them
supposedly in succession could not have produced
a different color from blue to black and from black

to blue. In fact, the attestation clause followed the

same pattern. The absurd sequence was repeated
when they signed the codicil, for which reason, We
have no other alternative but to disallow the Last
Will and Codicil. Verily, if the witnesses and
testatrix used the same ballpen, then their
signatures would have been in only one color, not
in various ones as shown in the documents.
Moreover, the signatures, in different colors as they
are, appear to be of different broadness, some
being finer than the others, indicating that,
contrary to what the testamentary witnesses
declared on the witness stand, not only one ballpen
was used, and, therefore, showing that the
documents were not signed by the testatrix and
instrumental witnesses in the presence of one
another. . . " (Rollo, pp. 44-46. Citations omitted.)
Petitioner unsuccessfully moved for reconsideration of the
impugned Decision. His motion was denied by the respondent
court in its Order, dated May 24, 1990.
Thus, this appeal by petitioner who now puts in issue the
correctness of the respondent courts conclusion that both
decedents will and codicil were not subscribed by the witnesses in
the presence of the testator and of one another, contrary to the
requirements of Article 805 of the Civil Code. He contends that:
1. THE HONORABLE COURT OF APPEALS HAS
DECIDED A QUESTION OF SUBSTANCE IN A WAY
NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISION OF THE SUPREME COURT BY
CONCLUDING BASED ON PURE SPECULATION OR
SURMISES AND WITHOUT REGARD TO THE
TESTIMONY OF JUDGE TOLETE WHICH IS AN
EVIDENCE OF SUBSTANCE THAT THE WILL AND THE
CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG WERE SIGNED BY HER AND BY HER

INSTRUMENTAL WITNESSES ON DIFFERENT

OCCASIONS;
2. THE HONORABLE COURT OF APPEALS HAS
DECIDED A QUESTION OF SUBSTANCE IN A WAY
NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISIONS OF THE SUPREME COURT
BY DISREGARDING THE PROBATIVE VALUE OF THE
ATTESTATION CLAUSES OF THE LAST WILL AND
TESTAMENT AND THE CODICIL OF THE LATE
CALIBIA LINGDAN BULANGLANG.
The petition must fail.
The question in the case at bench is one of fact: whether or not,
based on the evidence submitted, respondent appellate court erred
in concluding that both decedents Last Will and Testament, and its
Codicil were subscribed by the instrumental witnesses on separate
occasions. As a general rule, factual findings of the Court of
Appeals are considered final and conclusive, and cannot be
reviewed on appeal to this court. In the present instance, however,
there is reason to make an exception to that rule, since the finding
of the respondent court is contrary to that of the trial court, viz.:
. . . (Private respondents) pointed out however,
that the assertions of petitioners witnesses are rife
with contradictions, particularly the fact that the
latters signatures on the documents in issue
appear to have been written in ballpens of different
colors contrary to the statements of said witnesses
that all of them signed with only one ballpen. The
implication is that the subscribing witnesses to the
Will and Codicil, and the testatrix did not
simultaneously sign each of the documents in one
sitting but did it piecemeal a violation of Art. 805
of the Code. This conclusion of the (private
respondents) is purely circumstantial. From this
particular set of facts, numerous inferences without

limits can be drawn depending on which side of the

fence one is on. For instance, considering the time
interval that elapsed between the making of the
Will and Codicil, and up to the filing of the petition
for probate, the possibility is not remote that one
or two of the attesting witnesses may have
forgotten certain details that transpired when they
attested the documents in question . . . (Rollo, pp.
36-37.)
A review of the facts and circumstances upon which respondent
Court of Appeals based its impugned finding, however, fails to
convince us that the testamentary documents in question were
subscribed and attested by the instrumental witnesses during a
single occasion.
As sharply noted by respondent appellate court, the signatures of
some attesting witnesses in decedents will and its codicil were
written in blue ink, while the others were in black. This discrepancy
was not explained by petitioner. Nobody of his six (6) witnesses
testified that two pens were used by the signatories on the two
documents. In fact, two (2) of petitioners witnesses even testified
that only one (1) ballpen was used in signing the two testamentary
documents.
It is accepted that there are three sources from which a tribunal
may properly acquire knowledge for making its decisions, namely:
circumstantial evidence, testimonial evidence, and real evidence or
autoptic proference. Wigmore explains these sources as follows:
If, for example, it is desired to ascertain whether
the accused has lost his right hand and wears an
iron hook in place of it, one source of belief on the
subject would be the testimony of a witness who
had seen the arm; in believing this testimonial
evidence, there is an inference from the human
assertion to the fact asserted. A second source of
belief would be the mark left on some substance

grasped or carried by the accused; in believing this

circumstantial evidence, there is an inference from
the circumstance to the thing producing it. A third
source of belief remains, namely, the inspection by
the tribunal of the accuseds arm. This source
differs from the other two in omitting any step of
conscious inference or reasoning, and in
proceeding by direct self-perception, or autopsy.
It is unnecessary, for present purposes, to ask
whether this is not, after all, a third source of
inference, i.e., an inference from the impressions or
perceptions of the tribunal to the objective
existence of the thing perceived. The law does not
need and does not attempt to consider theories of
psychology as to the subjectivity of knowledge or
the mediateness of perception. It assumes the
objectivity of external nature; and, for the purposes
of judicial investigation, a thing perceived by the
tribunal as existing does exist.
There are indeed genuine cases of inference by the
tribunal from things perceived to other things
unperceived as, for example, from a persons
size, complexion, and features, to his age; these
cases of a real use of inference can be later more
fully distinguished . . . But we are here concerned
with nothing more than matters directly perceived
for example, that a person is of small height or is
of dark complexion; as to such matters, the
perception by the tribunal that the person is small
or large, or that he has a dark or light complexion,
is a mode of acquiring belief which is independent
of inference from either testimonial or
circumstantial evidence. It is the tribunals selfperception, or autopsy, of the thing itself.

From the point of view of the litigant party

furnishing this source of belief, it may be
termed Autoptic Proference. 3 (Citations omitted.)
In the case at bench, the autoptic proference contradicts the
testimonial evidence produced by petitioner. The will and its
codicil, upon inspection by the respondent court, show in black and
white or more accurately, in black and blue that more than
one pen was used by the signatories thereto. Thus, it was not
erroneous nor baseless for respondent court to disbelieve
petitioners claim that both testamentary documents in question
were subscribed to in accordance with the provisions of Art. 805 of
the Civil Code.
Neither did respondent court err when it did not accord great
weight to the testimony of Judge Tomas A. Tolete. It is true that his
testimony contains a narration of how the two testamentary
documents were subscribed and attested to, starting from
decedents thumbmarking thereof, to the alleged signing of the
instrumental witnesses thereto in consecutive order. Nonetheless,
nowhere in Judge Toletes testimony is there any kind of
explanation for the different-colored signatures on the testaments.
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The
Decision of respondent Court of Appeals, dated March 27, 1988, in
CA-G.R. CV No. 19071 disallowing the Last Will and Testament, and
the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is
AFFIRMED IN TOTO. Costs against petitioner.
SO ORDERED.

G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu
admitted to probate Ana Abangan's will executed July, 1916. From
this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of
two sheets, the first of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation clause
duly signed at the bottom by the three instrumental witnesses.
Neither of these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and these
omissions, according to appellants' contention, are defects
whereby the probate of the will should have been denied. We are
of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in the
presence of each other, Act No. 2645 (which is the one applicable
in the case) evidently has for its object (referring to the body of the
will itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions
are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their signatures
on the left margin of said sheet would be completely purposeless.

In requiring this signature on the margin, the statute took into

consideration, undoubtedly, the case of a will written on several
sheets and must have referred to the sheets which the testator and
the witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that this
sheet, already signed at the bottom, be signed twice. We cannot
attribute to the statute such an intention. As these signatures must
be written by the testator and the witnesses in the presence of
each other, it appears that, if the signatures at the bottom of the
sheet guaranties its authenticity, another signature on its left
margin would be unneccessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would add
nothing. We cannot assume that the statute regards of such
importance the place where the testator and the witnesses must
sign on the sheet that it would consider that their signatures
written on the bottom do not guaranty the authenticity of the sheet
but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered
correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether
any sheet of the will has been removed. But, when all the
dispositive parts of a will are written on one sheet only, the object
of the statute disappears because the removal of this single sheet,
although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause.
Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the
sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add that
same is not necessary in the attestation clause because this, as its
name implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two

sheets the first of which contains all the testamentary dispositions
and is signed at the bottom by the testator and three witnesses
and the second contains only the attestation clause and is signed
also at the bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by the testator and
the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal ends. But, on
the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the
right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless
and frustative of the testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not
show that the testarix knew the dialect in which the will is written.
But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the absence of any proof
to the contrary, to presume that she knew this dialect in which this
will is written.
For the foregoing considerations, the judgment appealed from is
hereby affirmed with costs against the appellants. So ordered.

G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE

JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositorsappellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila
admitting to probate the document and its duplicate, marked as
Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano,
the person named therein as such.
This special proceeding was begun on October 2, 1958 by a
petition for the allowance and admission to probate of the original,
Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for
the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958,
and caused notice thereof to be published for three (3) successive
weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon
the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the
testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator, to
which proponent objected. Hence, on November 18, 1958, the
court issued an order appointing the Philippine Trust Company as
special administrator. 1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also

filed a manifestation adopting as his own Natividad's opposition to
the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion
for the admission of an amended and supplemental petition,
alleging that the decedent left a will executed in duplicate with all
the legal requirements, and that he was, on that date, submitting
the signed duplicate (Exhibit "A-1"), which he allegedly found only
on or about May 26, 1959. On June 17, 1959, oppositors Natividad
Icasiano de Gomez and Enrique Icasiano filed their joint opposition
to the admission of the amended and supplemental petition, but by
order of July 20, 1959, the court admitted said petition, and on July
30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective
evidence, and after several hearings the court issued the order
admitting the will and its duplicate to probate. From this order, the
oppositors appealed directly to this Court, the amount involved
being over P200,000.00, on the ground that the same is contrary
to law and the evidence.
The evidence presented for the petitioner is to the effect that
Josefa Villacorte died in the City of Manila on September 12, 1958;
that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo
P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the
will was acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that
the will was actually prepared by attorney Fermin Samson, who
was also present during the execution and signing of the
decedent's last will and testament, together with former Governor
Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of
the said three instrumental witnesses to the execution of the
decedent's last will and testament, attorneys Torres and Natividad

were in the Philippines at the time of the hearing, and both

testified as to the due execution and authenticity of the said will.
So did the Notary Public before whom the will was acknowledged
by the testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also
testified upon cross examination that he prepared one original and
two copies of Josefa Villacorte last will and testament at his house
in Baliuag, Bulacan, but he brought only one original and one
signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed at
the end and in every page, it does not contain the signature of one
of the attesting witnesses, Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the
testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to
show that the original of the will and its duplicate were subscribed
at the end and on the left margin of each and every page thereof
by the testatrix herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in that of one
another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the
original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to
be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and
spoken by the testatrix that the attestation clause is in a language
also known to and spoken by the witnesses; that the will was
executed on one single occasion in duplicate copies; and that both
the original and the duplicate copies were duly acknowledged
before Notary Public Jose Oyengco of Manila on the same date June
2, 1956.

Witness Natividad who testified on his failure to sign page three (3)
of the original, admits that he may have lifted two pages instead of
one when he signed the same, but affirmed that page three (3)
was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the
effect that the signatures of the testatrix in the duplicate (Exhibit
"A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the
documents were genuine, they were executed through mistake and
with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of
those who will stand to benefit from the provisions of the will, as
may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined not
to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court
was, that the testatrix signed both original and duplicate copies
(Exhibits "A" and "A-1", respectively) of the will spontaneously, on
the same in the presence of the three attesting witnesses, the
notary public who acknowledged the will; and Atty. Samson, who
actually prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the
testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were
not written by the same had which wrote the signatures in the
original will leaves us unconvinced, not merely because it is
directly contradicted by expert Martin Ramos for the proponents,

but principally because of the paucity of the standards used by him

to support the conclusion that the differences between the
standard and questioned signatures are beyond the writer's range
of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides those
affixed to the original of the testament (Exh. A); and we feel that
with so few standards the expert's opinion and the signatures in
the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability
of her signatures, and the effect of writing fatigue, the duplicate
being signed right the original. These, factors were not discussed
by the expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting
power. On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the
two instrumental witnesses, Torres and Natividad (Dr. Diy being in
the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The
fact that some heirs are more favored than others is proof of
neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil.
163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment
is the usual reason for making a testament; otherwise, the
decedent might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other property
and that they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free part do not
suffice to prove fraud or undue influence. They appear motivated
by the desire to prevent prolonged litigation which, as shown by
ordinary experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and speculators.

Whether these clauses are valid or not is a matter to be litigated

on another occassion. It is also well to note that, as remarked by
the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows absence
of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to
the simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of
the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on
record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation
clause".
That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as
well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause
and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict
and literal application of the statutory requirements, where the
purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with

the only page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the
first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked
one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly
signed carbon duplicate (Exh. A-1), and the same is probatable. If
the original is valid and can be probated, then the objection to the
signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove
that the omission of one signature in the third page of the original
testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted
without a new publication does not affect the jurisdiction of the
probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially
alter the one first filed, but merely supplemented it by disclosing
the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are
admittedly identical); and appellants were duly notified of the
proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and
we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is
affirmed, with costs against appellants.

G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted
by ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent), who died on
16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules
in the execution of notarial wills, all self-evident in view of Articles
805 and 806 of the Civil Code.
A will whose attestation clause does not contain the
number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed by
the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any
one of these defects is sufficient to deny probate. A
notarial will with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code
provides a comprehensive catalog of imperatives for the proper
execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room
for doubt as to the validity in the due execution of the notarial will.

Article 806 likewise imposes another safeguard to the validity of

notarial wills that they be acknowledged before a notary public
by the testator and the witnesses. A notarial will executed with
indifference to these two codal provisions opens itself to nagging
questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984
with the Regional Trial Court (RTC) of Manila. The petition filed by
petitioner Felix Azuela sought to admit to probate the notarial will
of Eugenia E. Igsolo, which was notarized on 10 June 1981.
Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular
Pilipino, read in full:

pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo

ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego
St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi
na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng
Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

HULING HABILIN NI EUGENIA E. IGSOLO

PATUNAY NG MGA SAKSI
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong
pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang
aking huling habilin at testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La
Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko
at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at
kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na siyang nagalaga sa akin sa mahabang panahon, yaong mga bahay na
nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten
Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa
bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling

dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat
dahon, sa harap ng lahat at bawat sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on
the left-hand margin of both pages of the will, but not at the
bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and
devisees of the decedent, namely: petitioner himself, and one Irene
Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be
issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda
Castillo), who represented herself as the attorney-in-fact of "the 12
legitimate heirs" of the decedent.2 Geralda Castillo claimed that
the will is a forgery, and that the true purpose of its emergence
was so it could be utilized as a defense in several court cases filed
by oppositor against petitioner, particularly for forcible entry and

usurpation of real property, all centering on petitioners right to

occupy the properties of the decedent.3 It also asserted that
contrary to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her grandchildren,
who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died
in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo,
who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not
executed and attested to in accordance with law. She pointed out
that decedents signature did not appear on the second page of
the will, and the will was not properly acknowledged. These twin
arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order
dated 10 August 1992.6 The RTC favorably took into account the
testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore
"the modern tendency in respect to the formalities in the execution
of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;"7 and from this perspective,
rebutted oppositors arguments that the will was not properly
executed and attested to in accordance with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having
in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the
law on the formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and
had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that
at the end of the will after the signature of the testatrix, the
following statement is made under the sub-title, "Patunay Ng Mga
Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling

dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat
dahon, sa harap ng lahat at bawat sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat 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 oppositors 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 oppositors 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 oppositors assertion that the signature of the
testatrix on the will is a forgery, the testimonies of the three
subscribing witnesses to the will are convincing enough to

establish the genuineness of the signature of the testatrix and the

due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto
Castillo, who had substituted his since deceased mother-in-law,
Geralda Castillo. In a Decision dated 17 August 1995, the Court of
Appeals reversed the trial court and ordered the dismissal of the
petition for probate.9 The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the
will, thus rendering the will void and undeserving of probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil
Code that "the number of pages used in a notarial will be stated in
the attestation clause" is merely directory, rather than mandatory,
and thus susceptible to what he termed as "the substantial
compliance rule."11
The solution to this case calls for the application of Articles 805
and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will and

every page thereof, or caused some other person to write his

name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office
of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the
failure of the attestation clause to state the number of pages of the
will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to
state the number of pages of the will.12 There was an incomplete
attempt to comply with this requisite, a space having been allotted
for the insertion of the number of pages in the attestation clause.
Yet the blank was never filled in; hence, the requisite was left
uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial
court, citing in the process Uy Coque v. Navas L. Sioca13 and In re:
Will of Andrada.14 In Uy Coque, the Court noted that among the
defects of the will in question was the failure of the attestation
clause to state the number of pages contained in the will. 15 In
ruling that the will could not be admitted to probate, the Court
made the following consideration which remains highly relevant to
this day: "The purpose of requiring the number of sheets to be
stated in the attestation clause is obvious; the document might
easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of

sheets such removal might be effected by taking out the

sheet and changing the numbers at the top of the following
sheets or pages. If, on the other hand, the total number of sheets
is stated in the attestation clause the falsification of the document
will involve the inserting of new pages and the forging of the
signatures of the testator and witnesses in the margin, a matter
attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation
clause of which failed to state the number of sheets or pages used.
This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the
attesting clause is fatal."17 It was further observed that "it cannot
be denied that the x x x requirement affords additional security
against the danger that the will may be tampered with; and as the
Legislature has seen fit to prescribe this requirement, it must be
considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet
the appellate court itself considered the import of these two cases,
and made the following distinction which petitioner is unable to
rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily
show that the attestation does not state the number of pages used
upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in
"Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the
attestation does not contain the number of pages used upon which
the Will is written. However, the Decisions of the Supreme Court
are not applicable in the aforementioned appeal at bench. This is

so because, in the case of "Manuel Singson versus Emilia

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

We have examined the will in question and noticed that the

attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for
the fact that, in this case, it is discernible from the entire will that it
is really and actually composed of only two pages duly signed by
the testatrix and her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The acknowledgment
itself states that "this Last Will and Testament consists of two
pages including this page" (pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the number of pages used in the
will is not stated in any part of the Will. The will does not even
contain any notarial acknowledgment wherein the number of
pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment
of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases
remains apropos, considering that the requirement that the
attestation state the number of pages of the will is extant from
Section 618.23 However, the enactment of the Civil Code in 1950
did put in force a rule of interpretation of the requirements of wills,
at least insofar as the attestation clause is concerned, that may
vary from the philosophy that governed these two cases. Article
809 of the Civil Code states: "In the absence of bad faith, forgery,
or fraud, or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance
with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their
execution with the end in view of giving the testator more
[freedom] in [expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in the
execution of wills."24 However, petitioner conveniently omits the
qualification offered by the Code Commission in the very same
paragraph he cites from their report, that such liberalization be
"but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper
pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion
made by Justice Regalado, speaking for the Court on the conflicting
views on the manner of interpretation of the legal formalities
required in the execution of the attestation clause in wills. 27 Uy
Coque and Andrada are cited therein, along with several other
cases, as examples of the application of the rule of strict
construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be
applied:
x x x The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are
three or the will was notarized. All these are facts that the will itself
can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign
did so in the presence of each other must substantially
appear in the attestation clause, being the only check
against perjury in the probate proceedings.29 (Emphasis
supplied.)

The Court of Appeals did cite these comments by Justice J.B.L.

Reyes in its assailed decision, considering that the failure to state
the number of pages of the will in the attestation clause is one of
the defects which cannot be simply disregarded. In Caneda itself,
the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective
signatures to the will in the presence of the testator and of each
other,30 the other omission cited by Justice J.B.L. Reyes which to his
estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an examination
of the will itself, without the need of resorting to extrinsic evidence,
will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself."31 Thus, a failure by the
attestation clause to state that the testator signed every page can
be liberally construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to state that
the witnesses signed in one anothers presence should be
considered a fatal flaw since the attestation is the only textual
guarantee of compliance.32
The failure of the attestation clause to state the number of pages
on which the will was written remains a fatal flaw, despite Article
809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages.33 The failure to
state the number of pages equates with the absence of an
averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda,
there is substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised of, as was
the situation in Singson and Taboada. However, in this case, there

could have been no substantial compliance with the requirements

under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages
which comprise the will.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article
805. Whatever the inclinations of the members of the Code
Commission in incorporating Article 805, the fact remains that they
saw fit to prescribe substantially the same formal requisites as
enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the
forgery or intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords the public a
high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner
established in the will.35 The transcendent legislative intent,
even as expressed in the cited comments of the Code
Commission, is for the fruition of the testators
incontestable desires, and not for the indulgent admission
of wills to probate.
The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of even
more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the will,
they do not appear at the bottom of the attestation clause which
after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin." 37 While
three (3) Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through

Chief Justice Paras, ruled that the attestation clause had not been
duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by
the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would
be easy to add such clause to a will on a subsequent occasion and
in the absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article
805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will
be "attested and subscribed by [the instrumental witnesses]." The
respective intents behind these two classes of signature are
distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware
that the page they are signing forms part of the will. On the other
hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation

clause results in an unattested will. Even if the instrumental

witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate
these witnesses undertakings in the clause, since the signatures
that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the witnesses in
this case signed the attestation clause itself, but not the left-hand
margin of the page containing such clause. Without diminishing the
value of the instrumental witnesses signatures on each and every
page, the fact must be noted that it is the attestation clause which
contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator,
who are required under Article 805 to state the number of pages
used upon which the will is written; the fact that the testator had
signed the will and every page thereof; and that they witnessed
and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the
witnesses have stated these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly
attested to by the instrumental witnesses, as they failed to sign the
attestation clause.
Yet, there is another fatal defect to the will on which the denial of
this petition should also hinge. The requirement under Article 806
that "every will must be acknowledged before a notary public by
the testator and the witnesses" has also not been complied with.
The importance of this requirement is highlighted by the fact that it
had been segregated from the other requirements under Article
805 and entrusted into a separate provision, Article 806. The nonobservance 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 ng Maynila."40 By no manner
of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court
and declaring it to be his act or deed.41 It involves an extra step
undertaken whereby the signor actually declares to the notary that
the executor of a document has attested to the notary that the
same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even
though it does not hew to the usual language thereof. A jurat is
that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow that
the document was subscribed and sworn before the notary public,
while in this case, the notary public averred that he himself "signed
and notarized" the document. Possibly though, the word "ninotario"
or "notarized" encompasses the signing of and swearing in of the
executors of the document, which in this case would involve the
decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as
a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and
not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own
free act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or
those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act.43 The
acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had
executed and subscribed to the will as their own free act or deed.
Such declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who participate in

the execution of spurious wills, or those executed without the free

consent of the testator. It also provides a further degree of
assurance that the testator is of certain mindset in making the
testamentary dispositions to those persons he/she had designated
in the will.
It may not have been said before, but we can assert the rule, selfevident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and
the witnesses is fatally defective, even if it is subscribed
and sworn to before a notary public.
There are two other requirements under Article 805 which were not
fully satisfied by the will in question. We need not discuss them at
length, as they are no longer material to the
disposition of this case. The provision requires that the testator and
the instrumental witnesses sign each and every page of the will on
the left margin, except the last; and that all the pages shall be
numbered correlatively in letters placed on the upper part of each
page. In this case, the decedent, unlike the witnesses, failed to
sign both pages of the will on the left margin, her only signature
appearing at the so-called "logical end"44 of the will on its first
page. Also, the will itself is not numbered correlatively in letters on
each page, but instead numbered with Arabic numerals. There is a
line of thought that has disabused the notion that these two
requirements be construed as mandatory.45 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.

SO ORDERED.
MANUEL L. LEE, A.C. No. 5281
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA
and
LEONARDO-DE
CASTRO, JJ.
ATTY. REGINO B. TAMBAGO,
Respondent. Promulgated:
February 12, 2008
x------------------------------------------- - - - - - - -x

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.

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

In his complaint, complainant averred that his father, the

WHEREFORE, the petition is DENIED. Costs against petitioner.

decedent Vicente Lee, Sr., never executed the contested will.

Furthermore, the spurious will contained the forged signatures of

donation were in any way (sic) entirely and diametrically opposed

Cayetano Noynay and Loreto Grajo, the purported witnesses to its

from (sic) one another in all angle[s].[5]

execution.
Complainant also questioned the absence of notation of
In the said will, the decedent supposedly bequeathed his

the residence certificates of the purported witnesses Noynay and

entire estate to his wife Lim Hock Lee, save for a parcel of land

Grajo. He alleged that their signatures had likewise been forged

which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of

and merely copied from their respective voters affidavits.

complainant.
Complainant further asserted that no copy of such
The will was purportedly executed and acknowledged

purported will was on file in the archives division of the Records

before respondent on June 30, 1965. [1] Complainant, however,

Management and Archives Office of the National Commission for

pointed out that the residence certificate[2] of the testator noted in

Culture and the Arts (NCCA). In this connection, the certification of

the acknowledgment of the will was dated January 5, 1962.

the chief of the archives division dated September 19, 1999

[3]

Furthermore, the signature of the testator was not the same as

his signature as donor in a deed of donation[4] (containing his

purported genuine signature). Complainant averred that the
signatures of his deceased father in the will and in the deed of

stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965
refers to an AFFIDAVIT executed by BARTOLOME
RAMIREZ on June 30, 1965 and is available in
this Office[s] files.[6]

Respondent in his comment dated July 6, 2001 claimed

that the complaint against him contained false allegations: (1) that

He claimed that no copy of the contested will could be found there

because none was filed.

complainant was a son of the decedent Vicente Lee, Sr. and (2)
Lastly, respondent pointed out that complainant had no
that the will in question was fake and spurious. He alleged that
valid cause of action against him as he (complainant) did not first
complainant was not a legitimate son of Vicente Lee, Sr. and the
file an action for the declaration of nullity of the will and demand
last will and testament was validly executed and actually notarized
his share in the inheritance.
by respondent per affidavit

[7]

of Gloria Nebato, common-law wife of

Vicente Lee, Sr. and corroborated by the joint affidavit [8] of the
children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N.

the case to the Integrated Bar of the Philippines (IBP) for

investigation, report and recommendation.[10]

Lee, Jr. xxx.[9]

Respondent further stated that the complaint was filed

simply to harass

In a resolution dated October 17, 2001, the Court referred

him

because the criminal case filed by

complainant against him in the Office of the Ombudsman did not

prosper.

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 1[11] and Rule
1.01[12] of the Code of Professional Responsibility (CPR). [13] Thus, the

Respondent did not dispute complainants contention that

investigating
no copy of the will was on file in the archives division of the NCCA.

commissioner

of

the

IBP

Commission

on

Bar

Discipline recommended the suspension of respondent for a period

of three months.

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

The IBP Board of Governors, in its Resolution No. XVII-2006and fraud, to avoid substitution of wills and testaments and to
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 Respondents 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 Respondents notarial
commission
is Revoked
and
Disqualified from reappointment as Notary Public
for two (2) years.[14]

guarantee their truth and authenticity.[16]

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 of one
another.[17]

The will in question was attested by only two witnesses,

We affirm with modification.

Noynay and Grajo. On this circumstance alone, the will must be

A will is an act whereby a person is permitted, with the

considered void.[18] This is in consonance with the rule that acts

formalities prescribed by law, to control to a certain degree the

executed against the provisions of mandatory or prohibitory laws

disposition of his estate, to take effect after his death. [15] A will may

shall be void, except when the law itself authorizes their validity.

either be notarial or holographic.

The Civil Code likewise requires that a will must be

nor

substantially

complied

with.

For

one,

there

was

the

acknowledged before a notary public by the testator and the

conspicuous absence of a notation of the residence certificates of

witnesses.[19] The importance of this requirement is highlighted by

the notarial witnesses Noynay and Grajo in the acknowledgment.

the fact that it was segregated from the other requirements under

Similarly, the notation of the testators old residence certificate in

Article 805 and embodied in a distinct and separate provision. [20]

the same acknowledgment was a clear breach of the law. These

omissions by respondent invalidated the will.

An acknowledgment is the act of one who has executed a

deed in going before some competent officer or court and

As the acknowledging officer of the contested will,

declaring it to be his act or deed. It involves an extra step

respondent was required to faithfully observe the formalities of a

undertaken whereby the signatory actually declares to the notary

will and those of notarization. As we held in Santiago v. Rafanan:[22]

public that the same is his or her own free act and deed. [21] The
acknowledgment in a notarial will has a two-fold purpose: (1) to
safeguard the testators wishes long after his demise and (2) to

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.

assure that his estate is administered in the manner that he

intends it to be done.

These

formalities

are

mandatory

and

cannot

be

A cursory examination of the acknowledgment of the will in

disregarded, considering the degree of importance and evidentiary

question shows that this particular requirement was neither strictly

weight attached to notarized documents. [23] A notary public,

especially

lawyer,[24] is

bound

to

strictly

observe

these

elementary requirements.

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

The Notarial Law then in force required the exhibition of

year. By having allowed decedent to exhibit an expired residence
the residence certificate upon notarization of a document or
certificate, respondent failed to comply with the requirements of
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 issue, and date of
each [cedula] residence certificate as aforesaid.[25]

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

The importance of such act was further reiterated by

Section 6 of the Residence Tax Act[26] 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.

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)

Respondents failure, inadvertent or not, to file in the archives

proof, he presented a photocopy of his notarial register. To

division a copy of the notarized will was therefore not a cause for

reinforce

disciplinary action.

certification[28] stating that the archives division had no copy of the

his

claim,

he

presented

photocopy

of

affidavit of Bartolome Ramirez.

Nevertheless, respondent should be faulted for having
failed to make the necessary entries pertaining to the will in his

A photocopy is a mere secondary evidence. It is not

notarial register. The old Notarial Law required the entry of the

admissible unless it is shown that the original is unavailable. The

following matters in the notarial register, in chronological order:

proponent must first prove the existence and cause of the

1.
2.
3.
4.
5.
6.
7.

nature of each instrument executed, sworn

to, or acknowledged before him;
person
executing,
swearing
to,
or
acknowledging the instrument;
witnesses, if any, to the signature;
date of execution, oath, or acknowledgment
of the instrument;
fees collected by him for his services as
notary;
give each entry a consecutive number; and
if the instrument is a contract, a brief
description of the substance of the instrument.

unavailability of the original, [29] otherwise, the evidence presented

will not be admitted. Thus, the photocopy of respondents 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.

[27]

In the same vein, respondents attempt to controvert the

In an effort to prove that he had complied with the

certification dated September 21, 1999 [30] must fail. Not only did he

abovementioned rule, respondent contended that he had crossed

present a mere photocopy of the certification dated March 15,

out a prior entry and entered instead the will of the decedent. As

2000;[31] its contents did not squarely prove the fact of entry of the
contested will in his notarial register.

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

Notaries public must observe with utmost care [32] and

utmost fidelity the basic requirements in the performance of their
duties, otherwise, the confidence of the public in the integrity of

(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

notarized deeds will be undermined.

[33]

(f) The failure of the notary to make the proper

notation regarding cedula certificates.[36]

Defects in the observance of the solemnities prescribed by

law render the entire will invalid. This carelessness cannot be taken

These gross violations of the law also made respondent

lightly in view of the importance and delicate nature of a will,

liable for violation of his oath as a lawyer and constituted

considering that the testator and the witnesses, as in this case, are

transgressions of Section 20 (a), Rule 138 of the Rules of

no longer alive to identify the instrument and to confirm its

Court[37] and Canon 1[38] and Rule 1.01[39] of the CPR.

contents.[34] Accordingly, respondent must be held accountable for

his acts. The validity of the will was seriously compromised as a
consequence of his breach of duty.[35]

The first and foremost duty of a lawyer is to maintain

allegiance

to

the

Republic

of

the

Philippines,

uphold

the

Constitution and obey the laws of the land.[40] For a lawyer is the
In this connection, Section 249 of the old Notarial Law
servant of the law and belongs to a profession to which society has
provided:

entrusted the administration of law and the dispensation of justice.

Disbarment is the most severe form of disciplinary

sanction.[46] We have held in a number of cases that the power to

[41]

disbar must be exercised with great caution[47] and should not be

While the duty to uphold the Constitution and obey the law
decreed if any punishment less severe such as reprimand,
is an obligation imposed on every citizen, a lawyer assumes
suspension, or fine will accomplish the end desired. [48] The rule
responsibilities well beyond the basic requirements of good
then is that disbarment is meted out only in clear cases of
citizenship. As a servant of the law, a lawyer should moreover
misconduct that seriously affect the standing and character of the
make himself an example for others to emulate. [42] Being a lawyer,
lawyer as an officer of the court.[49]
he is supposed to be a model in the community in so far as respect
for the law is concerned.[43]

Respondent, as notary public, evidently failed in the

performance of the elementary duties of his office. Contrary to his

The practice of law is a privilege burdened with conditions.

claims that he exercised his duties as Notary Public with due care
[44]

A breach of these conditions justifies disciplinary action against

and with due regard to the provision of existing law and had

the erring lawyer. A disciplinary sanction is imposed on a lawyer

complied with the elementary formalities in the performance of his
upon a finding or acknowledgment that he has engaged in
duties xxx, we find that he acted very irresponsibly in notarizing
professional misconduct.[45] These sanctions meted out to errant
the will in question. Such recklessness warrants the less severe
lawyers include disbarment, suspension and reprimand.
punishment of suspension from the practice of law. It is, as well, a

sufficient basis for the revocation of his commission [50] and his

the Bar Confidant, as well as made part of the personal records of

perpetual disqualification to be commissioned as a notary public. [51]

respondent.
SO ORDERED.

WHEREFORE, respondent Atty. Regino B. Tambago is

hereby found guilty of professional misconduct. He violated (1) the
Lawyers 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.

LETICIA VALMONTE ORTEGA, G.R. No. 157451

Petitioner,
Present:
Panganiban, J.,
Chairman,
- versus - Sandoval-Gutierrez,
Corona,
Carpio Morales, and Garcia, JJ
JOSEFINA C. VALMONTE, Promulgated:
Respondent.
December 16, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

Atty. Regino B. Tambago is hereby SUSPENDED from the

practice

of

law

for

one

year

and

his

DECISION

notarial

commission REVOKED. Because he has not lived up to the

PANGANIBAN, J.:

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.

T
he law favors the probate of a will. Upon those who oppose it rests

Let copies of this Resolution be furnished to all the courts

the burden of showing why it should not be allowed. In the present
of the land, the Integrated Bar of the Philippines and the Office of

the court a quo for

proceedings.[4]

further

and

concomitant

case, petitioner has failed to discharge this burden satisfactorily.

For this reason, the Court cannot attribute any reversible error on
The assailed Resolution denied petitioners Motion for
the part of the appellate tribunal that allowed the probate of the
Reconsideration.
will.

The Facts

The Case

The facts were summarized in the assailed Decision of the

Before the Court is a Petition for Review [1] under Rule 45 of
CA, as follows:
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 be remanded to

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
followdescribed
properties,
which
belongs to me as [co-owner]:

a.

Lot 4-A, Block 13

described on plan Psd28575, 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 abovedescribed
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. A025-00482,
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;
IN WITNESS WHEREOF, I
have hereunto set my hand this
15th day of June 1983 in Quezon
City, Philippines.

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;

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;

and she also opposed the appointment

Executrix of Josefina alleging her want
understanding and integrity.

as
of

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 testators 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 testators 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 Leticias family to
live with him and they took care of him. During that
time, the testators 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.

2.

execution of the will. It added that his sexual exhibitionism and

Non-compliance
with
the
legal
solemnities and formalities in the
execution and attestation of the will;
and

unhygienic, crude and impolite ways[6] did not make him a person
of unsound mind.

Mental incapacity of the testator at

the time of the execution of the will as
he was then in an advanced state of
senility
Hence, this Petition.[7]

It then found these grounds extant and proven, and

accordingly disallowed probate.[5]

Issues
Petitioner raises the following issues for our consideration:

Ruling of the Court of Appeals

I.
Whether or not the findings of the probate court
are entitled to great respect.
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

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]

by this Court when, as in the instant case, the findings of fact of

In short, petitioner assails the CAs allowance of the probate
the appellate court differ from those of the trial court. [9]
of the will of Placido Valmonte.
The fact that public policy favors the probate of a will does
not necessarily mean that every will presented for probate should

This Courts Ruling

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 Petition has no merit.

the Civil Code states the instances when a will may be disallowed,
Main Issue:

Probate of a Will

At the outset, we stress that only questions of law may be

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;

raised in a Petition for Review under Section 1 of Rule 45 of the

(2)
If the testator was insane, or
otherwise mentally incapable of making a will, at
the time of its execution;

Rules of Court. As an exception, however, the evidence presented

(3)
If it was executed through force or
under duress, or the influence of fear, or threats;

during the trial may be examined and the factual matters resolved

(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

Valmontes will by imputing fraud in its execution and challenging
the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will

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

Petitioner does not dispute the due observance of the formalities in

experience[12] for an old man with a severe psychological condition
the execution of the will, but maintains that the circumstances
to have willingly signed a last will and testament.
surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the testators wife and sole
We are not convinced. Fraud is a trick, secret device, false
beneficiary, conspired with the notary public and the three
statement, or pretense, by which the subject of it is cheated. It
attesting witnesses in deceiving Placido to sign it. Deception is

may be of such character that the testator is misled or deceived as

It is a settled doctrine that the omission of some relatives

to the nature or contents of the document which he executes, or it

does not affect the due execution of a will. [16] That the testator was

may relate to some extrinsic fact, in consequence of the deception

tricked into signing it was not sufficiently established by the fact that

regarding which the testator is led to make a certain will which, but

he had instituted his wife, who was more than fifty years his junior,

for the fraud, he would not have made.[13]

as the sole beneficiary; and disregarded petitioner and her family,

who were the ones who had taken the cudgels of taking care of

We stress that the party challenging the will bears the

[the testator] in his twilight years.[17]

burden of proving the existence of fraud at the time of its

execution.[14] The burden to show otherwise shifts to the proponent

Moreover, as correctly ruled by the appellate court, the

of the will only upon a showing of credible evidence of fraud.

conflict between the dates appearing on the will does not

[15]

Unfortunately

in

this

case,

other

than

the

self-serving

allegations of petitioner, no evidence of fraud was ever presented.

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

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.
xxxxxxxxx
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:

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 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 15 th 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?
A We returned on the 9th 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 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

Q Why did you have to go to the office of Atty. Floro

Sarmiento, three times?

showing that the witnesses of the proponent stood to receive any

xxxxxxxxx

benefit from the allowance of the will. The testimonies of the three

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 15 th 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.

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.

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

According to Article 799, the three things that the testator

disposition becomes irrelevant.
must have the ability to know to be considered of sound mind are
Worth reiterating in determining soundness
as follows: (1) the nature of the estate to be disposed of, (2) the
is Alsua-Betts v. CA,[25] which held thus:
proper objects of the testators bounty, and (3) the character of the

of mind

"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.