that one or two fountain pens only should have been used instead of three as testified to
G.R. No. L-2396 December 11, 1950
In the matter of the petition for the probate of the will of the deceased Pablo M. Roxas.
NATIVIDAD I. VDA. DE ROXAS, petitioner-appellant,
vs.
MARIA ROXAS, ET AL., oppositors-appellees.
PARAS, J.:
Pablo Roxas died in the municipality of Bulacan, Province of Bulacan, on July 14, 1946. On
August 10, 1946, Natividad Icasiano (the widow) filed in the Court of First Instance of Bulacan a
petition for the probate of a will alleged to have been left by Pablo Roxas, devising all his
properties to Natividad Icasiano and Reynaldo Roxas (an adulterous son). The will is
typewritten and worded in Tagalog and the attesting witnesses are Jacinto Y. Enriquez,
Fortunato R. Gupit and Martin Rodrigo. The will is dated, in the body, January 1, 1945. No date
is given in the attestation clause.
An opposition was filed by Maria Roxas and Pedro Roxas (sister and brother of Pablo Roxas) on
the ground that the alleged will was not executed and attested as required by law, and that, in
any event, it was intended as a mere formal request which was, however, subsequently
revoked as shown by the fact that it was crumpled with intent to destroy. Upon motion for bill
of particulars filed by the petitioner (Natividad Icasiano), the oppositors (Maria and Pedro
Roxas) alleged that the will is vitiated by the following formal defects: "(a) The alleged last will
and testament was not attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other; (b) The testator and the instrumental witnesses did
not sign the only page of the will on the left margin, nor was the page numbered in letters on
the upper part of the sheet; (c) The attestation clause does not state that the alleged witnesses
thereto witnessed and signed the will in the presence of the testator and of each other."
After trial, the Court of First Instance of Bulacan rendered a decision disallowing the probate of
the will. The lower court concluded that the body of the will was typewritten and signed by the
testator on a date or occasion different from and anterior to the date or occasion when the
attestation clause was typewritten and signed by the attesting witnesses, with the result that
the will was not signed by the testator in the presence of the witnesses, and by the latter in the
presence of the testator and of each other, as required in section 618 of Act No. 190 as
amended by Act No. 2645. This conclusion was motivated by the following circumstances
enumerated in the decision: "(a) That the paper on which the alleged will, Exhibit D, is written
has been folded and crumpled; (b) That the body of the will was typewritten before the
signature of Pablo M. Roxas had been affixed thereon and before it had been folded and
crumpled; (c) That after it had been folded and crumpled, it was smoothened in order to
eliminate or minimize as much as possible the folds and wrinkles, preparatory, to the writing of
the attestation clause on the same typewriter which was used in typewriting the body of the
will; (d) That the attestation clause was typewritten, single space, and a deliberate effort was
exerted to make it appear that it was written by the testator himself at the same time with the
body thereof, but the tell-tale letter "o" and the inequality of the marginal alignments of both
the body and the attestation clause have betrayed the vain effort; (e) That the texture and fiber
of the paper on the portion on which the signature of the attesting witnesses were affixed had
been disturbed and affected by the interval of time and the ordinary exposure of the paper to
the atmosphere between the signing of the testator and the attesting witnesses, which fact is
revealed by the greater penetrations of the ink in the signature of Pablo M. Roxas; ( f ) That
had the testator and the attesting witnesses signed on the same occasion, the probability was
unanimously by the expert witnesses both for the proponent and the oppositors."
The petitioner has appealed. Her counsel insist that the testimony, unanimous in all essential
points, of the three attesting witnesses should be given controlling weight. Counsel for
oppositors, upon the other hand, argue that the testimony of Maria Roxas, in conjunction with
the opinions of experts, should prevail.
The testimony of Fortunato Gupit, Jacinto Y. Enriquez and Martin Rodrigo (the attesting
witnesses) tends to show that they were in the house of Rosario Vda. de Icasiano (mother-in-
law of Gupit) in barrio Sta. Ana, municipality of Bulacan, Province of Bulacan, on January 1,
1945. Between two and three in the afternoon Pablo Roxas showed up and, approaching Gupit
who was then reading a book, asked him to go to the sala with Roxas. The latter got from his
hip pocket a folded sheet of paper (the will here in question) and asked Gupit to read it. In the
meantime Roxas proceeded to the dining hall where a mahjong game was being played and
called Enriquez and Rodrigo who thereupon went to the sala and were asked to read the will
previously handed to Gupit. Roxas then made the request for the three to act as witnesses.
Roxas, using his fountain pen, signed it in the presence of Gupit, Enriquez and Rodrigo. Gupit
then signed with his own pen and, noticing that the ink in his signature was spreading, asked
for a blotter. Roxas got a blotter from a nearby writing desk and gave it to Gupit who
accordingly applied it. Enriquez and Rodrigo, using the pen of Gupit, took their turns in signing
the will, the blotter being also applied. Thereafter, Roxas refolded the document and inserted
the same in his hip pocket.
Fortunato A. Gupit is a certified public accountant. He is the dean of the College of Business
Administration and the comptroller of the Arellano University. Jacinto Y. Enriquez comes from a
distinguished family in Bulacan and is a student in the University of Santo Tomas. Martin
Rodrigo is a businessman and landowner. Gupit is the husband of a half-sister of the petitioner;
Enriquez is a second cousin of petitioner; and Rodrigo is the husband of a deceased cousin of
the petitioner.
The testimony of oppositor Maria Roxas tends to show that on December 30, 1944, Pablo
Roxas asked from her a sheet of typewriting paper. At about one in the afternoon of January 1,
1945, Pablo Roxas came back to the house of Maria and showed the will in question signed by
Pablo, clean and uncrumpled, and without any attestation clause. Pablo executed the will as it
was shown to Maria, as a mere ruse to make the petitioner continue loving Reynaldo Roxas
(adulterous son of Pablo Roxas).
Two handwriting experts (Amadeo M. Cabe and Jose C. Espinosa) were employed by the
oppositors and their testimony tends to support the theory that the body of the will up to the
signature of Pablo Roxas was typewritten on a plain sheet of paper; that the sheet was
subsequently removed from the typewriter and signed by the testator; that the sheet, after
being crumpled and folded, was reinserted in the typewriter for the insertion of the attestation
clause which was signed afterwards by the three attesting witnesses. This expert opinion is
based more or less on the circumstance enumerated in the appealed decision hereinbefore
quoted, except that while the trial court observed that there are "greater penetrations of the
ink in the signature of Pablo M. Roxas," Espinosa and Cabe found that there is greater diffusion
of ink in the signatures of the attesting witnesses.
After a careful examination of the record in the light of the contentions of the parties, we have
no hesitancy in holding that the appealed decision is erroneous. This case is one in which the
will is couched in a language known and spoken by the testator and the signatures of the three
attesting witnesses are admittedly genuine. Such being the situation, the question that arises, Too much emphasis and effort, through experts Cabe and Espinosa, had been placed on the
far from requiring the intervention of experts, is one merely of credibility of witnesses. In our supposition that after the body of the will had been typewritten, the sheet was removed from
opinion, the testimony of the three attesting witnesses — confirmatory of the due execution of the machine and, after having been folded and crumpled, it was replaced in the typewriter for
the will — deserves full credit, not only because of their qualifications (hereinbefore pointed the insertion of the attestation clause. The law does not require that the will should be written
out) but because their reputation for probity has not been impeached. The fact that they may in one continuous act; and the supposition does not necessarily, much less conclusively, prove
have some relationship with the petitioner is not sufficient to warrant the belief that they did that the signing was not done on one occasion. For the difference in the ink diffusions and
not tell the truth. The law, in the first place, does not bar relatives either of the testator of the penetrations between the signatures of the testator and those of the three attesting witnesses
heirs or legatees from acting as witnesses. In the second place, in the normal course of things may not be due solely to the folding and crumpling of the sheet on which the will is written,
and to be sure that the witnesses would not let the beneficiaries down, the testator may be but on such other factors as class of ink, class of pens, habit of writing, condition of paper, and
inclined to employ, as attesting witnesses, relatives of such beneficiaries, if not wholly the use of blotter. Speculations on these matters should give way to the positive declarations
disinterested persons. In the third place, under the will, Reynaldo Roxas (adulterous son of of the attesting witnesses. The law impliedly recognizes the almost conclusive weight of the
Pablo Roxas) is named a legatee on equal footing with the petitioner, and the attesting testimony of attesting witnesses when it provides that "if the will is contested, all the
witnesses are not related whatsoever with him. In the fourth place, whereas the three subscribing witnesses present in the Philippines and not insane, must be produced and
attesting witnesses have no direct interest in the subject matter of the will, oppositor Maria examined, and the death, absence, or insanity of any of them must be satisfactorily shown to
Roxas, like the other oppositor Pedro Roxas, is an intestate heir of Pablo Roxas and, therefore, the court." (Section 11, Rule 77, Rules of Court.)
naturally interested in having the probate of said will disallowed.lawphil.net
The contention made by the appellees in their opposition that the will was revoked by the
Ordinarily, the findings of fact of a trial court, because of the benefit of having seen and heard testator when he crumpled the same, requires no serious consideration, in view of their failure
the witnesses, are entitled to great weight. But, in this case, the lower court relied on the to show that the crumpling was caused with the intention to revoke. Appellees' reference to
conclusions of experts, and this is obvious from (1) its recital of the circumstances that led it to other formal defects of the will (other than that hereinbefore disposed of) also needs no
believe that the will was not executed in accordance with law, and (2) its failure to analyze the inquiry, because it is not pressed herein.
oral evidence.
Wherefore, the appealed judgment is reversed and the will in question is hereby declared
It is alleged that the testator had another adulterous child (Aida), sister of Reynaldo, and it is probated. So ordered, with costs against the appellees.
unnatural that he would have failed to provide for said child, if not for his brother and sister
(herein oppositors) in the will, if the testator really intended to dispose of his properties under
said will. This is again a mere conjecture which should not prevail over the testimony of the
attesting witnesses, not to mention the fact that there is nothing in the record to show
conclusively that the testator ever admitted that Aida is another adulterous child, coupled with
the circumstance that the latter did not live with the testator. As to the omission of the herein
oppositors, there might have been a reason known only to the testator why they should be
excluded, or why they need no participation.
That the will in question was written on poor kind of stationery, or that it was not prepared by
a lawyer or notary public, or that no copies were made, is of no moment. It should be borne in
mind that the will was executed in January, 1945, when everything was practically in confusion
due to the impending battles for the liberation of the Philippines, and when paper supply was
almost exhausted. Aside from the fact that a will need not be prepared by or acknowledged
before a notary public, it is not improbable that the testator, before the date of the will in
question, had prepared or seen previous wills and therefore was familiar with its wording and
legal formalities, and that due to the abnormal time he undertook to prepare said will without
the aid of a lawyer or notary public and without making copies thereof.
We do not venture to impute bias to the experts introduced during the trial, but we hasten to
state that the positive testimony of the three attesting witnesses ought to prevail over the
expert opinions which cannot be mathematically precise but which, on the contrary, are
"subject to inherent infirmities." In the instant case, it is significant that while Amadeo M. Cabe
observed that four different fountain pens were used in signing the will, Jose C. Espinosa was
unable to determine whether the same pen was used for all the signatures. Upon the other
hand, Prof. H. Otley Beyer believes that one pen was used for the testator's signature, and G.R. No. L-13431 November 12, 1919
another pen for the signatures of the witnesses.
In re will of Ana Abangan. accompanying the will in question, the signatures of the testatrix and of the three witnesses on
GERTRUDIS ABANGAN, executrix-appellee, the margin and the numbering of the pages of the sheet are formalities not required by the
vs. statute. Moreover, referring specially to the signature of the testatrix, we can add that same is
ANASTACIA ABANGAN, ET AL., opponents-appellants. 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.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee. 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
AVANCEÑA, J.: by the testator and the witnesses, or be paged.
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana The object of the solemnities surrounding the execution of wills is to close the door against
Abangan's will executed July, 1916. From this decision the opponent's appealed. bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which and authenticity. Therefore the laws on this subject should be interpreted in such a way as to
contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban attain these primordal ends. But, on the other hand, also one must not lose sight of the fact
(in the name and under the direction of the testatrix) and by three witnesses. The following that it is not the object of the law to restrain and curtail the exercise of the right to make a will.
sheet contains only the attestation clause duly signed at the bottom by the three instrumental So when an interpretation already given assures such ends, any other interpretation
witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and
witnesses, nor numbered by letters; and these omissions, according to appellants' contention, frustative of the testator's last will, must be disregarded. lawphil.net
are defects whereby the probate of the will should have been denied. We are of the opinion As another ground for this appeal, it is alleged the records do not show that the testarix knew
that the will was duly admitted to probate. the dialect in which the will is written. But the circumstance appearing in the will itself that
In requiring that each and every sheet of the will should also be signed on the left margin by same was executed in the city of Cebu and in the dialect of this locality where the testatrix was
the testator and three witnesses in the presence of each other, Act No. 2645 (which is the one a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew
applicable in the case) evidently has for its object (referring to the body of the will itself) to this dialect in which this will is written.
avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But For the foregoing considerations, the judgment appealed from is hereby affirmed with costs
when these dispositions are wholly written on only one sheet signed at the bottom by the against the appellants. So ordered.
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 G.R. No. L-28946 January 16, 1929
whether or not this clause is an essential part of the will, we hold that in the one
In re estate of Piraso, deceased. whether or not the Igorrote or Inibaloi dialect is a cultivated language and used as a means of
SIXTO ACOP, petitioner-appellant, communication in writing, and whether or not the testator Piraso knew the Ilocano dialect well
vs. enough to understand a will written in said dialect. The fact is, we repeat, that it is quite
SALMING PIRASO, ET AL., opponents-appellees. certain that the instrument Exhibit A was written in English which the supposed testator Piraso
did not know, and this is sufficient to invalidate said will according to the clear and positive
Gibbs and McDonough and Roman Ozaeta for appellant.
provisions of the law, and inevitably prevents its probate.
Adolfo A. Scheerer for appellees.
The judgment appealed from is affirmed, with the costs of this instance against the appellant.
ROMUALDEZ, J.:
So ordered.
This appeal was taken from the judgment of the Court of First Instance of Benguet, denying the
probate of the instrument Exhibit A, as the last will and testament of the deceased Piraso.
The proponent-appellant assigns the following as alleged errors of the lower court:
1. In holding that in order to be valid the will in question should have been drawn up
in the Ilocano dialect.
2. In not holding that the testator Piraso did not know the Ilocano dialect well
enough to understand a will drawn up in said dialect.
3. In refusing to admit the will in question to probate.
The fundamental errors assigned refer chiefly to the part of the judgment which reads as
follows:
The evidence shows that Piraso knew how to speak the Ilocano dialect, although
imperfectly, and could make himself understood in that dialect, and the court is of
the opinion that his will should have been written in that dialect.
Such statements were not unnecessary for the decision of the case, once it has been proved
without contradiction, that the said deceased Piraso did not know English, in which language
the instrument Exhibit A, alleged to be his will, is drawn. Section 628 of the Code of Civil
Procedure, strictly provides that:
"No will, except as provides in the preceding section" (as to wills executed by a Spaniard or a
resident of the Philippine Islands, before the present Code of Civil Procedure went into effect),
"shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be
written in the language or dialect known by the testator," etc. (Emphasis supplied.) Nor can the
presumption in favor of the will established by this court in Abangan vs. Abangan (40 Phil.,
476), to the effect that the testator is presumed to know the dialect of the locality where he
resides, unless there is proof to the contrary, even he invoked in support of the probate of said
document Exhibit A, as a will, because, in the instant case, not only is it not proven that English
is the language of the City of Baguio where the deceased Piraso lived and where Exhibit A was
drawn, but that the record contains positive proof that said Piraso knew no other language
than the Igorrote dialect, with a smattering of Ilocano; that is, he did not know the English
language in which Exhibit A is written. So that even if such a presumption could have been
raised in this case it would have been wholly contradicted and destroyed.
We consider the other question raised in this appeal needless and immaterial to the
adjudication of this case, it having been, as it was, proven, that the instrument in question
could not be probated as the last will and testament of the deceased Piraso, having been
written in the English language with which the latter was unacquainted.
Such a result based upon solidly established facts would be the same whether or not it be A.M. No. 2026-CFI December 19, 1981
technically held that said will, in order to be valid, must be written in the Ilocano dialect;
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate a
will, which on its face is void because it is written in English, a language not known to the
illiterate testatrix, and which is probably a forged will because she and the attesting witnesses
did not appear before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in
the Court of Appeals which reveal the following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
childless. They reared a boy named Agapito who used the surname Suroza and who considered
them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of
CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when
Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went
abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as
his guardian in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of
the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to
be his guardian in another proceeding. Arsenia tried to prove that Nenita was living separately
from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito
(pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed
Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying
in a veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a
child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz
(apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador Suroza
who brought her up as a supposed daughter of Agapito and as her granddaughter (pp. 23-26,
Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina
but was not legally adopted by Agapito. She married Oscar Medrano and is residing at 7666
J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas
Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73
years old. That will which is in English was thumbmarked by her. She was illiterate. Her letters
in English to the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo).
In that wig, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of
her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a
150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of
testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo)
and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar,
Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for
the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court,
Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at
the hearing before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the
following day, April 1, Judge Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from
the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro,
the custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing
a deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V.
Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement
of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in
the said proceeding a motion to set aside the order of April 11 ejecting them. They alleged that
the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named
Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the
decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned the
probate court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn,
were claiming Marcelina's estate, he issued on April 23 an order probating her supposed will
wherein Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings,
admit opposition with counter-petition for administration and preliminary injunction". Nenita
in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will
was not duly executed and attested, that it was procured by means of undue influence
employed by Marina and Marilyn and that the thumbmarks of the testatrix were procured by
fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the preterition
of Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina,
who swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April
25, an opposition to the probate of the will and a counter-petition for letters of administration.
In that opposition, Nenita assailed the due execution of the will and stated the names and
addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita
was not aware of the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece,
who swore that Marcelina never executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn
was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz
and that Agapito was not Marcelina's sonbut merely an anak-anakan who was not legally
adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the
issuance of letters of administration because of the non-appearance of her counsel at the
hearing. She moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V.
Suroza reiterated her contention that the alleged will is void because Marcelina did not appear
before the notary and because it is written in English which is not known to her (pp. 208-209,
Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita
(p. 284, Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed a case to
annul" the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs.
Paje and Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his
order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had
delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary
proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court,
Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The
complainant reiterated her contention that the testatrix was illiterate as shown by the fact that
she affixed her thumbmark to the will and that she did not know English, the language in
which the win was written. (In the decree of probate Judge Honrado did not make any finding
that the will was written in a language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a
son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was
preterited in the will, did not take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the
testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy
and that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her
cohorts to withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to
the record of the probate case by alleging that it was useless for Nenita to oppose the probate
since Judge Honrado would not change his decision. Nenita also said that Evangeline
insinuated that if she (Nenita) had ten thousand pesos, the case might be decided in her favor.
Evangeline allegedly advised Nenita to desist from claiming the properties of the testatrix
because she (Nenita) had no rights thereto and, should she persist, she might lose her pension
from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the
complaint. He merely pointed to the fact that Nenita did not appeal from the decree of
probate and that in a motion dated July 6, 1976 she asked for a thirty day period within which
to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter
did not mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from
having access to the record of the testamentary proceeding. Evangeline was not the custodian
of the record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she
(Evangeline) said that the sum of ten thousand pesos was needed in order that Nenita could
get a favorable decision. Evangeline also denied that she has any knowledge of Nenita's
pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to attention of this Court in the
Court Administrator's memorandum of September 25, 1980. The case was referred to Justice
Juan A. Sison of the Court of Appeals for investigation, report and recommendation. He
submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition
for certiorari and prohibition wherein she prayed that the will, the decree of probate and all
the proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He
swore that the testatrix and the three attesting witnesses did not appear before him and that
he notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer
would bring to the notary the testatrix and the witnesses but the lawyer never complied with
his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her
failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs.
Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper
disposition of the testate case which might have resulted in a miscarriage of justice because
the decedent's legal heirs and not the instituted heiress in the void win should have inherited
the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory
order or rendering a manifestly unjust judgment or interlocutory order by reason of
inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance for serious
misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful
intent, not a mere error of judgment. "For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt or inspired by an intention
to violate the law, or were in persistent disregard of well-known legal rules" (In relmpeachment
of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in the performance of his duties that diligence,
prudence and circumspection which the law requires in the rendition of any public service ( In
re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in English
and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the
will is void.
In the opening paragraph of the will, it was stated that English was a language "understood
and known" to the testatrix. But in its concluding paragraph, it was stated that the will was
read to the testatrix "and translated into Filipino language". (p. 16, Record of testate case).
That could only mean that the will was written in a language not known to the illiterate
testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil
Code that every will must be executed in a language or dialect known to the testator. Thus, a
will written in English, which was not known to the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator"
instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only the anomaly
as to the language of the will but also that there was something wrong in instituting the
supposed granddaughter as sole heiress and giving nothing at all to her supposed father who
was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent
judge could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted
the hearing on the probate of the will so that he could have ascertained whether the will was
validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine
equivalent to his salary for one month is imposed on respondent judge (his compulsory
retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic because she is no longer
employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao
City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-
CFI November 21, 1980, 101 SCRA 225).
SO ORDERED.

G.R. No. 42258 September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of
January 29, 1935, praying for the reconsideration of the decision of the court and that of the
same date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the following facts relied upon in her
pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and surname on the
spaces of the will where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix on the date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer in a physical
or mental condition to make it.
We have again reviewed the evidence to determine once more whether the errors assigned by
the oppositor in her brief have not been duly considered, whether some fact or detail which
might have led us to another conclusion has been overlooked, or whether the conclusions
arrived at in our decision are not supported by the evidence. We have found that the testatrix
Leoncia Tolentino, notwithstanding her advanced age of 92 years, was in good health until
September 1, 1933. She had a slight cold on said date for which reason she was visited by her
physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and
found her still suffering from said illness but there was no indication that she had but a few
days to live. She ate comparatively well and conserved her mind and memory at least long
after noon of September 7, 1933. She took her last nourishment of milk in the morning of the
following day, September 8, 1933, and death did not come to her until 11 o'clock sharp that
morning.
The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock
noon on September 7, 1933, in the house of the testatrix Leoncia Tolentino, after she had
expressed to said attorney her desire to make a will and bequeath her property to the
petitioner Victorio Payad in compensation according to her, for his diligent and faithful services
rendered to her. Victorio Payad had grown up under the care of the testatrix who had been in
her home from childhood. The will was written by Attorney Almario in his own handwriting,
and was written in Spanish because he had been instructed to do so by the testatrix. It was
later read to her in the presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other
persons who were then present. The testatrix approved all the contents of the document and
requested Attorney Almario to write her name where she had to sign by means of her
thumbmark in view of the fact that her fingers no longer had the necessary strength to hold a
pen. She did after having taken the pen and tried to sign without anybody's help. Attorney
Almario proceeded to write the name of the testatrix on the three pages composing the will
and the testatrix placed her thumbmark on said writing with the help of said attorney, said
help consisting in guiding her thumb in order to place the mark between her name and
surname, after she herself had moistened the tip of her thumb with which she made such
mark, on the ink pad which was brought to her for said purpose. Said attorney later signed the
three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and Jose
Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly
under the same circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the will on
September 7, 1983, and that she never made said will because she was no longer physically or
mentally in a condition do so, the oppositor cites the testimony of Julian Rodriguez, Gliceria
Quisonia, Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the
morning of September 7, 1933, in the house of the deceased where they were then living, and
that the first time that they saw him there was at about 12 o'clock noon on September 8th of
said year, when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that
occasion Almario arrived there accompanied only by woman named Pacing. They did not state
that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the
instrumental witnesses of the will. Said two witnesses, however, could not but admit that their
room was situated at the other end of the rooms occupied by the deceased herself and by the
petitioner Victorio Payad, and that their said room and that of Victorio Payad are separated by
the stairs of the house; that Gliceria Quisonia saw the deceased only once on the 7th and
twice on the 8th, and that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12
o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that in the morning of
September 7th, she prepared the noonday meal in the kitchen which was situated under the
house. Under such circumstances it is not strange that the two did not see the testatrix when,
according to the evidence for the petitioner, she made her will and signed it by means of her
thumbmark. In order to be able to see her and also Almario and the instrumental witnesses of
the will, on that occasion, it was necessary for them to enter the room where the deceased
was, or at least the adjoining room where the will was prepared by Attorney Almario, but they
did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so
weak that she could not move and that she could hardly be understood because she could no
longer enunciate, making it understood thereby, that in such condition it was absolutely
impossible for her to make any will. The attorney for the oppositor insists likewise and more so
because, according to him and his witness Paz de Leon, two days before the death of the
testatrix, or on September 6, 1933, she could not even open her eyes or make herself
understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the
petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the
will because, to corroborate them, we have of record the testimony of the physician of the
deceased and the accountant Ventura Loreto who are two disinterested witnesses, inasmuch
as the outcome of these proceedings does not affect them in the least. The two testified that
two, three or four days before the death of the testatrix, they visited her in her home, the
former professionally, and the latter as an acquaintance, and they then found her not so ill as
to be unable to move or hold a conversation. They stated that she spoke to them intelligently;
that she answered all the questions which they had put to her, and that she could still move in
spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion
for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That upon her
death, the deceased left a letter signed by herself, placed in a stamped envelope and
addressed to Teodoro R. Yangco, with instructions not to open it until after her death; (2) that
there are witnesses competent to testify on the letter in question, in addition to other
evidence discovered later, which could not be presented at the trial; (3) that in the letter left by
the deceased, she transfers all her property to Teodoro R. Yangco stating therein that, upon her
death, all the property in question should become Yangco's. From this alleged fact, the
oppositor infers that the deceased never had and could not have had the intention to make
the will in question, and (4) that said oppositor knew of the existence of said letter only after
her former attorney, Alejandro Panis, had been informed thereof in May, 1935, by one of
Teodoro R. Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed another
supplementary motion alleging that she had discovered some additional new evidence
consisting in the affidavit of Attorney Gabino Fernando Viola wherein the latter affirms that
Victorio Payad had called him on September 5, 1933, to prepare the will of the deceased but
he did not do so because after seeing her he had been convinced that she could not make a
will because she had lost her speech and her eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the
facts alleged by the oppositor, are attached to both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly
discovered evidence, and are not admissible to warrant the holding of a new trial, because the
oppositor had been informed of the facts affirmed by Attorney Jose Cortes in his affidavit long
before this case was decided by this court. It is stated in said affidavit that in May, 1935,
Attorney Jose Cortes revealed to the attorney for oppositor the fact that the deceased had left
a letter whereby she transferred all her property to Teodoro R. Yangco, and the judgment was
rendered only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly discovered
evidence inasmuch as the judgment of the lower court was favorable to her. She, however,
overlooks the fact that she also appealed from the decision of the lower court and it was her
duty, under the circumstances, to inform this court of the discovery of said allegedly newly
discovered evidence and to take advantage of the effects thereof because, by so doing, she
could better support her claim that the testatrix made no will, much less the will in question.
Said evidence, is not new and is not of the nature of that which gives rise to a new trial
because, under the law, in order that evidence may be considered newly discovered evidence
and may serve as a ground for a new trial, it is necessary (a) that it could not have been
discovered in time, even by the exercise of due diligence; (b) that it be material, and (c) that it
also be of such a character as probably to change the result if admitted (section 497, Act No.
190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the sense that, even
considering it newly discovered evidence, it will be sufficient to support the decision of the
lower court and modify that of this court. It is simply hearsay or, at most, corroborative
evidence. The letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes
of the law, be considered important or material evidence but this court has not the letter in
question before it, and no attempt was ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is
not more competent than that of Attorney Jose Cortes because, granting that when he was
called by Victorio Payad to help the deceased Leoncia Tolentino to make her will and he went
to her house on September 5, 1933, the deceased was almost unconscious, was unintelligible
and could not speak, it does not necessarily mean that on the day she made her will,
September 7, 1933, she had not recovered consciousness and all her mental faculties to
capacitate her to dispose of all her property. What Attorney Gabino Fernando Viola may testify
pursuant to his affidavit in question is not and can not be newly discovered evidence of the
character provided for by law, not only because it does not exclude the possibility that testatrix
had somewhat improved in health, which possibility became a reality at the time she made her
will because she was then in the full enjoyment of her mental faculties, according to the
testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and Marciano
Almario, but also because during the hearing of these proceedings in the Court of First
Instance, Attorney Viola was present, and the oppositor then could have very well called him
to the witness stand, inasmuch as her attorney already knew what Attorney Viola was to testify
about, yet she did not call him. The last fact is shown by the following excerpt from pages 148
to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like
to present as the last witness Attorney Fernando Viola who was called by the
petitioner Victoria Payad to prepare the will of the deceased in his favor on
September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr.
PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom you wish to call to
the witness stand? — Mr. PANIS: Your Honor, he is busy in the branch, presided over
by Judge Sison.
COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your
Honor. If the other party, Your Honor, is willing to admit what said witness is going to
testify in the sense that said Attorney Fernando Viola went to the house of the
deceased on September 5, 1933, for the purpose of talking to the deceased to draft
the will upon petition of Mr. Victorio Payad; if the other party admits that, then I am
going waive the presentation of the witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other party would not
admit that proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola,
without prejudice to the other party's calling the witness it may wish to call.
COURT: The court reserves to the oppositor its right to call Attorney Viola to the
witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her
favor, it might have been because she considered his testimony unimportant and unnecessary,
and at the present stage of the proceedings, it is already too late to claim that what said
attorney may now testify is a newly discovered evidence.
For the foregoing considerations, those stated by this court in the original decision, and the
additional reason that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a
new trial on the ground of newly discovered evidence is limited to ordinary cases pending in
this court on bills of exceptions, the motion for reconsideration and a new trial filed by the
oppositor are hereby denied, ordering that the record be remanded immediately to the lower
court. So ordered.
YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as
to require dexterity that can be expected of very few persons; testators should not be required
to possess the skill of trained officers.
And as to the validity of the thumbprints as signature, the SC held that it has been held in a
long line of cases that a thumbprint is always a valid and sufficient signature for the purpose of
complying with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. A
thumbprint is considered as a valid and sufficient signature in complying with
the requirements of the article.

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:
Matias v. Salud We, the undersigned, by these presents to declare that the foregoing testament of
L-10751, 23 June 1958 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
FACTS:
the continuation of this attestation clause; this will is written in Ilocano dialect which
The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina Raquel was is spoken and understood by the testator, and it bears the corresponding number in
suffering from herpes zoster that afflicted the right arm and shoulder of the testatrix, which letter which compose of three pages and all them were signed in the presence of the
made writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina testator and witnesses, and the witnesses in the presence of the testator and all and
attempted to sign, but since it was so painful she just managed to thumbmarked the foot of each and every one of us witnesses.
the document and the left margin at each page. The parties opposing the probate of the will
In testimony, whereof, we sign this statement, this the third day of January, one
contended that the will was void due to the irregularities in the execution thereof.
thousand nine hundred forty three, (1943) A.D.
One of the points raised by the oppositors was that the finger mark can not be regarded as the
decedent’s valid signature as it does not show distinct identifying ridgelines. And since the
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
finger mark was an invalid signature, there must appear in the attestation clause that
another person wrote the testator’s name at his request.
ISSUE: (Sgd.) BIBIANA ILLEGIBLE
W/N the will was valid.
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
HELD: 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. G.R. No. L-15153 August 31, 1960
The cross cannot and does not have the trustworthiness of a thumbmark. In the Matter of the summary settlement of the Estate of the deceased
What has been said makes it unnecessary for us to determine there is a sufficient recital in the ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
attestation clause as to the signing of the will by the testator in the presence of the witnesses, vs.
and by the latter in the presence of the testator and of each other. EUSEBIA ABELLANA, et al., oppositors-appellants.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered. T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate
the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals
where the following assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding that the
supposed testament, Exh. "A", was signed in accordance with law; and in admitting
the will to probate.
In view of the fact that the appeal involves a question of law the said court has certified the
case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is sought to
be probated, is written in the Spanish language and consists of two (2) typewritten
pages (pages 4 and 5 of the record) double space. The first page is signed by Juan
Bello and under his name appears typewritten "Por la testadora Anacleta Abellana,
residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the
second page appears the signature of three (3) instrumental witnesses Blas
 Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe,
signature of T. de los Santos and below his signature is his official designation as the Richard Doe." All this must be written by the witness signing at the request of the
notary public who notarized the said testament. On the first page on the left margin testator.
of the said instrument also appear the signatures of the instrumental witnesses. On
Therefore, under the law now in force, the witness Naval A. Vidal should have
the second page, which is the last page of said last Will and Testament, also appears
written at the bottom of the will the full name of the testator and his own name in
the signature of the three (3) instrumental witnesses and on that second page on the
one forms given above. He did not do so, however, and this is failure to comply with
left margin appears the signature of Juan Bello under whose name appears
the law is a substantial defect which affects the validity of the will and precludes its
handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is
allowance, notwithstanding the fact that no one appeared to oppose it.
duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis
supplied) The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case
of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly
The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello
appears that the name of the testatrix was signed at her express direction; it is unimportant
above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de
whether the person who writes the name of the testatrix signs his own or not. Cases of the
Zamboanga," comply with the requirements of law prescribing the manner in which a will shall
same import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil.,
be executed?
330; Garcia vs. Lacuesta, 90 Phil., 489).
The present law, Article 805 of the Civil Code, in part provides as follows:
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under
Every will, other than a holographic will, must be subscribed at the end thereof by the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply
the testator himself or by the testator's name written by some other person in his with the express requirement in the law that the testator must himself sign the will, or that his
presence, and by his express direction, and attested and subscribed by three or more name be affixed thereto by some other person in his presence and by his express direction.
credible witness in the presence of the testator and of one another. (Emphasis
It appearing that the above provision of the law has not been complied with, we are
supplied.)
constrained to declare that the said will of the deceased Anacleta Abellana may not be
The clause "must be subscribed at the end thereof by the testator himself or by the testator's admitted to probate.
name written by some other person in his presence and by his express direction," is practically
WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate
the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which
of the will denied. With costs against petitioner.
reads as follows:
No will, except as provided in the preceding section shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be in writing and signed by
the testator, or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other. . . . (Emphasis supplied).
Note that the old law as well as the new require that the testator himself sign the will, or if he
cannot do so, the testator's name must be written by some other person in his presence and
by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro
Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure
that where the testator does not know how, or is unable, to sign, it will not be
sufficient that one of the attesting witnesses signs the will at the testator's request,
the notary certifying thereto as provided in Article 695 of the Civil Code, which, in
this respect, was modified by section 618 above referred to, but it is necessary that
the testator's name be written by the person signing in his stead in the place where
he could have signed if he knew how or was able to do so, and this in the testator's
presence and by his express direction; so that a will signed in a manner different
than that prescribed by law shall not be valid and will not be allowed to be probated.
Where a testator does not know how, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner:
 present in the small room where it was executed at the time when the testator and the other
subscribing witnesses attached their signatures; or whether at that time he was outside, some
eight or ten feet away, in a large room connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one in the outside room to see the
testator and the other subscribing witnesses in the act of attaching their signatures to the
instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the appeal
and necessitates the affirmance of the decree admitting the document to probate as the last
will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact
of vital importance in the determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that
one of the subscribing witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion
that had this subscribing witness been proven to have been in the outer room at the time
when the testator and the other subscribing witnesses attached their signatures to the
instrument in the inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will
is not whether they actually saw each other sign, but whether they might have been
seen each other sign, had they chosen to do so, considering their mental and
physical condition and position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at
the moment of the subscription of each signature, must be such that they may see each other
sign if they choose to do so. This, of course, does not mean that the testator and the
subscribing witnesses may be held to have executed the instrument in the presence of each
other if it appears that they would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions. The evidence in the case relied
G.R. No. L-5971 February 27, 1911
upon by the trial judge discloses that "at the moment when the witness Javellana signed the
BEATRIZ NERA, ET AL., plaintiffs-appellees, document he was actually and physically present and in such position with relation to Jaboneta
vs. that he could see everything that took place by merely casting his eyes in the proper direction
NARCISA RIMANDO, defendant-appellant. and without any physical obstruction to prevent his doing so." And the decision merely laid
Valerio Fontanilla and Andres Asprer for appellant. down the doctrine that the question whether the testator and the subscribing witnesses to an
Anacleto Diaz for appellees. alleged will sign the instrument in the presence of each other does not depend upon proof of
the fact that their eyes were actually cast upon the paper at the moment of its subscription by
CARSON, J.: each of them, but that at that moment existing conditions and their position with relation to
The only question raised by the evidence in this case as to the due execution of the instrument each other were such that by merely casting the eyes in the proper direction they could have
propounded as a will in the court below, is whether one of the subscribing witnesses was seen each other sign. To extend the doctrine further would open the door to the possibility of
all manner of fraud, substitution, and the like, and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.
[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, v. HON. AVELINO S. ROSAL, as Judge of the
Court of First Instance of Southern Leyte, (Branch III, Maasin), Respondent.
Erasmo M. Diola for Petitioner.
Aurelio S. Rosal in his own behalf.
SYNOPSIS
Petitioner filed a petition for probate of the will of the late Dorotea Perez and presented as
evidence the alleged will and the testimony of one of the subscribing witnesses thereto.
However, the trial court disallowed the will for want of formality in its execution because the
will was signed at the bottom of the page solely by the testatrix and at the left hand margin by
three instrumental witnesses. Respondent judge interpreted Article 805 of the Civil Code to
require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the
"end" of the will but all the three subscribing witnesses must also sign at the same place or at
the end, in the presence of the testatrix and of one another, because the attesting witnesses to
the will attest not merely the will itself but also the signature of the testator. Petitioner’s
motion for reconsideration and subsequent motion for the appointment of special
administrator were likewise denied.
On certiorari, the Supreme Court held a) that the objects of attestation and 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 a subscribing witness to be the same will executed by the
testatrix; and b) that the failure of the attestation clause to state the number of pages used in
writing the will would have been a fatal defect were it not for the fact that it is really and
actually composed of only two pages duly signed by the testatrix and her instrumental
witnesses.
Petition granted. Assailed orders of probate court set aside. Respondent court is ordered to
allow probate of the will and to conduct further proceedings.
SYLLABUS
1. CIVIL LAW; WILLS AND TESTAMENTS; NOTARIAL WILL; FORMALITIES; ATTESTATION AND
SUBSCRIPTION; DEFINED. — 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. 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).
2. ID.; ID.; ID.; ID.; ID.; FULLY COMPLIED WITH IN CASE AT BAR. — 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.
3. ID.; ID.; ID.; ID.; TREND TOWARDS LIBERAL CONSTRUCTION. — 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 provision on the law on wills in this project consists in the liberalization of the
manner of their execution with the end in view of giving the testator more freedom in
expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the
testator. 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).
4. ID.; ID.; ID.; ID.; ATTESTATION CLAUSE; FAILURE TO STATE THE NUMBER OF PAGES USED IN
WRITING THE WILL IS FATAL; EXCEPTION; CASE AT BAR. — The failure of the will’s attestation
clause to state the number of pages used in writing the will would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that it is really and
actually composed of only two pages duly signed by the testatrix and her instrumental
witnesses (See Singson v. Florentino, Et. Al. (192 Phil. 161, 1641 and Ino v. Ino, [11 SCRA 422,
429].)
DECISION
GUTIERREZ, JR., J.:
 For the validity of a formal notarial will, does Article 805 of the Civil Code require that the
This is a petition for review of the orders issued by the Court of First Instance of Southern testatrix and all the three instrumental and attesting witnesses sign at the end of the will and
Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for in the presence of the testatrix and of one another?
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 Article 805 of the Civil Code provides:jgc:chanrobles.com.ph
special administrator.
"Every will, other than a holographic will, must be subscribed at the end thereof by the
In the petition for probate filed with the respondent court, the petitioner attached the alleged testator himself or by the testator’s name written by some other person in his presence, and
last will and testament of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will by his express direction, and attested and subscribed by three or more credible witnesses in
consists of two pages. The first page contains the entire testamentary dispositions and is the presence of the testator and of one another.
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 "The testator or the person requested by him to write his name and the instrumental
and the acknowledgment is signed at the end of the attestation clause by the three 13) witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last,
attesting witnesses and at the left hand margin by the testatrix. on the left margin, and all the pages shall be numbered correlatively in letters placed on the
upper part of each page.
Since no opposition was filed after the petitioner’s compliance with the requirement of
publications, the trial court commissioned the branch clerk of court to receive the petitioner’s "The attestation shall state the number of pages used upon which the will is written, and the
evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, fact that the testator signed the will and every page thereof, or caused some other person to
one of the subscribing witnesses to the will, who testified on its genuineness and due write his name, under his express direction, in the presence of the instrumental witnesses, and
execution. that the latter witnessed and signed the with and the pages thereof in the presence of the
testator and of one another.
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 "If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
same order, the petitioner was also required to submit the names of the intestate heirs with them."cralaw virtua1aw library
their corresponding addresses so that they could be properly notified and could intervene in
the summary settlement of the estate. 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 all the
Instead of complying with the order of the trial court, the petitioner filed a manifestation three subscribing witnesses must also sign at the same place or at the end, in the presence of
and/or motion ex parte praying for a thirty-day period within which to deliberate on any step the testatrix and of one another because the attesting witnesses to a will attest not merely the
to be taken as a result of the disallowance of the will. He also asked that the ten-day period will itself but also the signature of the testator. It is not sufficient compliance to sign the page,
required by the court to submit the names of intestate heirs with their addresses be held in where the end of the will is found, at the left hand margin of that page.
abeyance.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it
The petitioner filed a motion for reconsideration of the order denying the probate of the will. a condition precedent or a matter of absolute necessity for the extrinsic validity of the will that
However, the motion together with the previous manifestation and/or motion could not be the signatures of the subscribing witnesses should be specifically located at the end of the will
acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at after the signature of the testatrix. He contends that it would be absurd that the legislature
Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge intended to place so heavy an import on the space or particular location where the signatures
Avelino S. Rosal assumed the position of presiding judge of the respondent court. 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.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
We find the petition meritorious.
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 Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its
appointment of special administrator was likewise denied because of the petitioner’s failure to end by the testator himself or by the testator’s name written by another person in his
comply with the order requiring him to submit the names of the intestate heirs and their presence, and by his express direction, and attested and subscribed by three or more credible
addresses. witnesses in the presence of the testator and of one another.

The petitioner decided to file the present petition. 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 law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
the testator exists as a fact. On the other hand, subscription is the signing of the witnesses’ which requires that the attestation clause shall state the number of pages or sheets upon
names upon the same paper for the purpose of identification of such paper as the will which which the will is written, which requirement has been held to be mandatory as an effective
was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911). 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
Insofar as the requirement of subscription is concerned, it is our considered view that the will Andrada, 42 Phil. 180; Uy Coque v. Navas L. Sioca, 43 Phil. 405; Gumban v. Gorecho, 50 Phil. 30;
in this case was subscribed in a manner which fully satisfies the purpose of identification. Quinto v. Morata, 54 Phil. 481; Echevarria v. 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
The signatures of the instrumental witnesses on the left margin of the first page of the will sheets or passes composing the will and that if this is missing or is omitted, it will have the
attested not only to the genuineness of the signature of the testatrix but also the due effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but
execution of the will as embodied in the attestation clause. 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,
While perfection in the drafting of a will may be desirable, unsubstantial departure from the however, the last part of the body of the will contains a statement that it is composed of eight
usual forms should be ignored, especially where the authenticity of the will is not assailed. pages, which circumstance in our opinion takes this case out of the rigid rule of construction
(Gonzales v. Gonzales, 90 Phil. 444, 449). 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
The law is to be liberally construed, "the underlying and fundamental objective permeating the considerations."cralaw virtua1aw library
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 Ino v. Ino (11 SCRA 422, 429) has the following ruling which applies a similar liberal
wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and approach:chanrobles virtual lawlibrary
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" ". . . Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix
(Report of the Code Commission, p. 103). 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
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for and all three witnesses. The law should not be so strictly and literally interpreted as to penalize
the defect in the place of signatures of the witnesses, he would have found the testimony the testatrix on account of the inadvertence of a single witness over whose conduct she had
sufficient to establish the validity of the will. 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 objects of attestation and of subscription were fully met and satisfied in the present case the evidence on record attest to the full observance of the statutory requisites. Otherwise, as
when the instrumental witnesses signed at the left margin of the sole page which contains all stated in Vda. de Gil. v. Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration)
the testamentary dispositions, especially so when the will was properly identified by ‘witnesses may sabotage the will by muddling or bungling it or the attestation clause.’"
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.chanrobles.com.ph : virtual WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which
law library denied the probate of the 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
We have examined the will in question and noticed that the attestation clause failed to state ordered to allow the probate of the will and to conduct further proceedings in accordance with
the number of pages used in writing the will. This would have been a fatal defect were it not this decision. No pronouncement of costs.
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 SO ORDERED.
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."cralaw virtua1aw library

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:jgc:chanrobles.com.ph
 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. 1äwphï1.ñët
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
G.R. No. L-18979 June 30, 1964 was acknowledged by the testatrix and by the said three instrumental witnesses on the same
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE. date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that
CELSO ICASIANO, petitioner-appellee, the will was actually prepared by attorney Fermin Samson, who was also present during the
vs. execution and signing of the decedent's last will and testament, together with former
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants. 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
Jose W. Diokno for petitioner-appellee.
Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
the due execution and authenticity of the said will. So did the Notary Public before whom the
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin
REYES, J.B.L., J.: 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. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of
what purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the
age of 83 in Balayan, Batangas, on March 3, 1947, almost six months after the document in
question was executed. In the court below, the present appellant specified five grounds for his
opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at the time of the execution of the will, he was
wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever
execute said will, it was not executed and attested as required by law, and one of the alleged
instrumental witnesses was incapacitated to act as such; and it was procured by duress,
influence of fear and threats and undue and improper pressure and influence on the part of
the beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the
herein proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by
fraud or trick.
In this instance only one of these objections is reiterated, formulated in these words: "That the
court a quo erred in holding that the document Exhibit "A" was executed in all particulars as
required by law." To this objection is added the alleged error of the court "in allowing the
petitioner to introduce evidence that Exhibit "A" was written in a language known to the
decedent after petitioner rested his case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on one side of a separate
sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the appellant
believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford
means of preventing the substitution or of defecting the loss of any of its pages. (Abangan vs.
Abangan, 40 Phil., 476.) In the present case, the omission to put a page number on the first
sheet, if that be necessary, is supplied by other forms of identification more trustworthy than
the conventional numerical words or characters. The unnumbered page is clearly identified as
the first page by the internal sense of its contents considered in relation to the contents of the
second page. By their meaning and coherence, the first and second lines on the second page their original case, and its ruling will not be disturbed in the appellate court where no abuse of
are undeniably a continuation of the last sentence of the testament, before the attestation discretion appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page generally, additional evidence is allowed when it is newly discovered, or where it has been
contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the omitted through inadvertence or mistake, or where the purpose of the evidence is to the
testator was in full use of his testamentary faculty, — all of which, in the logical order of evidence is to correct evidence previously offered. (I Moran's Comments on the Rules of Court,
sequence, precede the direction for the disposition of the marker's property. Again, as page 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence on the testator's knowledge
two contains only the two lines above mentioned, the attestation clause, the mark of the of Spanish had not been deliberate. It was due to a misapprehension or oversight.
testator and the signatures of the witnesses, the other sheet can not by any possibility be
Although alien to the second assignment of error, the appellant impugns the will for its silence
taken for other than page one. Abangan vs. Abangan, supra, and Fernandez vs. Vergel de Dios,
on the testator's understanding of the language used in the testament. There is no statutory
46 Phil., 922 are decisive of this issue.
requirement that such knowledge be expressly stated in the will itself. It is a matter that may
Although not falling within the purview and scope of the first assignment of error, the matter be established by proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil.,
of the credibility of the witnesses is assailed under this heading. On the merits we do not 781, in which the probate of a will written in Tagalog was ordered although it did not say that
believe that the appellant's contention deserves serious consideration. Such contradictions in the testator knew that idiom. In fact, there was not even extraneous proof on the subject
the testimony of the instrumental witnesses as are set out in the appellant's brief are incidents other than the fact that the testator resided in a Tagalog region, from which the court said "a
not all of which every one of the witnesses can be supposed to have perceived, or to recall in presumption arises that said Maria Tapia knew the Tagalog dialect.
the same order in which they occurred.
The order of the lower court ordering the probate of the last will and testament of Don Sixto
Everyday life and the result of investigations made in the field of experimental Lopez is affirmed, with costs.
psychology show that the contradictions of witnesses generally occur in the details of
a certain incident, after a long series of questioning, and far from being an evidence
of falsehood constitute a demonstration of good faith. Inasmuch as not all those who
witness an incident are impressed in like manner, it is but natural that in relating
their impressions they should not agree in the minor details; hence, the
contradictions in their testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. The reason
for this was that the testator was suffering from "partial paralysis." While another in testator's
place might have directed someone else to sign for him, as appellant contends should have
been done, there is nothing curious or suspicious in the fact that the testator chose the use of
mark as the means of authenticating his will. It was a matter of taste or preference. Both ways
are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the
testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion that the trial
court communicated an abuse of discretion in allowing the appellant to offer evidence to
prove knowledge of Spanish by the testator, the language in which the will is drawn, after the
petitioner had rested his case and after the opponent had moved for dismissal of the petition
on the ground of insufficiency of evidence. It is within the discretion of the court whether or
not to admit further evidence after the party offering the evidence has rested, and this
discretion will not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it
is within the sound discretion of the court whether or not it will allow the case to be
reopened for the further introduction of evidence after a motion or request for a nonsuit, or
a demurrer to the evidence, and the case may be reopened after the court has announced its
intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied
the same, or after the motion has been granted, if the order has not been written, or entered
upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their respective
direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the
court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon

[G.R. NO. 145545 : June 30, 2008]
PAZ SAMANIEGO-CELADA, Petitioner, v. LUCIA D. ABENA, Respondent.
DECISION
QUISUMBING, J.:
This is a Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure seeking to
reverse the Decision 1 dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756,
which affirmed the Decision2dated March 2, 1993 of the Regional Trial Court (RTC), Branch 66,
Makati City. The RTC had declared the last will and testament of Margarita S. Mayores
probated and designated respondent Lucia D. Abena as the executor of her will. It also ordered
the issuance of letters testamentary in favor of respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores
(Margarita) while respondent was the decedent's lifelong companion since 1929.
On April 27, 1987, Margarita died single and without any ascending nor descending heirs as
her parents, grandparents and siblings predeceased her. She was survived by her first cousins
Catalina Samaniego-Bombay, Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament 3 on February 2, 1987 where
she bequeathed one-half of her undivided share of a real property located at Singalong Manila,
consisting of 209.8 square meters, and covered by Transfer Certificate of Title (TCT) No. 1343
to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third
portion each. She likewise bequeathed one-half of her undivided share of a real property
located at San Antonio Village, Makati, consisting of 225 square meters, and covered by TCT
No. 68920 to respondent, Isabelo M. Abena, and Amanda M. Abena in equal shares or one-
third portion each. Margarita also left all her personal properties to respondent whom she
likewise designated as sole executor of her will.
On August 11, 1987, petitioner filed a petition for letters of administration of the estate of
Margarita before the RTC of Makati. The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of the will of Margarita before
the RTC of Makati. The case was docketed as SP Proc. No. M-1607 and consolidated with SP
Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the last will and testament of
Margarita probated and respondent as the executor of the will. The dispositive portion of the
decision states:
In view of the foregoing, judgment is hereby rendered:
1) declaring the will as probated;
2) declaring Lucia Abena as the executor of the will who will serve as such without a bond as
stated in paragraph VI of the probated will;
3) ordering the issuance of letters testamentary in favor of Lucia Abena.
So ordered. 4
Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a
decision dated October 13, 2000, affirmed in totothe RTC ruling. The dispositive portion of the
Court of Appeals' decision states:
WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is
hereby ORDERED DISMISSEDand the appealed Decision of the trial court AFFIRMED INTOTO,
with cost to oppositors-appellants.
SO ORDERED.5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT
INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE
WILL BECAUSE IT WAS PROCURED THROUGH UNDUE INFLUENCE AND PRESSURE[;] AND
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER,
HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S. MAYORES AND IN NOT
ISSUING LETTERS OF ADMINISTRATION TO HER.6
Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will
invalid for failure to comply with the formalities required by law, (2) whether said court erred
in not declaring the will invalid because it was procured through undue influence and pressure,
and (3) whether it erred in not declaring petitioner and her siblings as the legal heirs of
Margarita, and in not issuing letters of administration to petitioner.
Petitioner, in her Memorandum, 7 argues that Margarita's will failed to comply with the
formalities required under Article 8058 of the Civil Code because the will was not signed by the
testator in the presence of the instrumental witnesses and in the presence of one another. She
also argues that the signatures of the testator on pages A, B, and C of the will are not the same
or similar, indicating that they were not signed on the same day. She further argues that the
will was procured through undue influence and pressure because at the time of execution of
the will, Margarita was weak, sickly, jobless and entirely dependent upon respondent and her
nephews for support, and these alleged handicaps allegedly affected her freedom and
willpower to decide on her own. Petitioner thus concludes that Margarita's total dependence
on respondent and her nephews compelled her to sign the will. Petitioner likewise argues that
the Court of Appeals should have declared her and her siblings as the legal heirs of Margarita
since they are her only living collateral relatives in accordance with Articles 1009 9 and 101010 of
the Civil Code.
Respondent, for her part, argues in her Memorandum 11 that the Petition for Review raises
questions of fact, not of law and as a rule, findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal to the Supreme Court. She also points out that
although the Court of Appeals at the outset opined there was no compelling reason to review
the petition, the Court of Appeals proceeded to tackle the assigned errors and rule that the
will was validly executed, sustaining the findings of the trial court that the formalities required
by law were duly complied with. The Court of Appeals also concurred with the findings of the
trial court that the testator, Margarita, was of sound mind when she executed the will.
After careful consideration of the parties' contentions, we rule in favor of respondent.
We find that the issues raised by petitioner concern pure questions of fact, which may not be
the subject of a Petition for Review on Certiorariunder Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will was signed by the testator
in the presence of the witnesses and of one another, whether or not the signatures of the
witnesses on the pages of the will were signed on the same day, and whether or not undue
influence was exerted upon the testator which compelled her to sign the will, are all questions
of fact.
This Court does not resolve questions of fact in a Petition for Review under Rule 45 of the 1997
Rules of Civil Procedure. Section 112 of Rule 45 limits this Court's review to questions of law
only.
Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by
substantial evidence, the findings of fact of the Court of Appeals are conclusive and binding on
the parties and are not reviewable by this Court, unless the case falls under any of the
following recognized exceptions:
(1) When the conclusion is a finding grounded entirely on speculation, surmises and
conjectures;
(2) When the inference made is manifestly mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of specific evidence on which
they are based;
(9) When the facts set forth in the petition as well as in the petitioners' main and reply briefs
are not disputed by the respondents; andcralawlibrary
(10) When the findings of fact of the Court of Appeals are premised on the supposed absence
of evidence and contradicted by the evidence on record. 13
We find that this case does not involve any of the abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that
petitioner's arguments lack basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the
testator [Margarita Mayores] was not mentally capable of making a will at the time of the
execution thereof, the same is without merit. The oppositors failed to establish, by
preponderance of evidence, said allegation and contradict the presumption that the testator
was of sound mind (See Article 800 of the Civil Code). In fact, witness for the oppositors, Dr.
Ramon Lamberte, who, in some occasions, attended to the testator months before her death,
testified that Margarita Mayores could engage in a normal conversation and he even stated
that the illness of the testator does not warrant hospitalization'. Not one of the oppositor's
witnesses has mentioned any instance that they observed act/s of the testator during her
lifetime that could be construed as a manifestation of mental incapacity. The testator may be
admitted to be physically weak but it does not necessarily follow that she was not of sound
mind. [The] testimonies of contestant witnesses are pure aforethought.
Anent the contestants' submission that the will is fatally defective for the reason that its
attestation clause states that the will is composed of three (3) pages while in truth and in fact,
the will consists of two (2) pages only because the attestation is not a part of the notarial will,
the same is not accurate. While it is true that the attestation clause is not a part of the will, the
court, after examining the totality of the will, is of the considered opinion that error in the
number of pages of the will as stated in the attestation clause is not material to invalidate the
subject will. It must be noted that the subject instrument is consecutively lettered with pages
A, B, and C which is a sufficient safeguard from the possibility of an omission of some of the
pages. The error must have been brought about by the honest belief that the will is the whole
instrument consisting of three (3) pages inclusive of the attestation clause and the
acknowledgement. The position of the court is in consonance with the "doctrine of liberal
interpretation" enunciated in Article 809 of the Civil Code which reads:
"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."
The court also rejects the contention of the oppositors that the signatures of the testator were
affixed on different occasions based on their observation that the signature on the first page is
allegedly different in size, texture and appearance as compared with the signatures in the
succeeding pages. After examination of the signatures, the court does not share the same
observation as the oppositors. The picture (Exhibit "H-3") shows that the testator was affixing
her signature in the presence of the instrumental witnesses and the notary. There is no
evidence to show that the first signature was procured earlier than February 2, 1987.
Finally, the court finds that no pressure nor undue influence was exerted on the testator to
execute the subject will. In fact, the picture reveals that the testator was in a good mood and
smiling with the other witnesses while executing the subject will (See Exhibit "H").
In fine, the court finds that the testator was mentally capable of making the will at the time of
its execution, that the notarial will presented to the court is the same notarial will that was
executed and that all the formal requirements (See Article 805 of the Civil Code) in the
execution of a will have been substantially complied with in the subject notarial
will.14(Emphasis supplied.)
Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner
and her siblings are not compulsory heirs of the decedent under Article 887 15 of the Civil Code
and as the decedent validly disposed of her properties in a will duly executed and probated,
petitioner has no legal right to claim any part of the decedent's estate.
WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the
Court of Appeals in CA-G.R. CV No. 41756 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 176943 October 17, 2008
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and CONNIE
ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the
childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the
Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself. 1
On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real
Property Inter Vivos"2(Deed of Donation) in favor of petitioners’ mother Maria 3 covering all the
six lots which Matilde inherited from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE
[Maria], the latter being adopted and hav[ing] been brought up by the former the DONOR, by
these presents, transfer and convey, BY WAY OF DONATION, unto the DONEE the property
above-described, to become effective upon the death of the DONOR, but in the event that
the DONEE should die before the DONOR, the present donation shall be deemed
rescinded and [of] no further force and effect; Provided, however, that anytime during the
lifetime of the DONOR or anyone of them who should survive, they could use[,] encumber or
even dispose of any or even all of the parcels of landherein donated. 4 (Emphasis and
underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in
Matilde’s name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real
Property.5
Subsequently or on January 14, 1992, Matilde executed a last will and testament, 6 devising Lot
Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to
respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same year. 7
On August 21, 1995, Maria’s heirs-herein petitioners filed before the Regional Trial Court (RTC)
of Roxas City a Complaint, 8 for declaration and recovery of ownership and possession of Lot
Nos. 674 and 676, and damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January
1991 when defendant entered and possessed the two (2) parcels of land claiming as the
adopted son of Crispin Aluad who refused to give back possession until Matilde Aluad died in
[1994] and then retained the possession thereof up to and until the present time, thus,
depriving the plaintiffs of the enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of
representation from their deceased mother, Maria Aluad who is the sole and only daughter of
Matilde Aluad[.]9
To the complaint respondent alleged in his Answer. 10
That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and
Testament of Matilde Aluad x x x while Lot 676 was purchased by him from Matilde Aluad.
These two lots are in his possession as true owners thereof. 11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to
Evidence12 to which it annexed an Amended Complaint 13 which cited the donation of the six
lots via Deed of Donation in favor of their mother Maria. Branch 15 of the RTC granted the
motion and admitted the Amended Complaint.14
Respondent filed an Amended Answer 15 contending, inter alia, that the Deed of Donation is
forged and falsified and petitioners’ change of theory showed that "said document was not
existing at the time they filed their complaint and was concocted by them after realizing that
their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway
be established by them";16 and that if ever said document does exist, the same was already
revoked by Matilde "when [she] exercised all acts of dominion over said properties until she
sold Lot 676 to defendant and until her death with respect to the other lots without any
opposition from Maria Aluad."17
The trial court, by Decision 18 of September 20, 1996, held that Matilde could not have
transmitted any right over Lot Nos. 674 and 676 to respondent, she having previously alienated
them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar
Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorney’s fees;
b. Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year
from 1991 up to the time said lot is delivered to the plaintiffs, together with the interest
thereof at the legal rate until fully paid;
c. Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a
year from 1991 up to the time said lot is delivered to the plaintiffs, plus legal interest thereof at
the legal rate until fully paid; and
d. The costs of the suit.
Defendant’s counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19
On petitioners’ motion, the trial court directed the issuance of a writ of execution pending
appeal.20 Possession of the subject lots appears to have in fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial court’s decision, it
holding that the Deed of Donation was actually a donation mortis causa, not inter vivos, and as
such it had to, but did not, comply with the formalities of a will. Thus, it found that the Deed of
Donation was witnessed by only two witnesses and had no attestation clause which is not in
accordance with Article 805 of the Civil Code, reading:
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 that 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.
While the appellate court declared respondent as the rightful owner of Lot No. 676, it did not
so declare with respect to Lot No. 674, as Matilde’s last will and testament had not yet been
probated. Thus the Court of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and
the Decision of the Regional Trial Court of Roxas City, Branch 15, dated 20 September 1996, in
Civil Case No. V-6686 for declaration of ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot
[No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return the
possession of the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as
attorney’s fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration 23 having been denied,24 petitioners filed the present Petition
for Review,25contending that the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City)
HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS’ MOTHER IS
IN FACT A DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT
BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE
RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER
HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN
VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING
PETITIONERS TO RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING
PETITIONERS TO PAY ATTORNEY’S FEES AND COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to petitioners’ mother one of mortis
causa, it having the following characteristics:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or
what amounts to the same thing, that the transferor should retain the ownership (full or
naked) and control of the property while alive;
(2) That before the death of the transferor, the transfer should be revocable by the transferor
at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power
in the donor to dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the transferee.27 (Emphasis
and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the
DONOR" admits of no other interpretation than to mean that Matilde did not intend to
transfer the ownership of the six lots to petitioners’ mother during her (Matilde’s) lifetime. 28
The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or
anyone of them who should survive, they could use, encumber or even dispose of any or even
all the parcels of land herein donated"29 means that Matilde retained ownership of the lots
and reserved in her the right to dispose them. For the right to dispose of a thing without other
limitations than those established by law is an attribute of ownership. 30 The phrase in the Deed
of Donation "or anyone of them who should survive" is of course out of sync. For the Deed of
Donation clearly stated that it would take effect upon the death of the donor, hence, said
phrase could only have referred to the donor Matilde. Petitioners themselves concede that
such phrase does not refer to the donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in the disputed paragraph should
only refer to Matilde Aluad, the donor, because she was the only surviving spouse at the time
the donation was executed on 14 November 1981, as her husband – Crispin Aluad [–] had long
been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period when the donor
provides in the aforequoted provisions, "but in the event that the DONEE should die before the
DONOR, the present donation shall be deemed rescinded and [of] no further force and effect".
When the donor provides that should the "DONEE" xxx die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect" the logical
construction thereof is that after the execution of the subject donation, the same became
effective immediately and shall be "deemed rescinded and [of] no further force and effect"
upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur
before that of the donor. Understandably, the arrival of this resolutory term or period cannot
rescind and render of no further force and effect a donation which has never become effective,
because, certainly what donation is there to be rescinded and rendered of no further force and
effect upon the arrival of said resolutory term or period if there was no donation which was
already effective at the time when the donee died?32 (Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however, thus:
x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die
ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the donation
as inter vivos.
Petitioners’ arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the donation shall be rescinded in case
[donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated in Reyes v.
Mosqueda, one of the decisive characteristics of a donation mortis causa is that the transfer
should be considered void if the donor should survive the donee. This is exactly what
Cabatingan provided for in her donations. If she really intended that the donation should take
effect during her lifetime and that the ownership of the properties donated to the donee or
independently of, and not by reason of her death, she would not have expressed such proviso
in the subject deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by
Matilde’s acts of possession as she continued to pay the taxes for the said properties which
remained under her name; appropriated the produce; and applied for free patents for which
OCTs were issued under her name."35
The donation being then mortis causa, the formalities of a will should have been
observed36 but they were not, as it was witnessed by only two, not three or more witnesses
following Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation clause 38 the execution of which clause
is a requirement separate from the subscription of the will and the affixing of signatures on the
left-hand margins of the pages of the will. So the Court has emphasized:
x x x 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[s] 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.
x x x 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.39 (Emphasis and underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before the notary public, 40 which is
not in accordance with the requirement of Article 806 of the Civil Code that every will must be
acknowledged before a notary public by the testator and the witnesses.
More. The requirement that all the pages of the will must be numbered correlatively in letters
placed on the upper part of each page was not also followed. 41
The Deed of Donation which is, as already discussed, one of mortis causa, not having followed
the formalities of a will, it is void and transmitted no right to petitioners’ mother. But even
assuming arguendo that the formalities were observed, since it was not probated, no right to
Lot Nos. 674 and 676 was transmitted to Maria. 42 Matilde thus validly disposed of Lot No. 674
to respondent by her last will and testament, subject of course to the qualification that her
(Matilde’s) will must be probated. With respect to Lot No. 676, the same had, as mentioned
earlier, been sold by Matilde to respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their
mother is indeed mortis causa, hence, Matilde could devise it to respondent, the lot should
nevertheless have been awarded to them because they had acquired it by acquisitive
prescription, they having been in continuous, uninterrupted, adverse, open, and public
possession of it in good faith and in the concept of an owner since 1978. 43
Petitioners failed to raise the issue of acquisitive prescription before the lower courts,
however, they having laid their claim on the basis of inheritance from their mother. As a
general rule, points of law, theories, and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal. 44 For a contrary rule would be unfair to the
adverse party who would have no opportunity to present further evidence material to the new
theory, which it could have done had it been aware of it at the time of the hearing before the
trial court. 45
WHEREFORE, the petition is DENIED. SO ORDERED.

G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because
its attestation clause is not signed by the attesting witnesses. There is no question that the
signatures of the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on the left-hand
margin. [G.R. Nos. L-3272-73. November 29, 1951.]

We are of the opinion that the position taken by the appellant is correct. The attestation clause MANUEL GONZALES, Petitioner-Appellant, v. MANOLITA GONZALES DE CARUNGCONG,
is 'a memorandum of the facts attending the execution of the will' required by law to be made petitioner-appellee; ALEJANDRO GONZALES, JR., and JUAN GONZALES, Oppositors-
by the attesting witnesses, and it must necessarily bear their signatures. An unsigned Appellants.
attestation clause cannot be considered as an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their participation. Claro M. Recto, for Petitioner-Appellant.
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 Reyes, Albert, Agcaoili and Raf. L. Arcega, for Petitioner-Appellee.
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 Emiliano Pamintuan and Felixberto M. Serrano, for oppositors-appellants.
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 SYLLABUS
and any or all of the witnesses.
1. WILLS; ATTESTATION CLAUSE MADE BY TESTATOR AND SIGNED BY WITNESSES,
Wherefore, the appealed decision is reversed and the probate of the will in question denied.
SUBSTANTIALLY COMPLIES WITH LAW. — An attestation clause made by the testator himself
So ordered with costs against the petitioner and appellee.
more than by the instrumental witnesses, but signed by the latter right under the signature of
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur. the testator, substantially complies with the requirements of law.

2. ID.; ID.; STATEMENT OF SHEETS OR PAGES IN BODY OF WILL HELD SUFFICIENT WHEN
CONSIDERED IN CONNECTION WITH ATTESTATION CLAUSE. — The statement in the
penultimate paragraph of the will as to the number of the sheets or pages used is sufficient
attestation which may be considered in conjunction with the last paragraph which was herein
held as the attestation clause. The law does not require the attestation to be contained in a
single clause.

3. ID.; TESTAMENTARY CAPACITY; TESTIMONY OF ATTENDING PHYSICIAN PREVAILS OVER THAT

OF TESTAMENTARY WITNESSES. — Where the family physician attended the testatrix during
her last illness and saw her on the day when the alleged document of revocation was
executed, the testimony of the attesting witnesses tending to imply that the testatrix was of
sound mind at the time said document was executed, cannot prevail over the contrary Ibarra Viuda de Gonzales, and said will is hereby admitted probate."cralaw virtua1aw library
testimony of the attending physician.
From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and
Juan Gonzales have appealed. The appeal as to Juan Gonzales was dismissed in view of his
DECISION failure to pay the proportionate share of the printing cost of the record on appeal.

In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is
PARAS, C.J. : of the following form and tenor:jgc:chanrobles.com.ph

"IKALABING-DALAWA. Na ang aking Huling BILIN AT TESTAMENTONG ito ay binubuo ng PITONG

On November 27, 1948, Manuela Ibarra Vda. de Gonzales (hereafter to be referred to as (7) dahon o pagina na may bilang na sunod-sunod at ang bawa’t dahon o pagina ay mayroong
testatrix) died at the age of about seventy-eight years, leaving five children, namely, Alejandro tunay kong lagda o firma, gayon din ang lahat ñg aking saksi o testigos.
Gonzales, Jr., Manuel Gonzales, Leopoldo Gonzales, Manolita Gonzales de Carungcong, and
Juan Gonzales. The estate left by her is estimated at P150,000. "SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite,
Filipinas ñgayong ika-5 ñg Mayo ng taong 1945, na nakaharap dito sa ating paglagda o pagfirma
On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition ang tatlong saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat
(Special Proceeding No. 837) for the probate of an alleged will executed by the testatrix on at bawa’t dahon o pagina nitong testamento kong ito sa harap ng lahat at bawa’t isang saksi o
November 16, 1942 (Exhibit B — Manuel Gonzales), devising to Manuel Gonzales the greater testigos at ang lahat at bawa’t isa naman sa kanila ay nangagsilagda o nagsifirma din dito
portion of the estate, without impairing the legitimes of the other children. bilang saksi ko sa harap ko at sa harap ng lahat at bawa’t isa sa kanila, at ganoon din silang mga
saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa ng lahat at bawa’t isa sa mga dahon
On December 31, 1948, Manolita G. de Carungcong died in the same court a petition (Special o pagina nitong aking testamento.
Proceeding No. 838) for the probate of another alleged will executed by the testatrix on May 5,
" (Sgd.) MANUELA Y. VDA. DE GONZALES
1945 (Exhibit 1 — Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater
bulk of the estate, without impairing the legitimes of the other children.
MANUELA IBARRA VDA. DE GONZALES
In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of "Mga Saksi o Testigos:
the wills executed on November 16, 1942, and May 5, 1945, on the ground that, assuming " (Sgd.) BIENVENIDO DE LOS REYES
their validity, they had been revoked by the testatrix in an instrument executed by her on
November 18, 1948 (Exhibit 2 — Alejandro and Juan Gonzales), with the result that her estate "(Sgd.) TAHIMIK T. SAYOC
should be distributed as if she died intestate.
"(Sgd.) LUIS GAERLAN"
With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions
to one or the other instruments tending to negative their respective positions. After a joint It is contended for the appellants that this will does not contain any attestation clause; that,
hearing, the Court of First Instance of Rizal rendered a decision with the following dispositive assuming the concluding paragraph to be the attestation clause, it is not valid because it is the
pronouncements:jgc:chanrobles.com.ph act of the testatrix and not of the witnesses, and because it does not state the number of
sheets or pages of the will.
"All facts considered in the light of the evidence presented and in the manner in which the
witnesses testified the court concludes and holds:jgc:chanrobles.com.ph In the very recent case of Valentina Cuevas v. Pilar Achacoso, G. R. No. L-3497, decided May,
1951 * we sustained, finding a precedent in Aldaba v. Roque, 43 Phil., 378, an attestation
"First: That Exhibit B — Manuel Gonzales, though validity executed on November 16, 1942, clause made by the testator and forming part of the body of the will. Through Mr. Justice
was revoked by Exhibit 1 — Manolita G. Carungcong in accordance with the provisions of Bautista, we held:jgc:chanrobles.com.ph
section 623 of the Code of Civil Procedure.
"The clause above quoted is the attestation clause referred to in the law which, in our opinion,
"Second: That Exhibit 2 — Alejandro and Juan Gonzales being executed without the knowledge substantially complies with its requirements. The only apparent anomaly we did is that it
and testamentary capacity of the testatrix and being contrary to the provisions of section 618 appears to be an attestation made by the testator himself more than by the instrumental
of the Code of Civil Procedure, the said document is hereby declared null and void. witnesses. This apparent anomaly, however, is not in our opinion serious nor substantial as to
affect the validity of the will, it appearing that right under the signature of the testator, there
"Third: That Exhibit 1 — Manolita G. Carungcong having been executed in accordance with law appear the signatures of the three instrumental witnesses.
the same is hereby declared as the true and last will and testament of the deceased Manuela
"‘Instrumental witness, as defined by Escriche in his Diccionario Razonada de Legislacion, y
Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or
writing" (in re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does
not merely attest to the signature of the testator but also to the proper execution of the will.
The fact that the three instrumental witnesses have signed the will immediately under the
signature of the testator, shows that they have in fact attested not only to the genuineness of
his signature but also to the due execution of the will as embodied in the attestation clause.
"The attestation clause in question bears also similarity with the attestation clause in the will
involved in Aldaba v. Roque, (43 Phil, 378). In that case, the attestation clause formed part of
the body of the will and its recital was made by the testatrix herself and was signed by her and
by the three instrumental witnesses. In upholding the validity of the will, the court
said:jgc:chanrobles.com.ph
"‘In reality, it appears that it is the testatrix who makes the declaration about the points in the
last paragraph of the will; however, as the witnesses, together with the testatrix, have signed
the said declaration, we are of the opinion and so hold that the words above quoted of the
testament constitute a sufficient compliance with the requirements of Act No. 2645’."cralaw
virtua1aw library
Of course three of the Justices of this Court concurred in the result, "in the possibility that the
testator in the present case, or the person or persons who prepared the will had relied upon
the ruling laid down in the case of Aldaba v. Roque, supra, and that it would now be unfair to
reject the present will when in its preparation a ruling of this Court has been followed." But
the case at bar still falls within this view, the will (Exhibit 1 — Manolita G. Carungcong) having
been executed on May 5, 1945.
ko ng saysay at kabuluhang lahat pagkat hindi iyong ang tunay kong kalooban ñgayon.
"‘Sa katunayan ng lahat ng ito at sa pagkat hindi ako makalagda ngayon ang pina-kiusapan si
Constancio Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng Noviembre ng taong ito
1948, dito sa ciudad ng Pasay’."cralaw virtua1aw library
Appellee Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the
testatrix lacked the testamentary capacity when she allegedly executed the instrument of
revocation, and their contention was sustained by the trial court. We have examined the
record and found no valid reason for reversing the finding of said court which had the benefit
of observing and hearing the witnesses testify. Upon the other hand, the following
considerations amply support the appealed decision:chanrob1es virtual 1aw library
1. For more than ten years prior to her death, the testatrix had suffered from hypertension. On
November 14, 1948, she had aphasia and on November 15, 1948, she was taken to the
hospital upon advice of the family physician, Dr. Jose C. Leveriza. In the letter introducing her
to the hospital authorities (Exhibit E — Manuel Gonzales), Dr. Leveriza stated that the testatrix
was suffering from hypertension and cerebral thrombosis. Particularly on November 18, 1948,
when the alleged instrument of revocation was executed by her, the testatrix was in a
comatose and unconscious state and could not talk or understand. The following is the
testimony of Dr. Leveriza portraying the physical condition of the testatrix up to November 18,
1948:jgc:chanrobles.com.ph
"P. ¿Y que hizo usted cuando Doña Manuela I. Vda. de Gonzales ya estaba en el hospital?
R. Me fui alla para examinarla.

The attestation clause contained in the body of the will being thus valid, the statement in the "P. ¿Cual era el resultado de su examen?
penultimate paragraph of the will hereinabove quoted as to the number of sheets or pages
used, is sufficient attestation which may be considered in conjunction with the last paragraph. R. Cuando fue al hospital a examinarla en el primer dia via que la aphasia se agravo, o sea que
It is significant that the law does not require the attestation to be contained in a single clause. ha perdido el poder de hablar inteligentemente; tambien encontre que estaba inconsciente,
While perfection in the drafting of a will may be desirable, unsubstantial departure from the durmiendo constantemente y no se le podia, despertar, tenia la respiracion fatigosa, lenta y
usual forms should be ignored, especially where the authenticity of the will is not assailed, as con estertores, y no podia levantarse, asi que yo perscribi que diera el alimento por medio de
in this case. hypodermoclysis, o sea por medio de inyecciones.

The result reached in respect of the sufficiency of the will (Exhibit 1 — Manolita G. "Sr. PAMINTUAN. — ¿Quisieramos saber, Su Señoria, si se presenta al testigo como experto?
Carungcong) necessarily disposes of the contention of appellant Manuel Gonzales that the trial
court erred in not admitting to probate the will (Exhibit B — Manuel Gonzales), since the latter "Sr. SERRANO. — Tambien quisiera saber si se presenta como medico de la familia o como
will must be considered revoked by the subsequent will (Exhibit 1 — Manolita G. Carungcong). medico experto?

What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will "Sr. ARCEGA. — Presento al testigo como medico de cabecera y como medico experto el
(Exhibit 1 — Manolita G. Carungcong) has been revoked by the testatrix in the instrument of mismo tiempo.
November 18, 1948 (Exhibit 2 — Alejandro and Juan Gonzales) which provides as
follows:jgc:chanrobles.com.ph "P. ¿Y que hicieron en el hospital en vieta de sus instrucciones?

"Ako, MANUELA YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa ciudad ng R. Cumplieron la prescripcion mia.
Rizal, may mahusay at wastong pagiisip at mabuting pagtatanda, sa pamamaguitan ng
kasulatang ito at bilang huling kapasiyahan ay sinasaysay ko at ipinahahayag sa ñgayon sa alin "P. ¿Que sucedio con respecto al estado de la paciente?
mang testamento o huling habilin na napirmahan kong una sa kasulatang ito ay pinawawalan
R. La paciente a medida que pasaban los dias se quedaba grave cada vez y mas graves los
sintomas aun que el primer dia en que fue ella llevada al hospital. "P. ¿Despues del 15 de noviembre de 1948 en que segun usted fue ingresada la paciente en el
hospital podia hablar ella y hacer entender sus palabras?
"P. Volviendome a la condicion de la paciente, en que estado se encontraba Doña Manuela I.
Vda. de Gonzales el 14 de noviembre de 1948 antes de ingresarla en el hospital? R. No, señor.

R. La encontre con aphasia, no podia hablar inteligentemente. "P. ¿Y que hacia la paciente?

"P. ¿Puede usted explicar al Juzgado el curso de la enfermedad de Doña Manuela I. Vda. de R. Estaba durmiendo continuamente, no podia abrir sus ojos por si sola, sino que yo abria para
Gonzales? ver la pupila.

R. Estuvo agravandose desde el segundo dia en que fue ingresada al hospital, y desde ese dia "P. ¿Trato usted de tener conversacion con la paciente?
ya orinaba y deponia en la cama inconscientemente.
R. Naturalmente trataba, pero no contestaba, y ni creo que me entendia.
x x x
"P. ¿Podia levantarse la paciente?

(t. s. n., Laquindanum, March 21, 1949, pp. 24-26.) R. No, señor, porque estaba en estado comatoso, y para prevenir la pneumonia hypostatica dos
o tres hombres tenian que levantarla y ponerla algo de costado o algo asi reclinada.
P. ¿Explique usted al Juzgado el curso de la enfermedad de la paciente haciendo referencia de
las fechas que aparecen en los Exhibitos 3 y 3-4? "P. ¿Y que resultado tuvo esa precaucion que usted tomo?

R. El noviembre 14, ordene el ingreso de la paciente al Mercy Hospital, porque tuvo paralisis R. Se ha retrasado o retardado la pneumonia, pero sobrevino, al fin, que siempre es fatal.
parcial en la lengua, probablemente de origen embalismo o thrombosis cerebral, y como ya
era de noche no se llevo al hospital, sino el dia 15 de noviembre en donde le he hecho dos "P. ¿Usted dijo que al fin sobrevino la pneumonia, que efecto tuvo esa pneumonia a la
visitas; la condicion de la paciente continuo empeorando hasta el dia 25 de noviembre en que paciente?
sobrevino la complicacion de pneumonia hypostatica hasta qus fallecio el noviembre 27, 1948,
a las 2:30 p.m. R. Precipito la muerte de la paciente.

x x x "P. ¿EI 18 de noviembre de 1948, segun testimonio de los testigos, otorgaron el documento
Exhibit 2 — Alejandro y Juan Gonzales, puede usted decir al Juzgado en que estado se
encontraba Doña Manuela I. Vda. de Gonzales?
(t. s. n., Laquindanum, March 21, 1948, pp. 28-29.)
R. Estaba en esetedo comatoso.
"JUZGADO. — P. ¿Como llego usted a esa conclusion de que desde el 14 de noviembre de 1948
en que usted ordeno la entrega de la paciente al hospital empeoro su salud hasta que murio el "P. ¿Por que sabe usted eso?
dia 27 de noviembre de 1948?
R. Porque en esa fecha yo la visite dos veces: una por la mañana y otra por la tarde.
R. Porque cada vez mas se acentua su estado comatoso, y demas su respiracion se hacia mas
fatigosa cada vez que pasaban los dias, y con estertores. "P. ¿Y estando en el estado comatoso, como usted, dice, puede usted decir al Juzgado si podia
ella hablar o entender sus palabras o su deseo?
"P. ¿Y como estaba en estado mental?
R. No, señor.
R. Estaba completamente inconsciente desde el dia en que entro en el hospital.
"P. ¿Hizo usted esfuerzos pera hacerie comprender sus palabras?
"Sr. ARCEGA. — P. ¿Podia hablar la paciente en la fecha en que fue ingresada al hospital?
R. Siempre examinaba a ella para ver si reaccionaba favorable-mente la paciente, pero cada
R. No, señor. vez era peor.
"P. ¿Puede usted decir si en equella fecha la paciente podia siquiera hacer movimiento de In support of the contention that the testimony of the attesting witnesses should be given
cabeza? more credence than the opinion of an expert witness, reliance is placed on the case of Caguioa
v. Calderon, 20 Phil., 400; Bagtas v. Paguio, 22 Phil., 227; Galvez v. Galvez, 26 Phil., 243; Samson
R. No, señor, porque la parte derecha del cuerpo tenia hemihejia o paralisis. v. Corrales Tan Quintin, 44 Phil., 573; Amata v. Tablizo, 48 Phil., 485, and Neyra v. Neyra, 42 Off.
Gaz., 2790 * These cases are notably distinguishable from the case at bar. The former refer to
"P. ¿Cual es la causa de eso que usted dice hemiflejia o paralisis? situations in which the doctors were not in a position to certify definitely as to the
testamentary capacity of the testators at the time the wills therein involved were executed,
R. Generalmente se debe a una hemorragia cerebral o trombosis del cerebro. because they had not observed the testators on said dates or never saw them; whereas the
case now before us involves a family physician who attended the testatrix during her last illness
"P. ¿Teniendo hemorragia cerebral o trombosis del cerebro, segun usted, cual ee la parte del and saw her on the day when the alleged instrument of revocation was executed.
cuerpo humano que queda afectada?
2. We cannot help expressing our surprise at the fact that the instrument of revocation was
R. La cabeza y tambien los brazos, como los miembros del cuerpo. allegedly executed on November 18, 1948, when, according to the testimony of Jose Padilla,
the latter was asked by the testatrix to prepare the necessary document as early as in the
"P. ¿Que quiere usted decir ’como los miembroe del cuerpo’? month of May, 1948, and reminded about it for the second time weeks before November 1,
1948, and for the third time several days before the latter date (November 1, 1948). The first
R. Las manos y los pies. excuse given by Jose Padilla for the delay is that he was busy and the children of the testatrix
had certain disputes which he tried to settle. The second excuse is that he was not able to
"P. ¿Podia mover la paciente sus manos y su cuerpo? secure soon enough from Alejandro Gonzales, Jr. some documents of transfer which he wanted
to examine in connection with the preparation of the desired instrument of revocation. We are
R. La parte izquierda si. inclined to state that these excuses are rather poor. If Jose Padilla was too busy to give
attention to the matter, he could have very easily informed the testatrix and the latter, if really
"P. ¿Y la parte derecha? desirous of revoking her former wills, would have employed another to prepare the requisite
document. The fact that there were disputes between the children of the testatrix certainly
R. No, señor. was not an obstacle to the accomplishment of the wish of the testatrix. Neither was it
necessary to examine the documents relating to the properties of the testatrix, since the
"JUZGADO. — Pero una persona en ese estado de salud, como estaba la paciente Doña instrument of revocation could be prepared without any reference to the details of her estate.
Manuela I. Vda. de Gonzales, el 18 de noviembre de 1948, podia comprender palabras dichas a Indeed, the instrument (Exhibit 2 — Alejandro and Juan Gonzales) is couched in general terms.
ella o indicaciones hechas por alguna persona a ella?
3. Even under the theory of appellant Alejandro Gonzales, Jr., it is hard to rule that the testatrix
R. No, señor."cralaw virtua1aw library had sufficient testamentary capacity at the time of the execution of the alleged instrument of
revocation. In the first place, Constancio Padilla (brother of Jose Padilla) merely asked the
(t. s. n. Laquindanum, March 21, 1948, pp. 30-33.) testatrix, first, if she was agreeable to the instrument of revocation prepared by Jose Padilla,
and secondly, if she was agreeable to the signing of said document by Constancio Padilla, to
While appellant Alejandro Gonzales, Jr. has attempted to show that Dr. Leveriza was not an which two questions the testatrix allegedly answered "Yes." It is not pretended that the
expert, the latter’s testimony remains uncontradicted. The fact that the testimony of the testatrix said more about the matter or gave any further instruction. The attesting witnesses
attesting witnesses tends to imply that the testatrix was of sound mind at the time the alleged were not introduced to the testatrix, and their presence was not even mentioned to her. It is
instrument of revocation was executed, cannot prevail over the findings of the attending obviously doubtful whether the testatrix understood the meaning and extent of the ceremony.
physician, Dr. Leveriza, because even Dr. Ramon C. Talavera (an attesting witness) testified that Assuming that the testatrix answered in the affirmative the two questions of Constancio
although he had not examined the testatrix, her case appeared serious; that he had a hunch Padilla, without more, we cannot fairly attribute to her a manifestation of her desire to
that "they were taking advantage of the last moment of the deceased and they were trying to proceed, right then and there, with the signing of the questioned instrument. In other words,
make me an instrument in the accomplishment of their aims," and that he had the idea that contrary to the recital of the attestation clause, the testatrix cannot rightly be said to have
the testatrix was in doubtful condition because he "could only judge from the people going published her last will to the attesting witnesses.
there."cralaw virtua1aw library
The appealed decision is, therefore, affirmed without costs. So ordered.
It is also argued that if the testatrix was in a comatose condition, Dr. Leveriza would not have
ordered to "let her sit on bed or on a chair and let her turn on her side sometime." However,
Dr. Leveriza has given the reason for this prescription, namely, to avoid hypostatic pneumonia.
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view
of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain
an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is
sufficient to deny probate. A notarial will with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog
of imperatives for the proper execution of a notarial will. Full and faithful compliance with all
the detailed requisites under Article 805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article 806 likewise imposes another
safeguard to the validity of notarial wills — that they be acknowledged before a notary public
by the testator and the witnesses. A notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court
(RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the
notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of
the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam
(79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang
aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o
testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa
kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito
ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si
Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik
sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay
ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24
na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent,
sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad.
at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones; Petitioner prayed that the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito
at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya. The 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
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
that the will is a forgery, and that the true purpose of its emergence was so it could be utilized
(Sgd.) as a defense in several court cases filed by oppositor against petitioner, particularly for forcible
EUGENIA E. IGSOLO entry and usurpation of real property, all centering on petitioner’s right to occupy the
(Tagapagmana) properties of the decedent.3 It also asserted that contrary to the representations of petitioner,
PATUNAY NG MGA SAKSI 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
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa widow of Bonifacio Igsolo, who died in 1965, 4 and the mother of a legitimate child, Asuncion E.
amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo Igsolo, who predeceased her mother by three (3) months. 5
1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang
panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi Oppositor Geralda Castillo also argued that the will was not executed and attested to in
ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa accordance with law. She pointed out that decedent’s signature did not appear on the second
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito. page of the will, and the will was not properly acknowledged. These twin arguments are
among the central matters to this petition.
EUGENIA E. IGSOLO
address: 500 San Diego St. After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The
Sampaloc, Manila Res. Cert. No. A-7717-37 RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino
Issued at Manila on March 10, 1981. 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
QUIRINO AGRAVA giving the testator more freedom in expressing his last wishes;" 7 and from this perspective,
address: 1228-Int. 3, Kahilum rebutted oppositor’s arguments that the will was not properly executed and attested to in
Pandacan, Manila Res. Cert. No. A-458365 accordance with law.
Issued at Manila on Jan. 21, 1981
After a careful examination of the will and consideration of the testimonies of the subscribing
LAMBERTO C. LEAÑO and attesting witnesses, and having in mind the modern tendency in respect to the formalities
address: Avenue 2, Blcok 7, in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal
Lot 61, San Gabriel, G.MA., Cavite Res. requirements of a will with the end in view of giving the testator more freedom in expressing
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 his last wishes, this Court is persuaded to rule that the will in question is authentic and had
JUANITO ESTRERA been executed by the testatrix in accordance with law.
address: City Court Compound, On the issue of lack of acknowledgement, this Court has noted that at the end of the will after
City of Manila Res. Cert. No. A574829 the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng
Issued at Manila on March 2, 1981. Mga Saksi":
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila. "Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa
(Sgd.) amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
PETRONIO Y. BAUTISTA Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang
Doc. No. 1232 ; NOTARIO PUBLIKO mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa
Page No. 86 ; Until Dec. 31, 1981 amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng
Book No. 43 ; PTR-152041-1/2/81-Manila kasulatan ito."
Series of 1981 TAN # 1437-977-81
The aforequoted declaration comprises the attestation clause and the acknowledgement and is
The three named witnesses to the will affixed their signatures on the left-hand margin of both considered by this Court as a substantial compliance with the requirements of the law.
pages of the will, but not at the bottom of the attestation clause.
On the oppositor’s contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositor’s argument that the will was not numbered correlatively in letters
placed on upper part of each page and that the attestation did not state the number of pages
thereof, it is worthy to note that the will is composed of only two pages. The first page contains
the entire text of the testamentary dispositions, and the second page contains the last portion
of the attestation clause and acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her
signature on the left margin of the second page, which contains only the last portion of the
attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery,
the testimonies of the three subscribing witnesses to the will are convincing enough to
establish the genuineness of the signature of the testatrix and the due execution of the will. 8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his
since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court
of Appeals reversed the trial court and ordered the dismissal of the petition for probate. 9 The
Court of Appeals noted that the attestation clause failed to state the number of pages used in
the will, thus rendering the will void and undeserving of probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of
pages used in a notarial will be stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code,
which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or more credible witnesses in
the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another
with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation
clause to state the number of pages of the will. But an examination of the will itself reveals
several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of
the will.12 There was an incomplete attempt to comply with this requisite, a space having been
allotted for the insertion of the number of pages in the attestation clause. Yet the blank was
never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada. 14 In Uy Coque, the Court noted
that among the defects of the will in question was the failure of the attestation clause to state
the number of pages contained in the will. 15 In ruling that the will could not be admitted to
probate, the Court made the following consideration which remains highly relevant to this day:
"The purpose of requiring the number of sheets to be stated in the attestation clause is
obvious; the document might easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will and in the absence of a
statement of the total number of sheets such removal might be effected by taking out the
sheet and changing the numbers at the top of the following sheets or pages. If, on the other
hand, the total number of sheets is stated in the attestation clause the falsification of the
document will involve the inserting of new pages and the forging of the signatures of the
testator and witnesses in the margin, a matter attended with much greater difficulty." 16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state
the number of sheets or pages used. This consideration alone was sufficient for the Court to
declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords
additional security against the danger that the will may be tampered with; and as the
Legislature has seen fit to prescribe this requirement, it must be considered material." 18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that
the attestation clause did not state the number of pages of the will. Yet the appellate court
itself considered the import of these two cases, and made the following distinction which
petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does
not state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118
SCRA 195," to the effect that a will may still be valid even if the attestation does not contain
the number of pages used upon which the Will is written. However, the Decisions of the
Supreme Court are not applicable in the aforementioned appeal at bench. This is so because,
in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation
in the subject Will did not state the number of pages used in the will, however, the same was
found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon
which the will is written, which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of the pages of the will
to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of
Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil.
30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a statement of
the number of sheets or pages composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will itself. But here the situation
is different. While the attestation clause does not state the number of sheets or pages upon
which the will is written, however, the last part of the body of the will contains a statement
that it is composed of eight pages, which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from being defeated by
purely technical considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement
in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state
the number of pages used in writing the will. This would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at
the left margin. The other page which is marked as "Pagina dos" comprises the attestation
clause and the acknowledgment. The acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part
of the Will. The will does not even contain any notarial acknowledgment wherein the number
of pages of the will should be stated. 21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at
a time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure. 22 Reliance on these cases remains apropos, considering that
the requirement that the attestation state the number of pages of the will is extant from
Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the attestation clause is
concerned, that may vary from the philosophy that governed these two cases. Article 809 of
the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that
"the underlying and fundamental objective permeating the provisions on the [law] on [wills] in
this project consists in the [liberalization] of the manner of their execution with the end in view
of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in the execution of wills." 24 However,
petitioner conveniently omits the qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such liberalization be "but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator." 25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado,
speaking for the Court on the conflicting views on the manner of interpretation of the legal
formalities required in the execution of the attestation clause in wills. 27 Uy
Coque and Andrada are cited therein, along with several other cases, as examples of the
application of the rule of strict construction. 28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under
Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809
should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the subscribing witnesses are three or the
will was notarized. All these are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only check against
perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is
one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that the witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be
lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission
which can be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied except
by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of
the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every
page can be liberally construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one another’s presence
should be considered a fatal flaw since the attestation is the only textual guarantee of
compliance.32
The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state
the number of pages on which the will is written is to safeguard against possible interpolation
or omission of one or some of its pages and to prevent any increase or decrease in the
pages.33 The failure to state the number of pages equates with the absence of an averment on
the part of the instrumental witnesses as to how many pages consisted the will, the execution
of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states elsewhere in it how many pages
it is comprised of, as was the situation in Singson and Taboada. However, in this case, there
could have been no substantial compliance with the requirements under Article 805 since
there is no statement in the attestation clause or anywhere in the will itself as to the number
of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of
the Code Commission in incorporating Article 805, the fact remains that they saw fit to
prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of
Civil Procedure, convinced that these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these requirements, however picayune in
impression, affords the public a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner established in the will. 35 The
transcendent legislative intent, even as expressed in the cited comments of the Code
Commission, is for the fruition of the testator’s incontestable desires, and not for the
indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of
the will itself reveals a couple of even more critical defects that should necessarily lead to its
rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do
not appear at the bottom of the attestation clause which after all consists of their averments
before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses
to the will do not appear at the bottom of the attestation clause, although the page containing
the same is signed by the witnesses on the left-hand margin." 37 While three (3)
Justices38 considered the signature requirement had been substantially complied with, a
majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had
not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause
is "a memorandum of the facts attending the execution of the will" required by law to be made
by the attesting witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause
not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the absence of the testator
and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates
the requirement that the instrumental witnesses sign each page of the will, from the requisite
that the will be "attested and subscribed by [the instrumental witnesses]." The respective
intents behind these two classes of signature are distinct from each other. The signatures on
the left-hand corner of every page signify, among others, that the witnesses are aware that the
page they are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate and apart from the
disposition of the will. An unsigned attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page containing the unsigned
attestation clause, such signatures cannot demonstrate these witnesses’ undertakings in the
clause, since the signatures that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such clause.
Without diminishing the value of the instrumental witnesses’ signatures on each and every
page, the fact must be noted that it is the attestation clause which contains the utterances
reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the
testator, who are required under Article 805 to state the number of pages used upon which the
will is written; the fact that the testator had signed the will and every page thereof; and that
they witnessed and signed the will and all the pages thereof in the presence of the testator
and of one another. The only proof in the will that the witnesses have stated these elemental
facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also
hinge. The requirement under Article 806 that "every will must be acknowledged before a
notary public by the testator and the witnesses" has also not been complied with. The
importance of this requirement is highlighted by the fact that it had been segregated from the
other requirements under Article 805 and entrusted into a separate provision, Article 806. The
non-observance of Article 806 in this case is equally as critical as the other cited flaws in
compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong 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 A.C. No. 5281 February 12, 2008
had designated in the will.
MANUEL L. LEE, petitioner,
It may not have been said before, but we can assert the rule, self-evident as it is under Article vs.
806. A notarial will that is not acknowledged before a notary public by the testator and the ATTY. REGINO B. TAMBAGO, respondent.
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
RESOLUTION
There are two other requirements under Article 805 which were not fully satisfied by the will
CORONA, J.:
in question. We need not discuss them at length, as they are no longer material to the
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty.
disposition of this case. The provision requires that the testator and the instrumental
Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for
witnesses sign each and every page of the will on the left margin, except the last; and that all
notarizing a spurious last will and testament.
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 In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never
margin, her only signature appearing at the so-called "logical end" 44 of the will on its first page. executed the contested will. Furthermore, the spurious will contained the forged signatures of
Also, the will itself is not numbered correlatively in letters on each page, but instead numbered Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution.
with Arabic numerals. There is a line of thought that has disabused the notion that these two
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock
requirements be construed as mandatory. 45Taken in isolation, these omissions, by themselves,
Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of
may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to
complainant.
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 The will was purportedly executed and acknowledged before respondent on June 30,
will. 1965.1 Complainant, however, pointed out that the residence certificate 2 of the testator noted
in the acknowledgment of the will was dated January 5, 1962. 3 Furthermore, the signature of
All told, the string of mortal defects which the will in question suffers from makes the probate
the testator was not the same as his signature as donor in a deed of donation 4 (containing his
denial inexorable.
purported genuine signature). Complainant averred that the signatures of his deceased father
WHEREFORE, the petition is DENIED. Costs against petitioner. in the will and in the deed of donation were "in any way (sic) entirely and diametrically
opposed from (sic) one another in all angle[s]." 5
SO ORDERED.
Complainant also questioned the absence of notation of the residence certificates of the
purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been
forged and merely copied from their respective voters’ affidavits.
Complainant further asserted that no copy of such purported will was on file in the archives
division of the Records Management and Archives Office of the National Commission for
Culture and the Arts (NCCA). In this connection, the certification of the chief of the archives
division dated September 19, 1999 stated:
 Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by
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 complainant was a son of the decedent Vicente Lee, Sr. and
(2) that the will in question was fake and spurious. He alleged that complainant was "not a
legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and
actually notarized 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. Lee, Jr. xxx."9
Respondent further stated that the complaint was filed simply to harass him because the
criminal case filed by complainant against him in the Office of the Ombudsman "did not
prosper."
Respondent did not dispute complainant’s contention that no copy of the will was on file in the
archives division of the NCCA. He claimed that no copy of the contested will could be found
there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he
(complainant) did not first file an action for the declaration of nullity of the will and demand
his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation. 10
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 1.0112 of the Code
of Professional Responsibility (CPR).13 Thus, the investigating commissioner of the IBP
Commission on Bar Discipline recommended the suspension of respondent for a period of
three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with
modification, the Report and Recommendation of the Investigating Commissioner of
the above-entitled case, herein made part of this Resolution as Annex "A"; and,
finding the recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering Respondent’s failure to comply with the
laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is
hereby suspended from the practice of law for one year and Respondent’s notarial
commission is Revoked and Disqualified from reappointment as Notary Public for
two (2) years.14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take effect after his death. 15 A will may
either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of wills. The
object of solemnities surrounding the execution of wills is to close the door on bad faith and
fraud, to avoid substitution of wills and testaments and to 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, Noynay and Grajo. On this
circumstance alone, the will must be considered void. 18 This is in consonance with the rule that
acts executed against the provisions of mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary public by the
testator and the witnesses.19 The importance of this requirement is highlighted by the fact that
it was segregated from the other requirements under Article 805 and embodied in a distinct
and separate provision.20
An acknowledgment is the act of one who has executed a deed in going before some
competent officer or court and declaring it to be his act or deed. It involves an extra step
undertaken whereby the signatory actually declares to the notary public 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 testator’s wishes long after his demise and (2) to assure that his estate is
administered in the manner that he intends it to be done.
A cursory examination of the acknowledgment of the will in question shows that this particular
requirement was neither strictly nor substantially complied with. For one, there was the
conspicuous absence of a notation of the residence certificates of the notarial witnesses
Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old
residence certificate in the same acknowledgment was a clear breach of the law. These
omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to faithfully
observe the formalities of a will and those of notarization. As we held in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries public. They are
required to certify that the party to every document acknowledged before him had
presented the proper residence certificate (or exemption from the residence tax);
and to enter its number, place of issue and date as part of such certification.
These formalities are mandatory and cannot be disregarded, considering the degree of
importance and evidentiary weight attached to notarized documents. 23 A notary public,
especially a lawyer,24 is bound to strictly observe these elementary requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon
notarization of a document or instrument:
Section 251. Requirement as to notation of payment of [cedula] residence tax. –
Every contract, deed, or other document acknowledged before a notary public shall
have certified thereon that the parties thereto have presented their proper [cedula]
residence certificate or are exempt from the [cedula] residence tax, and there shall
be entered by the notary public as a part of such certificate the number, place of
issue, and date of each [cedula] residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence Tax
Act26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any document
before a notary public xxx it shall be the duty of such person xxx with whom such
 transaction is had or business done, to require the exhibition of the residence
certificate showing payment of the residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish the true and correct
identity of the person to whom it is issued, as well as the payment of residence taxes for the
current year. By having allowed decedent to exhibit an expired residence certificate,
respondent failed to comply with the requirements of both the old Notarial Law and the
Residence Tax Act. As much could be said of his failure to demand the exhibition of the
residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the
notarized will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and
the witness. The notary public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court. (emphasis supplied)
Respondent’s failure, inadvertent or not, to file in the archives division a copy of the notarized
will was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries
pertaining to the will in his notarial register. The old Notarial Law required the entry of the
following matters in the notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or acknowledged before him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the
instrument.27
In an effort to prove that he had complied with the abovementioned rule, respondent
contended that he had crossed out a prior entry and entered instead the will of the decedent.
As proof, he presented a photocopy of his notarial register. To reinforce his claim, he presented
a photocopy of a certification 28 stating that the archives division had no copy of the affidavit of
Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the
original is unavailable. The proponent must first prove the existence and cause of the
unavailability of the original,29 otherwise, the evidence presented will not be admitted. Thus,
the photocopy of respondent’s notarial register was not admissible as evidence of the entry of
the execution of the will because it failed to comply with the requirements for the admissibility
of secondary evidence.
In the same vein, respondent’s attempt to controvert the certification dated September 21,
199930 must fail. Not only did he present a mere photocopy of the certification dated March
15, 2000;31 its contents did not squarely prove the fact of entry of the contested will in his
notarial register.
Notaries public must observe with utmost care 32 and utmost fidelity the basic requirements in
the performance of their duties, otherwise, the confidence of the public in the integrity of
notarized deeds will be undermined. 33
Defects in the observance of the solemnities prescribed by law render the entire will invalid.
This carelessness cannot be taken lightly in view of the importance and delicate nature of a
will, considering that the testator and the witnesses, as in this case, are no longer alive to
identify the instrument and to confirm its 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
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. — The following derelictions of duty on the
part of a notary public shall, in the discretion of the proper judge of first instance, be
sufficient ground for the revocation of his commission:
xxx xxx xxx
(b) The failure of the notary to make the proper entry or entries in his notarial
register touching his notarial acts in the manner required by law.
xxx xxx xxx
(f) The failure of the notary to make the proper notation regarding cedula
certificates.36
These gross violations of the law also made respondent liable for violation of his oath as a
lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court 37 and
Canon 138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the
Philippines, uphold the Constitution and obey the laws of the land.40 For a lawyer is the servant
of the law and belongs to a profession to which society has entrusted the administration of law
and the dispensation of justice.41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every
citizen, a lawyer assumes responsibilities well beyond the basic requirements of good
citizenship. As a servant of the law, a lawyer should moreover make himself an example for
others to emulate.42 Being a lawyer, he is supposed to be a model in the community in so far as
respect for the law is concerned. 43
The practice of law is a privilege burdened with conditions. 44 A breach of these conditions
justifies disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a
lawyer upon a finding or acknowledgment that he has engaged in professional
misconduct.45 These sanctions meted out to errant lawyers include disbarment, suspension
and reprimand.
Disbarment is the most severe form of disciplinary sanction. 46 We have held in a number of
cases that the power to disbar must be exercised with great caution 47 and should not be
decreed if any punishment less severe – such as reprimand, suspension, or fine – will
accomplish the end desired. 48 The rule then is that disbarment is meted out only in clear cases
of misconduct that seriously affect the standing and character of the lawyer as an officer of the
court.49
Respondent, as notary public, evidently failed in the performance of the elementary duties of
his office. Contrary to his claims that he "exercised his duties as Notary Public with due care
and with due regard to the provision of existing law and had complied with the elementary
formalities in the performance of his duties xxx," we find that he acted very irresponsibly in
notarizing the will in question. Such recklessness warrants the less severe punishment of
suspension from the practice of law. It is, as well, a sufficient basis for the revocation of his
commission50 and his perpetual disqualification to be commissioned as a notary public. 51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional
misconduct. He violated (1) the Lawyer’s Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1
and Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5)
the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his
notarial commission REVOKED. Because he has not lived up to the trustworthiness expected of
him as a notary public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from
reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the
Philippines and the Office of the Bar Confidant, as well as made part of the personal records of
respondent.
SO ORDERED.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the
documents in the Visayan dialect, marked Exhibits D and E, as the testament and codicil duly
executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and
May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap
as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said
deceased, appealed from the decision, insisting that the said exhibits were not executed in
conformity with law. The appeal was made directly to this Court because the value of the
properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary
capacity and that the dispositions were procured through undue influence. These grounds
were abandoned at the hearing in the court below, where the issue was concentrated into
three specific questions: (1) whether the testament of 1950 was executed by the testatrix in
the presence of the instrumental witnesses; (2) whether the acknowledgment clause was
signed and the notarial seal affixed by the notary without the presence of the testatrix and the
witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective.
These questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to her witnesses Maria
Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma.
Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses
to the will) inform the deceased that he had brought the "testamento" and urge her to go to
attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go,
because she was not feeling well; and that upon Yap's insistence that the will had to be signed
in the attorney's office and not elsewhere, the deceased took the paper and signed it in the
presence of Yap alone, and returned it with the statement that no one would question it
because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial Court's
rejection of the improbable story of the witnesses. It is squarely contradicted by the
concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his
wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix
and witnesses in the presence of each other, at the house of the decedent on General Hughes
St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all three witnesses could have
easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal
flaws in the testimony of Contestant's witnesses. Both claim to have heard the word
"testamento" for the first time when Yap used it; and they claimed ability to recall that word
four years later, despite the fact that the term meant nothing to either. It is well known that
what is to be remembered must first be rationally conceived and assimilated (II Moore on
Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will, and that the
deceased alone signed it, precisely on March 30, 1950; but she could remember no other date,
nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado
claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the
kitchen of the house, that was later proved to have been separated from the deceased's
quarters, and standing at a much lower level, so that conversations in the main building could
not be distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure
his testimony by claiming that he was upstairs in a room where the servants used to eat when
he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly
induced by two highly leading questions from contestant's counsel that had been previously
ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18
years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged
upon us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola
at the signing of the testament or of the codicil, and the identity of the person who inserted
the date therein, are not material and are largely imaginary, since the witness Mrs. Tabiana
confessed inability to remember all the details of the transaction. Neither are we impressed by
the argument that the use of some Spanish terms in the codicil and testament (like legado,
partes iguales, plena propiedad) is proof that its contents were not understood by the
testatrix, it appearing in evidence that those terms are of common use even in the vernacular,
and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate
of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the
testament, this codicil was executed after the enactment of the new Civil Code, and, therefore,
had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses
(who happen to be the same ones who attested the will of 1950) asserted that after the codicil
had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was
signed and sealed by notary public Gimotea on the same occasion. On the other hand,
Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and
sealed it there. The variance does not necessarily imply conscious perversion of truth on the
part of the witnesses, but appears rather due to a well-established phenomenon, the tendency
of the mind, in recalling past events, to substitute the usual and habitual for what differs
slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification
of acknowledgment in the presence of the testatrix and the witnesses, does not affect the
validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require
that the signing of the testator, witnesses and notary should be accomplished in one single act.
A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and
witnesses sign in the presence of each other, all that is thereafter required is that "every will
must be acknowledged before a notary public by the testator and the witnesses" (Art. 806);
i.e., that the latter should avow to the certifying officer the authenticity of their signatures and G.R. No. L-32213 November 26, 1973
the voluntariness of their actions in executing the testamentary disposition. This was done in
AGAPITA N. CRUZ, Petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of
the case before us. The subsequent signing and sealing by the notary of his certification that
Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, Respondents.
the testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate execution out of the Paul G. Gorrez for petitioner.
presence of the testatrix and her witnesses can not be said to violate the rule that testaments Mario D. Ortiz for respondent Manuel B. Lugay.
should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the
Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was ESGUERRA, J.:
committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the
does not contain words requiring that the testator and the witnesses should acknowledge the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N.
testament on the same day or occasion that it was executed. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"),
The decision admitting the will to probate is affirmed, with costs against appellant. alleging the will was executed through fraud, deceit, misrepresentation and undue influence;
that the said instrument was execute without the testator having been fully informed of the which is to minimize fraud (Report of Code Commission p. 106-107), would be
content thereof, particularly as to what properties he was disposing and that the supposed last thwarted.chanroblesvirtualawlibrarychanrobles virtual law library
will and testament was not executed in accordance with law. Notwithstanding her objection,
Admittedly, there are American precedents holding that notary public may, in addition, act as a
the Court allowed the probate of the said last will and testament Hence this appeal by
witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0.
certiorari which was given due course.chanroblesvirtualawlibrarychanrobles virtual law library
G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing
The only question presented for determination, on which the decision of the case hinges, is merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47
whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson
accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See
at least three credible witnesses to attest and subscribe to the will, and the second requiring alsoTrenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the
the testator and the witnesses to acknowledge the will before a notary law in this jurisdiction or are not decisive of the issue herein because the notaries public and
public.chanroblesvirtualawlibrarychanrobles virtual law library witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. He the notary public acted not only as
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of
Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the
the Civil Code which reads:
Notary Public before whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least three credible witnesses in ART. 806. Every will must be acknowledged before a notary public by the testator and the
the presence of the testator and of each other, considering that the three attesting witnesses witnesses. The notary public shall not be required to retain a copy of the will or file another
must appear before the notary public to acknowledge the same. As the third witness is the with the office of the Clerk of Court. [Emphasis supplied]
notary public himself, petitioner argues that the result is that only two witnesses appeared
To allow the notary public to act as third witness, or one the attesting and acknowledging
before the notary public to acknowledge the will. On the other hand, private respondent-
witnesses, would have the effect of having only two attesting witnesses to the will which
appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of
would be in contravention of the provisions of Article 80 be requiring at least three credible
the trial court, maintains that there is substantial compliance with the legal requirement of
witnesses to act as such and of Article 806 which requires that the testator and the required
having at least three attesting witnesses even if the notary public acted as one of them,
number of witnesses must appear before the notary public to acknowledge the will. The result
bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent,
would be, as has been said, that only two witnesses appeared before the notary public for or
reads as follows:
that purpose. In the circumstances, the law would not be duly in
It is said that there are, practical reasons for upholding a will as against the purely technical observed.chanroblesvirtualawlibrarychanrobles virtual law library
reason that one of the witnesses required by law signed as certifying to an acknowledgment of
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of
the testator's signature under oath rather than as attesting the execution of the instrument.
the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain aside.chanroblesvirtualawlibrarychanrobles virtual law library
that of the appellant that the last will and testament in question was not executed in
Cost against the appellee.
accordance with law. The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and
"before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if
the third witness were the notary public himself, he would have to avow assent, or admit his
having signed the will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to acknowledge his participation
in the making of the will. To permit such a situation to obtain would be sanctioning a sheer
absurdity.chanroblesvirtualawlibrarychanrobles virtual law library
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the
notary public were one of the attesting instrumental witnesses. For them he would be
interested sustaining the validity of the will as it directly involves him and the validity of his
own act. It would place him in inconsistent position and the very purpose of acknowledgment,
 Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S.
Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C.
Aquino for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.

Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et. Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad
del Rosario Sarmiento, Et. Al.

SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE;

[G.R. No. L-26615. April 30, 1970.] TESTATRIX’S DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER
WILL.— The declarations in court of the opthalmologist as to the condition of the testatrix’s
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND eyesight fully establish the fact that her vision remained mainly for viewing distant objects and
DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of not for reading print; that she was, at the time of the execution of the second will on
First Instance of Manila, Branch and CONSUELO GONZALES VDA. DE PRECILLA, Respondents. December 29, 1960, incapable of reading and could not have read the provisions of the will
supposedly signed by her.
[G.R. No. L-26884. April 30, 1970.]
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR.— Upon
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND its face, the testamentary provisions, the attestation clause and acknowledgment were
DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of crammed together into a single sheet of paper, apparently to save on space. Plainly, the
First Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO testament was not prepared with any regard for the defective vision of Dña. Gliceria, the
GONZALES VDA. DE PRECILLA, Respondents. typographical errors remained uncorrected thereby indicating that the execution thereof must
have been characterized by haste. It is difficult to understand that so important a document
[G.R. No. L-27200. April 30, 1970.] containing the final disposition of one’s worldly possessions should be embodied in an
informal and untidy written instrument; or that the glaring spelling errors should have escaped
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE her notice if she had actually retained the ability to read the purported will and had done so.
PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA
NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION, 3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE —
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.— The rationale behind the
PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL requirement of reading the will to the testator if he is blind or incapable of reading the will
ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants. himself is to make the provisions thereof known to him, so that he may be able to object if
they are not in accordance with his wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the 1960 will
there is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the
Philippines that "if the testator is blind, the will shall be read to him twice," have not been
complied with, the said 1960 will suffer from infirmity that affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS;
GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE
MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR.—
Considering that the alleged deed of sale was executed when Gliceria del Rosario was already
practically blind and that the consideration given seems unconscionably small for the
properties, there was likelihood that a case for annulment might be filed against the estate or
heirs of Alfonso Precilla. And the administratrix being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover property that may turn
out to belong to the estate. This, plus her conduct in securing new copies of the owner’s
duplicate of titles without the court’s knowledge and authority and having the contract bind
the land through issuance of new titles in her husband’s name, cannot but expose her to the
charge of unfitness or unsuitability to discharge the trust, justifying her removal from the
administration of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE RIGHT
OF POSSESSION OF REAL PROPERTY." — On the matter of lis pendens, the provisions of the
Rules of Court are clear: notice of the pendency of an action may be recorded in the office of
the register of deeds of the province in which the property is situated, if the action affects "the
title or the right of possession of (such) real property."cralaw virtua1aw library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is simply the
fitness or unfitness of said special administratrix to continue holding the trust, it does not
involve or affect at all the title to, or possession of, the properties covered by TCT Nos. 81735,
81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can
properly be annotated in the record of the titles to the properties.
DECISION
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp.
Proc. No. 62618) admitting to probate the alleged last will an, testament of the late Gliceria
Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate
petitions for mandamus filed by certain alleged heirs of said decedent seeking (1) to compel
the probate court to remove Consuelo S. Gonzales-Precilla as special administratrix of the
estate, for conflict of interest, to appoint a new one in her stead; and (2) to order the Register
of Deeds of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737,
registered in the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to
be properly belonging to the estate of the deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as
follows:chanrob1es virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving
no descendents, ascendants, brother or sister. At the time of her death, she was said to be 90
years old more or less, and possessed of an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased,
petitioned the Court of First Instance of Manila for probate of the alleged last will and
testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her appointment
as special administratrix of the latter’s estate, said to be valued at about P100,000.00, pending
the appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V.
Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956;
(2) Jaime Rosario and children, relatives and legatees in both the 1956 and 1960 wills; Antonio
Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees in the 1956
and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad
del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa
and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, — the latter five
groups of persons all claiming to be relatives of Doña Gliceria within the fifth civil degree. The
oppositions invariably charged that the instrument executed in 1960 was not intended by the
deceased to be her true will; that the signatures of the deceased appearing in the will was
procured through undue and improper pressure and influence the part of the beneficiaries
and/or other persons; that the testatrix did not know the object of her bounty; that the
instrument itself reveals irregularities in its execution, and that the formalities required by law
for such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased,
joined the group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner
Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground that the latter
possesses interest adverse to the estate. After the parties were duly heard, the probate court,
in its order of 2 October 1965, granted petitioner’s prayer and appointed her special
administratrix of the estate upon a bond for P30,000.00. The order was premised on the fact
the petitioner was managing the properties belonging to the estate even during the lifetime of
the deceased, and to appoint another person as administrator or co administrator at that stage
of the proceeding would only result in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent
motion to require the Hongkong & Shanghai Bank to report all withdrawals made against the
funds of the deceased after 2 September 1965. The court denied this motion on 22 October
1965 for being premature, it being unaware that such deposit in the name of the deceased
existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio
Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the
immediate removal of the special administratrix. It was their claim that the special
administratrix and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario
to execute a simulated and fraudulent deed of absolute sale dated 10 January 1961 allegedly
conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land
and the improvements thereon located on Quiapo and San Nicolas, Manila, with a total
assessed value of P334,050.00. Oppositors contended that since it is the duty of the
administrator to protect and conserve the properties of the estate, and it may become
necessary that, an action for the annulment of the deed of sale land for recovery of the
aforementioned parcels of land be filed against the special administratrix, as wife and heir of
Alfonso Precilla, the removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order directing the Special
Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate.
It was alleged that on 22 October 1965, or after her appointment, petitioner Consuelo
Gonzales Vda. de Precilla, in her capacity as special administratrix of the estate of the deceased
Gliceria A. del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for
the issuance of new copies of the owner’s duplicates of certain certificates of title in the name
of Gliceria del Rosario, supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted, new copies of the owner’s
duplicates of certificates appearing the name of Gliceria del Rosario (among which were TCT
Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965,
according to the oppositors, the same special administratrix presented to the Register of Deeds
the deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly
executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in
consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736
and 81737) were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y
Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A.
del Rosario (Exhibit "D"). In declaring the due execution of the will, the probate court took
note that no evidence had been presented to establish that the testatrix was not of sound
mind when the will was executed; that the fact that she had prepared an earlier will did not,
prevent her from executing another one thereafter; that the fact that the 1956 will consisted
of 12 pages whereas the 1960 testament was contained in one page does not render the latter
invalid; that, the erasures and alterations in the instrument were insignificant to warrant
rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were
noted by the oppositors are even indicative of their truthfulness. The probate court, also
considering that petitioner had already shown capacity to administer the properties of the
estate and that from the provisions of the will she stands as the person most concerned and
interested therein, appointed said petitioner regular administratrix with a bond for P50,000.00.
From this order all the oppositors appealed, the case being docketed in this Court as G.R. No.
L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14
December 1965 for the removal of the then special administratrix, as
follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the special administratrix and
to appoint another one in her stead, is in order that an action may be filed against the special
administratrix for the annulment of the deed of sale executed by the decedent on January 10,
1961. Under existing documents, the properties sold pursuant to the said deed of absolute sale
no longer forms part of the estate. The alleged conflict of interest is accordingly not between
different claimants of the same estate. If it is desired by the movants that an action be filed by
them to annul the aforesaid deed absolute sale, it is not necessary that the special
administratrix be removed and that another one be appointed to file such action. Such a
course of action would only produce confusion and difficulties in the settlement of the estate.
The movants may file the aforesaid proceedings, preferably in an independent action, to
secure the nullity of the deed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the
name of the decedent, the same was also denied, for the reason that if the movants were
referring to the old titles, they could no longer be produced, and if they meant the new
duplicate copies thereof that were issued at the instance of the special administratrix, there
would be no necessity therefor, because they were already cancelled and other certificates
were issued in the name of Alfonso Precilla. This order precipitated the oppositors’ filing in this
Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon.
Judge Conrado M. Vasquez, Et. Al.), which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors
requested the Register of Deeds of Manila to annotate a notice of lis pendens in the records of
TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And when said official
refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an order to
compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles
contending that the matter of removal and appointment of the administratrix, involving TCT
Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon denial of this
motion on 12 November 1966, oppositors filed another mandamus action, this time against
the probate court and the Register of Deeds. The case was docketed and given due course in
this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the order
allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del
Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and
written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio
Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose
Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and
acknowledged before notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez
and Rosales uniformly declared that they were individually requested by Alfonso Precilla (the
late husband of petitioner special administratrix) to witness the execution of the last will of
Doña Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074
Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the
testatrix at the time was apparently of clear and sound mind, although she was being aided by
Precilla when she walked; 3 that the will, which was already prepared, was first read "silently"
by the testatrix herself before she signed it; 4 that he three witnesses thereafter signed the will
in the presence of the testatrix and the notary public and of one another. There is also
testimony that after the testatrix and the witnesses to the will acknowledged the instrument to
be their voluntary act and deed, the notary public asked for their respective residence
certificates which were handed to him by Alfonso Precilla, clipped together; 5 that after
comparing them with the numbers already written on the will, the notary public filled in the (pages 20-21, t.s.n., hearing of 23 March 1966)
blanks in the instrument with the date, 29 January 1960, before he affixed his signature and
seal thereto. 6 They also testified that on that occasion no pressure or influence has been The records also show that although Dr. Tamesis operated of the left eye of the decedent at
exerted by any person upon the testatrix to execute the will. the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision
was only "counting fingers," 17 at five feet. The cross-examination of the doctor further
Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 elicited the following responses:jgc:chanrobles.com.ph
will are evident from the records. The will appeared to have been prepared by one who is not
conversant with the spelling of Tagalog words, and it has been shown that Alfonso Precilla is a "Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two of whom
are fellow Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla who "A After her discharge from the hospital, she was coming to my clinic for further examination
instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an and then sometime later glasses were prescribed.
important document, 10 and who took their residence certificates from them a few days
before the will was signed. 11 Precilla had met the notary public and witnesses Rosales and x x x
Lopez at the door of the residence of the old woman; he ushered them to the room at the
second floor where the signing of the document took place; 12 then he fetched witness
Decena from the latter’s haberdashery shop a few doors away and brought him to, the house "Q And the glasses prescribed by you enabled her to read, Doctor?
the testatrix. 13 And when the will was actually executed Precilla was present. 14
"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the
The oppositors-appellants in the present case, however, challenging the correctness of the eye which I operated — she could see only forms but not read. That is on the left eye.
probate court’s ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario
was so poor and defective that she could not have read the provisions of the will, contrary to "Q How about the right eye?
the testimonies of witnesses Decena, Lopez and Rosales.
"A The same, although the vision on the right eye is even better than the left eye." (pages 34.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and 85. t.s.n., hearing of 23 March 1966).
illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified,
among other things, that when Doña Gliceria del Rosario saw him for consultation on 11 Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965
March 1960 he found her left eye to have cataract (opaque lens), 15 and that it was "above certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under
normal in pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to medical supervision up to 1963 with apparently good vision", the doctor had this to
the conditions of her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph say:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C "Q When yon said that she had apparently good vision you mean that she was able to read?
and 3-D from which you could inform the court as to the condition of the vision of the patient
as to the right eve? "A No, not necessarily, only able to go around, take care of herself and see. This I can tell you,
this report was made on pure recollections and I recall she was using her glasses although I
"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself recall also that we have to give her medicines to improve her vision, some medicines to
which showed that the right eye with my prescription of glasses had a vision of 2 over 60 improve her identification some more.
(20/60) and for the left eye with her correction 20 over 300 (20/300).
x x x
"Q In layman’s language, Doctor, what is the significance of that notation that the right had a
degree of 20 over 60 (20/60)?
"Q What about the vision in the right eve, was that corrected by the glasses?
"A It meant that eye at least would be able to recognize objects or persons at a minimum
distance of twenty feet. "A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.

"Q But would that grade enable the patient to read print? "Q The vision in the right eye was corrected?

"A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw "A Yes That is the vision for distant objects."cralaw virtua1aw library
virtua1aw library
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has
first hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963,
fully establish the fact that notwithstanding the operation and removal of the cataract in her
left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained
mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable
that with the condition of her eyesight in August, 1960, and there is no evidence that it had
improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and could not
have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth
noting that the instrumental witnesses stated that she read the instrument "silently" (t.s.n.,
pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the appearance of the
will, Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together into a single sheet of paper,
to much so that the words had to be written very close on the top, bottom and two sides of
the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &",
apparently to save on space. Plainly, the testament was not prepared with any regard for the
defective vision of Doña Gliceria. Further, typographical errors like "HULINH" for "HULING"
(last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental",
and "acknowledged" for "acknowledge’’, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of one’s worldly possessions should be
embodied in an informal and untidily written instrument; or that the glaring spelling errors
should have escaped her notice if she had actually retained the ability to read the purported
will and had done so. The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that its admission to
probate was erroneous and should be reversed.
That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and
attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as
appears from the photographs, Exhibits "E" to "E-1", in no way proves; that she was able to
read a closely typed page, since the acts shown do not require vision at close range. It must be
remembered that with the natural lenses removed, her eyes had lost the power of adjustment
to near vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the
signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of one’s name, when sufficiently practiced, becomes automatic,
so that one need only to have a rough indication of the place where the signature is to be
affixed in order to be able to write it. Indeed, a close examination of the checks, amplified in
the photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the alleged
testatrix could not see at normal reading distance: the signatures in the checks are written far
above the printed base, lines, and the names of the payees as well as the amounts written do
not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more
fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario
was, as appellant oppositors contend, not unlike a blind testator, and the due execution of her
will would have required observance of the provisions of Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged."cralaw virtua1aw library
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), 18 is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with his
wishes. That the aim of the law is to insure that the dispositions of the will are properly
communicated to and understood by the handicapped testator, thus making them truly
reflective of his desire, is evidenced by the requirement that the will should be read to the
latter, not only once but twice, by two different persons, and that the witnesses have to act
within the range of his (the testator’s) other senses. 19
In connection with the will here in question, there is nothing in the records to show that the
above requisites have been complied with. Clearly, as already stated, the 1960 will sought to
be probated suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by
the probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as
special administratrix of the estate of the deceased Doña Gliceria (Petition, G.R. No. L-26615,
Annex "B").
The oppositors’ petition was based allegedly on the existence in the special administratrix of
an interest adverse to that of the estate. It was their contention that through fraud her
husband had caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10
January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla,
married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the
improvements thereon, assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P",
Petition) reasoned out that since the properties were already sold no longer form part of the
estate. The conflict of interest would not be between the estate and third parties, but among
the different claimants of said properties, in which case, according to the court, the
participation of the special administratrix in the action for annulment that may be brought
would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned was precisely
the validity of the conveyance or sale of the properties. In short, if proper, the action for
annulment would have to be undertaken on behalf of the estate by the special administratrix,
affecting as it does the property or rights of the deceased. 20 For the rule is that only where
there is no special proceeding for the settlement of the estate of the deceased may the legal
heirs commence an action arising out of a right belonging to their ancestor. 21
There is no doubt that to settle the question of the due execution and validity of the deed of
sale, an ordinary and separate action would have to be instituted, the matter not falling within
the competence of the probate court. 22 Considering the facts then before it, i.e., the alleged
deed of sale having been executed by Gliceria del Rosario on 10 January 1961, when she was
already practically blind; and that the consideration of P30,000.00 seems to be unconscionably
small for properties with a total assessed value of P334,050.00, there was likelihood that a
case for annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And
the administratrix, being the widow and heir of the alleged transferee, cannot be expected to
sue herself in an action to recover property that may turn out to belong to the estate. 22 Not
only this, but the conduct of the special administratrix in securing new copies of the owner’s
duplicates of TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority,
and on the pretext that she needed them in the preparation of the inventory of the estate,
when she must have already known by then that the properties covered therein were already
"conveyed" to her husband by the deceased, being the latter’s successor, and having the
contract bind the land through issuance of new titles in her husband’s name cannot but expose
her to the charge of unfitness or unsuitableness to discharge the trust, justifying her removal
from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the
Hongkong and Shanghai Bank to report all withdrawals made against the funds of the
deceased after 2 September 1965 and (2) the motion for annotation of a lis pendens notice on
TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not
have taken action on the complaint against the alleged withdrawals from the bank deposits of
the deceased, because as of that time the court had not yet been apprised that such deposits
exist. Furthermore, as explained by the special administratrix in her pleading of 30 October
1965, the withdrawals referred to by the oppositors could be those covered by checks issued in
the name of Gliceria del Rosario during her lifetime but cleared only after her death. That
explanation, which not only appears plausible but has not been rebutted by the petitioners-
oppositors, negates any charge of grave abuse in connection with the issuance of the order
here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear:
notice of the pendency of an action may be recorded in the office of the register of deeds of
the province in which the property is situated, if the action affects "the title or the right of
possession of (such) real property." 23 In the case at bar, the pending action which oppositors
seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus
proceeding filed in this Court (G.R. No. L-26615). As previously discussed in this opinion,
however, that case is concerned merely with the correctness of the denial by the probate court
of the motion for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of
the estate of the late Gliceria del Rosario. In short, the issue in controversy there is simply the
fitness or unfitness of said special administratrix to continue holding the trust; it does not
involve or affect at all the title to, or possession of, the properties covered by said TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can
properly be annotated in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged
1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-
26615 being meritorious, the appealed order is set aside and the court below is ordered to
remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs
intestate of the deceased Doña Gliceria Avelino del Rosario as special administrator for the
purpose of instituting action on behalf of her estate to recover the properties allegedly sold by
her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.

G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO, Petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding Justice,
HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
RINO, Respondents.
Vicente R. Redor for petitioner.chanrobles virtual law library
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of
the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated
27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will
and testament 3 with codicil 4 of the late Brigido Alvarado.chanroblesvirtualawlibrarychanrobles
virtual law library
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling
Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a
previously executed holographic will at the time awaiting probate before Branch 4 of the
Regional Trial Court of sta. Cruz, Laguna.chanroblesvirtualawlibrarychanrobles virtual law
library
As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final draft of the
will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document,
read the same aloud in the presence of the testator, the three instrumental witnesses and the
notary public. The latter four followed the reading with their own respective copies previously
furnished them.chanroblesvirtualawlibrarychanrobles virtual law library
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December
1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private respondent who read it
aloud in his presence and in the presence of the three instrumental witnesses (same as those
of the notarial will) and the notary public who followed the reading using their own
copies.chanroblesvirtualawlibrarychanrobles virtual law library
A petition for the probate of the notarial will and codicil was filed upon the testator's death on
3 January 1979 by private respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was not executed and attested as
required by law; that the testator was insane or otherwise mentally incapacitated to make a
will at the time of its execution due to senility and old age; that the will was executed under
duress, or influence of fear and threats; that it was procured by undue and improper pressure
and influence on the part of the beneficiary who stands to get the lion's share of the testator's
estate; and lastly, that the signature of the testator was procured by fraud or
trick.chanroblesvirtualawlibrarychanrobles virtual law library
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to
respondent court. The main thrust of the appeal was that the deceased was blind within the
meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was
executed; that since the reading required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and codicil should have been
denied.chanroblesvirtualawlibrarychanrobles virtual law library
On 11 April 1986, the Court of Appeals rendered the decision under review with the following
findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed;
that assuming his blindness, the reading requirement of Art. 808 was substantially complied
with when both documents were read aloud to the testator with each of the three
instrumental witnesses and the notary public following the reading with their respective copies
of the instruments. The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its purpose of making known to
the testator the contents of the drafted will was served.chanroblesvirtualawlibrarychanrobles
virtual law library
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art,
808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-
reading requirement of said article complied with?chanrobles virtual law library
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not
totally blind at the time the will and codicil were executed. However, his vision on both eyes
was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been
suffering from for several years and even prior to his first consultation with an eye specialist
on
14 December 1977.chanroblesvirtualawlibrarychanrobles virtual law library
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind"
testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil
were executed, he can be so considered within the scope of the term as it is used in Art. 808.
To support his stand, petitioner presented before the trial court a medical certificate issued by
Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa,
whose expertise was admitted by private respondent. 7 Dr. Roasa explained that although the
testator could visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation. 8chanrobles
virtual law library
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the
testator could still read on the day the will and the codicil were executed but chose not to do
so because of "poor eyesight." 9 Since the testator was still capable of reading at that time, the
court a quo concluded that Art. 808 need not be complied
with.chanroblesvirtualawlibrarychanrobles virtual law library
We agree with petitioner in this respect.chanroblesvirtualawlibrarychanrobles virtual law
library
Regardless of respondent's staunch contention that the testator was still capable of reading at
the time his will and codicil were prepared, the fact remains and this was testified to by his
witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or
"blurred" 12 vision making it necessary for private respondent to do the actual reading for
him.chanroblesvirtualawlibrarychanrobles virtual law library
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the
term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof
known to him, so that he may be able to object if they are not in accordance with his
wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those
who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido
Alvarado was incapable of reading the final drafts of his will and codicil on the separate
occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no
other course for us but to conclude that Brigido Alvarado comes within the scope of the term
"blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so confortably with
his instructions. Hence, to consider his will as validly executed and entitled to probate, it is
essential that we ascertain whether Art. 808 had been complied
with.chanroblesvirtualawlibrarychanrobles virtual law library
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice;
once, by one of the instrumental witnesses and, again, by the notary public before whom the
will was acknowledged. The purpose is to make known to the incapacitated testator the
contents of the document before signing and to give him an opportunity to object if anything is
contrary to his instructions.chanroblesvirtualawlibrarychanrobles virtual law library
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will
and the five-paged codicil who read the same aloud to the testator, and read them only once,
not twice as Art. 808 requires.chanroblesvirtualawlibrarychanrobles virtual law library
Private respondent however insists that there was substantial compliance and that the single
reading suffices for purposes of the law. On the other hand, petitioner maintains that the only
valid compliance or compliance to the letter and since it is admitted that neither the notary
public nor an instrumental witness read the contents of the will and codicil to Brigido, probate
of the latter's will and codicil should have been
disallowed.chanroblesvirtualawlibrarychanrobles virtual law library
We sustain private respondent's stand and necessarily, the petition must be
denied.chanroblesvirtualawlibrarychanrobles virtual law library
This Court has held in a number of occasions that substantial compliance is acceptable where
the purpose of the law has been satisfied, the reason being that the solemnities surrounding
the execution of wills are intended to protect the testator from all kinds of fraud and trickery
but are never intended to be so rigid and inflexible as to destroy the testamentary
privilege. 14chanrobles virtual law library
In the case at bar, private respondent read the testator's will and codicil aloud in the presence
of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent
thereto, the testator affirmed, upon being asked, that the contents read corresponded with his
instructions. Only then did the signing and acknowledgement take place. There is no evidence,
and petitioner does not so allege, that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to the "Huling
Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that
Brigido Alvarado already acknowledged that the will was drafted in accordance with his
expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's
residence precisely for the purpose of securing his conformity to the draft. 15chanrobles virtual
law library
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary
public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the
testator's physician) asked the testator whether the contents of the document were of his own
free will. Brigido answered in the affirmative. 16 With four persons following the reading word
for word with their own copies, it can be safely concluded that the testator was reasonably
assured that what was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten documents. This is
especially true when we consider the fact that the three instrumental witnesses were persons
known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood.chanroblesvirtualawlibrarychanrobles virtual
law library
The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of
the will, the formal imperfections should be brushed aside when they do not affect its purpose
and which, when taken into account, may only defeat the testator's will. 17chanrobles virtual
law library
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on the subject should be interpreted in such a way
as to attain these primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and
frustrative of the testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere
reason that a legal requirement intended for his protection was not followed strictly when
such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e.,
to make known to the incapacitated testator the contents of the draft of his will, had already
been accomplished. To reiterate, substantial compliance suffices where the purpose has been
served.chanroblesvirtualawlibrarychanrobles virtual law library
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals
dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained
pending, this decision is immediately executory. Costs against
petitioner.chanroblesvirtualawlibrarychanrobles virtual law library
SO ORDERED.
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO,
VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by
his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented
herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of
Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the
issue of whether or not the attestation clause contained in the last will and testament of the
late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809,
of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any children
and already in the twilight years of his life, executed a last will and testament at his residence
in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando
and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad,
and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared
therein, among other things, that the testator was leaving by way of legacies and devises his
real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to
the testator.2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as
Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu
seeking the probate of his last will and testament. The probate court set the petition for
hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed
for one reason to another. On May 29, 1980, the testator passed away before his petition could
finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the
legatees named in the will, sough his appointment as special administrator of the testator's
estate, the estimated value of which was P24,000.00, and he was so appointed by the probate
court in its order of March 6, 1981.4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate
proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment
of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of
the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June
21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special
Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will
had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually
assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the
alleged date of its execution, the testator was already in the poor state of health such that he
could not have possibly executed the same. Petitioners likewise reiterated the issue as to the
genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty.
Filoteo Manigos, testified that the testator executed the will in question in their presence while
he was of sound and disposing mind and that, contrary to the assertions of the oppositors,
Mateo Caballero was in good health and was not unduly influenced in any way in the execution
of his will. Labuca also testified that he and the other witnesses attested and signed the will in
the presence of the testator and of each other. The other two attesting witnesses were not
presented in the probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the
last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors
cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo
Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it
would seem that despite their avowal and intention for the examination of
this signature of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented Aurea Caballero
and Helen Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance with
all the requisites of the law.9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the
Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is
null and void for the reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed the testator signing the
will in their presence and that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may
be considered as having substantialy complied with the requirements of
Art. 805 of the Civil Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the testament was
read by him and the attestator, Mateo Caballero, has published unto us the
foregoing will consisting of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters of the upper part of each page,
as his Last Will and Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin in the presence of the said testator and in the presence of each and
all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of
one another. Or as the language of the law would have it that the testator
signed the will "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 not completely or ideally
perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same
was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us.
Petitioners assert that respondent court has ruled upon said issue in a manner not in accord
with the law and settled jurisprudence on the matter and are now questioning once more, on
the same ground as that raised before respondent court, the validity of the attestation clause
in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our resolution
of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after
his death. 13 Under the Civil Code, there are two kinds of wills which a testator may
execute.14 the first kind is the ordinary or attested will, the execution of which is governed by
Articles 804 to 809 of the Code. Article 805 requires that:
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 should 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 witness, it shall possible and easy to add the clause on a subsequent occasion in the absence of the testator
be interpreted to them. and its witnesses.28
In addition, the ordinary will must be acknowledged before a notary public by a testator and In its report, the Code Commission commented on the reasons of the law for requiring the
the attesting witness. 15hence it is likewise known as notarial will. Where the attestator is deaf formalities to be followed in the execution of wills, in the following manner:
or deaf-mute, Article 807 requires that he must personally read the will, if able to do so.
The underlying and fundamental objectives permeating the provisions on
Otherwise, he should designate two persons who would read the will and communicate its
the law on wills in this Project consists in the liberalization of the manner
contents to him in a practicable manner. On the other hand, if the testator is blind, the will
of their execution with the end in view of giving the testator more freedom
should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the
in expressing his last wishes, but with sufficient safeguards and restrictions
notary public before whom it is acknowledged. 16
to prevent the commission of fraud and the exercise of undue and
The other kind of will is the holographic will, which Article 810 defines as one that is entirely improper pressure and influence upon the testator.
written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type,
This objective is in accord with the modern tendency with respect to the
requires no attestation by witnesses. A common requirement in both kinds of will is that they
formalities in the execution of wills. . . .29
should be in writing and must have been executed in a language or dialect known to the
testator. 17 2. An examination of the last will and testament of Mateo Caballero shows that it is comprised
of three sheets all of which have been numbered correlatively, with the left margin of each
However, in the case of an ordinary or attested will, its attestation clause need not be written
page thereof bearing the respective signatures of the testator and the three attesting
in a language or dialect known to the testator since it does not form part of the testamentary
witnesses. The part of the will containing the testamentary dispositions is expressed in the
disposition. Furthermore, the language used in the attestation clause likewise need not even
Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation
be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that,
clause in question, on the other hand, is recited in the English language and is likewise signed
in such a case, the attestation clause shall be interpreted to said witnesses.
at the end thereof by the three attesting witnesses hereto. 30 Since it is the proverbial bone of
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses contention, we reproduce it again for facility of reference:
certify that the instrument has been executed before them and to the manner of the execution
We, the undersigned attesting Witnesses, whose Residences and postal
the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of
addresses appear on the Opposite of our respective names, we do hereby
execution and once signed by the witnesses, it gives affirmation to the fact that compliance
certify that the Testament was read by him and the testator, MATEO
with the essential formalities required by law has been observed. 20 It is made for the purpose
CABALLERO; has published unto us the foregoing Will consisting of THREE
of preserving in a permanent form a record of the facts that attended the execution of a
PAGES, including the Acknowledgment, each page numbered correlatively
particular will, so that in case of failure of the memory of the attesting witnesses, or other
in the letters on the upper part of each page, as his Last Will and Testament
casualty, such facts may still be proved. 21
and he has the same and every page thereof, on the spaces provided for
Under the third paragraph of Article 805, such a clause, the complete lack of which would his signature and on the left hand margin, in the presence of the said
result in the invalidity of the will, 22 should state (1) the number of the pages used upon which testator and in the presence of each and all of us.
the will is written; (2) that the testator signed, or expressly caused another to sign, the will and
It will be noted that Article 805 requires that the witness should both attest and subscribe to
every page thereof in the presence of the attesting witnesses; and (3) that the attesting
the will in the presence of the testator and of one another. "Attestation" and "subscription"
witnesses witnessed the signing by the testator of the will and all its
differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The
pages, and that saidwitnesses also signed the will and every page thereof in the presence of
former is mental, the latter mechanical, and to attest a will is to know that it was published as
the testator and of one another.
such, and to certify the facts required to constitute an actual and legal publication; but to
The purpose of the law in requiring the clause to state the number of pages on which the will subscribe a paper published as a will is only to write on the same paper the names of the
is written is to safeguard against possible interpolation or omission of one or some of its pages witnesses, for the sole purpose of identification. 31
and to prevent any increase or decrease in the pages; 23 whereas the subscription of the
In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's
signature of the testator and the attesting witnesses is made for the purpose of authentication
execution of the will in order to see and take note mentally that those things are done which
and identification, and thus indicates that the will is the very same instrument executed by the
the statute requires for the execution of a will and that the signature of the testator exists as a
testator and attested to by the witnesses.24
fact. On the other hand, subscription is the signing of the witnesses' names upon the same
Further, by attesting and subscribing to the will, the witnesses thereby declare the due paper for the purpose of identification of such paper as the will which was executed by the
execution of the will as embodied in the attestation clause. 25 The attestation clause, therefore, testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a
provide strong legal guaranties for the due execution of a will and to insure the authenticity physical examination of the will whether the witnesses had indeed signed in the presence of
thereof.26 As it appertains only to the witnesses and not to the testator, it need be signed only the testator and of each other unless this is substantially expressed in the attestation.
by them.27 Where it is left unsigned, it would result in the invalidation of the will as it would be
It is contended by petitioners that the aforequoted attestation clause, in contravention of the
express requirements of the third paragraph of Article 805 of the Civil Code for attestation
clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will
and all its pages in their presence and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for
his signature and on the left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in the
presence of each and all of us" may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to
be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in
the attestation clause obviously cannot be characterized as merely involving the form of the
will or the language used therein which would warrant the application of the substantial
compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid
if it is not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805" (Emphasis
supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at
the left margin of each page by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed their respective signatures in the
presence of the testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed signed, but it does not
prove that the attesting witnesses did subscribe to the will in the presence of the testator and
of each other. The execution of a will is supposed to be one act so that where the testator and
the witnesses sign on various days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809,
wherein he urged caution in the application of the substantial compliance rule therein, is
correct and should be applied in the case under consideration, as well as to future cases with
similar questions:
. . . 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 theses 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. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be
with respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In this regard, however, the manner of
proving the due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact
that the attesting witnesses signed each and every page of the will in the presence of the
testator and of each other. 35 In such a situation, the defect is not only in the form or language
of the attestation clause but the total absence of a specific element required by Article 805 to
be specifically stated in the attestation clause of a will. That is precisely the defect complained
of in the present case since there is no plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages and that said
instrumental witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on
by respondents since it presupposes that the defects in the attestation clause can be cured or
supplied by the text of the will or a consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual requirements were
actually complied within the execution of the will. In other words, defects must be remedied
by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts may be
plausibly deduced. What private respondent insists on are the testimonies of his witnesses
alleging that they saw the compliance with such requirements by the instrumental witnesses,
oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and
would accordingly be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as
to which manner of interpretation should be followed in resolving issues centering on
compliance with the legal formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of
Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting
said formalities found in Act. No. 190 and the amendment thereto were practically reproduced
and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the
case of Abangan vs. Abangan,36 where it was held that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain these primordial ends.
Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will, hence when an
interpretation already given assures such ends, any other interpretation whatsoever that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded. The subsequent cases of Avera vs. Garcia,37 Aldaba vs.
Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et
al.,41and Nayve vs. Mojal, et al.42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities that
should be observed in the execution of wills are mandatory in nature and are to be strictly
construed was followed in the subsequent cases of In the Matter of the Estate of
Saguinsin,43 In re Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of Neumark, 46and Sano
vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will and each and every page thereof
on the left margin in the presence of the testator. The will in question was disallowed, with
these reasons therefor:
In support of their argument on the assignment of error above-mentioned,
appellants rely on a series of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing
with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil.,
841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee
counters with the citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.
Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46
Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil.,
152). In its last analysis, our task is to contrast and, if possible, conciliate
the last two decisions cited by opposing counsel, namely, those of Sano vs.
Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each
and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must estate
the fact that the testator and the witnesses reciprocally saw the signing of
the will, for such an act cannot be proved by the mere exhibition of the
will, if it is not stated therein. It was also held that the fact that the testator
and the witnesses signed each and every page of the will can be proved
also by the mere examination of the signatures appearing on the
document itself, and the omission to state such evident facts does not
invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet here, unless aided impossible to
reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points
may be mentioned. In the first place, the Mojal, decision was concurred in
by only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in December, 1925; the
Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The
law of the case is here found in section 61 of the Code of Civil Procedure as
amended by Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as amended that
"No will . . . shall be valid . . . unless . . .." It is further provided in the same
section that "The attestation shall state the number of sheets or 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 three witnesses, and
the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other." Codal section 634 provides
that "The will shall be disallowed in either of the following case: 1.
If not executed and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative intention. It is not within
the province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra,
and, to the extent necessary, modify the decision in the case of Nayve vs.
Mojal and Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that
once more appeared to revive the seeming diversity of views that was earlier threshed out
therein. The cases of Quinto vs. Morata,49Rodriguez vs. Alcala,50 Enchevarria vs.
Sarmiento,51 and Testate Estate of Toray52 went the way of the ruling as restated in Gumban.
But De Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De Gorostiza,55Sebastian
vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs.
Martir,60 Alcala vs. De Villa,61 Sabado vs. It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict an examination of the will itself, without the need of resorting to extrinsic evidence, will not be
interpretation rule and established a trend toward an application of the liberal view. fatal and, correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
evidence aliunde would result in the invalidation of the attestation clause and ultimately, of
inclination towards a liberal construction, recommended the codification of the substantial
the will itself.67
compliance rule, as it believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court
the Civil Code, with this explanation of the Code Commission: is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith
DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and
The present law provides for only one form of executing a will, and that is,
Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of
in accordance with the formalities prescribed by Section 618 of the Code of
the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the
Civil Procedure as amended by Act No. 2645. The Supreme Court of the
settlement of the estate of the said decedent.
Philippines had previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section 618 of the SO ORDERED.
Code of Civil Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator in disposing of his
property.
However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated in the cases of Rodriguez
vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically
gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To turn
this attitude into a legislative declaration and to attain the main objective
of the proposed Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
G.R. Nos. 83843-44 April 5, 1990
"Art. 829. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO
and imperfections in the form of attestation or in the LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA LABRADOR, and
language used therein shall not render the will invalid if CRISTOBAL LABRADOR, petitioners-appellants,
it is proved that the will was in fact executed and vs.
attested in substantial compliance with all the COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-
requirements of article 829."65 appellees.
The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or Benjamin C. Santos Law Offices for petitioners.
difficulty, nor does it open the door to serious consequences. The later decisions do tell us Rodrigo V. Fontelera for private respondents.
when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will, an exploration into its confines,
to ascertain its meaning or to determine the existence or absence of the requisite formalities PARAS, J.:
of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire The sole issue in this case is whether or not the alleged holographic will of one Melecio
results." Labrador is dated, as provided for in Article 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in
the Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel
of land designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the
following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria
and Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica
Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as
Special Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his
heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will
has been extinguished or revoked by implication of law, alleging therein that on September 30,
1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor
of oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652
had been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said
parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus,
for the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado
allegedly had already acquired by devise from their father Melecio Labrador under a
holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil
Case No. 934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is
fictitious.
After both parties had rested and submitted their respective evidence, the trial court rendered
a joint decision dated February 28, 1985, allowing the probate of the holographic will and
declaring null and void the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner
Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a
retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988
modified said joint decision of the court a quo by denying the allowance of the probate of the
will for being undated and reversing the order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution
of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I And that referring to the other places of property, where the said property is located,
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE
OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT
DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING
THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted as
follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned and shared or
the partition in favor of SAGRADO LABRADOR which is the fishpond located and
known place as Tagale.
And this place that is given as the share to him, there is a measurement of more or
less one hectare, and the boundary at the South is the property and assignment
share of ENRICA LABRADOR, also their sister, and the boundary in the West is the
sea, known as the SEA as it is, and the boundary on the NORTH is assignment
belonging to CRISTOBAL LABRADOR, who likewise is also their brother. That because
it is now the time for me being now ninety three (93) years, then I feel it is the right
time for me to partition the fishponds which were and had been bought or acquired
by us, meaning with their two mothers, hence there shall be no differences among
themselves, those among brothers and sisters, for it is I myself their father who am
making the apportionment and delivering to each and everyone of them the said
portion and assignment so that there shall not be any cause of troubles or
differences among the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month
of March, 17th day, in the year 1968, and this decision and or instruction of mine is
the matter to be followed. And the one who made this writing is no other than
MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that should
be followed and complied with in order that any differences or troubles may be
forestalled and nothing will happen along these troubles among my children, and
that they will be in good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut
trees and all others like the other kind of bamboo by name of Bayog, it is their right
to get if they so need, in order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers and sisters.
III — THIRD PAGE
the same being the fruits of our earnings of the two mothers of my children, there
shall be equal portion of each share among themselves, and or to be benefitted with
all those property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am
here hereof manifesting of the truth and of the fruits of our labor which their two
mothers, I am signing my signature below hereof, and that this is what should be
complied with, by all the brothers and sisters, the children of their two mothers —
JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who
made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although the
date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with Article
810.1âwphi1 It is worthy of note to quote the first paragraph of the second page of the
holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month
of March, 17th day, in the year 1968, and this decision and or instruction of mine is
the matter to be followed. And the one who made this writing is no other than
MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be placed in the will. The
only requirements are that the date be in the will itself and executed in the hand of the
testator. These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and
assigning the respective assignments of the said fishpond," and was not the date of execution
of the holographic will; hence, the will is more of an "agreement" between the testator and
the beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which defines a will as "an act whereby a person
is permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of
the will is plain from the tenor of the succeeding words of the paragraph. As aptly put by
petitioner, the will was not an agreement but a unilateral act of Melecio Labrador who plainly
knew that what he was executing was a will. The act of partitioning and the declaration that
such partitioning as the testator's instruction or decision to be followed reveal that Melecio
Labrador was fully aware of the nature of the estate property to be disposed of and of the
character of the testamentary act as a means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the
redemption price as erroneous, respondent court's conclusion is incorrect. When private
respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they
were actually selling property belonging to another and which they had no authority to sell,
rendering such sale null and void. Petitioners, thus "redeemed" the property from Navat for
P5,000, to immediately regain possession of the property for its disposition in accordance with
the will. Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand
Pesos (P5,000.00).
SO ORDERED.

G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE
JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding
No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana
Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana
Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26,
1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on
July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-win addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and
states: "This is my win which I want to be respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de
Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively Identified her signature. They further testified that
their deceased mother understood English, the language in which the holographic Will is
written, and that the date "FEB./61 " was the date when said Will was executed by their
mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing
the purported holographic Will of Bibiana R. de Jesus because a it was not executed in
accordance with law, (b) it was executed through force, intimidation and/or under duress,
undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or
did not intend, nor could have intended the said Will to be her last Will and testament at the
time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of
the holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the
alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by
Article 810 of the Civil Code. She contends that the law requires that the Will should contain
the day, month and year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the order
reads:
WHEREFORE, the document purporting to be the holographic Will of
Bibiana Roxas de Jesus, is hereby disallowed for not having been executed
as required by the law. The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code
which reads:
ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need
not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the
Old Civil Code require the testator to state in his holographic Win the "year, month, and day of
its execution," the present Civil Code omitted the phrase Año mes y dia and simply requires
that the holographic Will should be dated. The petitioners submit that the liberal construction
of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is void
for non-compliance with Article 810 of the New Civil Code in that the date must contain the
year, month, and day of its execution. The respondent contends that Article 810 of the Civil
Code was patterned after Section 1277 of the California Code and Section 1588 of the
Louisiana Code whose Supreme Courts had consistently ruled that the required date includes
the year, month, and day, and that if any of these is wanting, the holographic Will is invalid.
The respondent further contends that the petitioner cannot plead liberal construction of
Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the
execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the In particular, a complete date is required to provide against such contingencies as that of two
statutory requirements regarding the due execution of Wills. We should not overlook the competing Wills executed on the same day, or of a testator becoming insane on the day on
liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this
case of doubt is to prevent intestacy — case.
The underlying and fundamental objectives permeating the provisions of We have carefully reviewed the records of this case and found no evidence of bad faith and
the law on wigs in this Project consists in the liberalization of the manner fraud in its execution nor was there any substitution of Wins and Testaments. There is no
of their execution with the end in view of giving the testator more freedom question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written,
in expressing his last wishes, but with sufficien safeguards and restrictions dated, and signed by the testatrix herself and in a language known to her. There is also no
to prevent the commission of fraud and the exercise of undue and question as to its genuineness and due execution. All the children of the testatrix agree on the
improper pressure and influence upon the testator. genuineness of the holographic Will of their mother and that she had the testamentary
capacity at the time of the execution of said Will. The objection interposed by the oppositor-
This objective is in accord with the modem tendency with respect to the
respondent Luz Henson is that the holographic Will is fatally defective because the date
formalities in the execution of wills. (Report of the Code Commission, p.
"FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of
103)
the Civil Code. This objection is too technical to be entertained.
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327)
As a general rule, the "date" in a holographic Will should include the day, month, and year of
he emphasized that:
its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith,
xxx xxx xxx undue influence and pressure and the authenticity of the Will is established and the only issue
... The law has a tender regard for the will of the testator expressed in his is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance
last will and testament on the ground that any disposition made by the with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the
testator is better than that which the law can make. For this reason, principle of substantial compliance.
intestate succession is nothing more than a disposition based upon the WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
presumed will of the decedent. ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard Roxas de Jesus is reinstated.
against fraud and bad faith but without undue or unnecessary curtailment of testamentary SO ORDERED.
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith and fraud in the
exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil.
282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished
by such requisite is actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded by this
Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. ...
 Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na

ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking
mga kamag-anakang sumusunod:

Vicente Esguerra, Sr. ............................................. 5 Bahagi

Fausto E. Gan ......................................................... 2 Bahagi

Rosario E. Gan ......................................................... 2 Bahagi

Filomena Alto .......................................................... 1 Bahagi

Beatriz Alto .............................................................. 1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking

ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang
P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad
Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang
magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed.
G.R. No. L-12190 August 30, 1958 Hence this appeal.
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner- The will itself was not presented. Petitioner tried to establish its contents and due execution by
appellant, the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario
vs. Gan Jimenez, whose testimonies may be summarized as follows:
ILDEFONSO YAP, oppositor-appellee.
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if
her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting, signed and dated
by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it,
in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad
wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the
afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for
the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness,
she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours
later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason
of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet,
opened it and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians,
Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed
to the United States wherein for several weeks she was treated for the disease; that thereafter
she felt well and after visiting interesting places, the couple returned to this country in August
1950. However, her ailment recurred, she suffered several attacks, the most serious of which
happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying
the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her
head held high by her husband. Injections and oxygen were administered. Following the
doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her
personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to keep
her will a secret, so that her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the
absence of a showing that Felina was a confidant of the decedent it is hard to believe that the
latter would have allowed the former to see and read the will several times; (c) it is improbable
that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro
Olarte to read her will, when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse which could for one reason or
another be opened by her husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it
without destroying the will, the theory of the petitioner being precisely that the will was
executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor
and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments,
or most of them, were presented in the motion to reconsider; but they failed to induce the
court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the
criticisms. We deem it unnecessary to go over the same matters, because in our opinion the
case should be decided not on the weakness of the opposition but on the strength of the
evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms.
The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form,
thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person
may execute a holographic will which must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form and may be made in or out of the
Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator
and three credible witnesses in each and every page; such witnesses to attest to the number of
sheets used and to the fact that the testator signed in their presence and that they signed in
the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the
testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil,
40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of
the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is,
the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco,
57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the
court may form its opinion as to the genuineness and authenticity of the testament, and the
circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they are "entirely
written, dated, and signed by the hand of the testator himself." The law, it is reasonable to
suppose, regards the document itself as material proof of authenticity, and as its own
safeguard, since it could at any time, be demonstrated to be — or not to be — in the hands of
the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be
necessary that at least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the testator. If the
will is contested, at least three such witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert
testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will.
They may be mistaken in their opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor may present other witnesses who
also know the testator's handwriting, or some expert witnesses, who after comparing the will
with other writings or letters of the deceased, have come to the conclusion that such will has
not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of
such contradictory testimony may use its own visual sense, and decide in the face of the
document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing
the evidence are not available. And then the only guaranty of authenticity 3 — the testator's
handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony
of witnesses who have allegedly seen it and who declare that it was in the handwriting of the
testator? How can the oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have not examined it. His experts
can not testify, because there is no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be
caught between the upper millstone of his lack of knowledge of the will or the form thereof,
and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses
may be honest and truthful; but they may have been shown a faked document, and having no
interest to check the authenticity thereof have taken no pains to examine and compare. Or
they may be perjurers boldly testifying, in the knowledge that none could convict them of
perjury, because no one could prove that they have not "been shown" a document which they
believed was in the handwriting of the deceased. Of course, the competency of such perjured
witnesses to testify as to the handwriting could be tested by exhibiting to them other writings
sufficiently similar to those written by the deceased; but what witness or lawyer would not
foresee such a move and prepare for it? His knowledge of the handwriting established, the
witness (or witnesses) could simply stick to his statement: he has seen and read a document
which he believed was in the deceased's handwriting. And the court and the oppositor would
practically be at the mercy of such witness (or witnesses) not only as to the execution, but also
as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed
will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet
such Rules could not have contemplated holographic wills which could not then be validly
made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that
it may be lost or stolen4 — an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the
judge, (Art. 689) who shall subscribe it and require its identity to be established by the three
witnesses who depose that they have no reasonable doubt that the will was written by the
testator (Art. 691). And if the judge considers that the identity of the will has been proven he
shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692
bears the same implication, to a greater degree. It requires that the surviving spouse and the
legitimate ascendants and descendants be summoned so that they may make "any statement
they may desire to submit with respect to the authenticity of the will." As it is universally
admitted that the holographic will is usually done by the testator and by himself alone, to
prevent others from knowing either its execution or its contents, the above article 692 could
not have the idea of simply permitting such relatives to state whether they know of the will,
but whether in the face of the document itself they think the testator wrote it. Obviously, this
they can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such
purpose is frustrated when the document is not presented for their examination. If it be
argued that such choice is not essential, because anyway the relatives may oppose, the answer
is that their opposition will be at a distinct disadvantage, and they have the right and
privilege to comply with the will, if genuine, a right which they should not be denied by
withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision
of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn from it. Even in the face
of allegations and testimonial evidence (which was controverted), ascribing the mutilation to
the opponents of the will. The aforesaid tribunal declared that, in accordance with the
provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented;
otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera
estar escrito todo el y firmado por testador, con expression del año, mes y dia en que
se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no
basta la demostracion mas o menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y
por el tiempo en que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de ser presentado
a la Autoridad competente, para au adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez
y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta
de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien
para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto
insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter. 6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la
tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos,
que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere
 connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la One more fundamental difference: in the case of a lost will, the three subscribing witnesses
manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.) would be testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to their
(According to the Fuero above, the will itself must be compared with specimens of the
opinion of the handwriting which they allegedly saw, an opinion which can not be tested in
testators handwriting.)
court, nor directly contradicted by the oppositors, because the handwriting itself is not at
All of which can only mean: the courts will not distribute the property of the deceased in hand.
accordance with his holographic will, unless they are shown his handwriting and signature. 7
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
Parenthetically, it may be added that even the French Civil Law considers the loss of the judge's disbelief. In addition to the dubious circumstances described in the appealed decision,
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, we find it hard to believe that the deceased should show her will precisely to relatives who had
1946, Tomo V, page 555). received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
Taking all the above circumstances together, we reach the conclusion that the execution and amending her will to give them a share, or threaten to reveal its execution to her husband
the contents of a lost or destroyed holographic will may not be proved by the bare testimony Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from
of witnesses who have seen and/or read such will.8 her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not
lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this will.
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to
make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, In fine, even if oral testimony were admissible to establish and probate a lost holographic will,
decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence we think the evidence submitted by herein petitioner is so tainted with improbabilities and
presented by petitioner Fausto E. Gan. inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77,
sec. 6.11
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or Wherefore, the rejection of the alleged will must be sustained.
destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of Judgment affirmed, with costs against petitioner.
authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails the
loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and
acts on the particular day, the likelihood that they would be called by the testator, their
intimacy with the testator, etc. And if they were intimates or trusted friends of the testator
they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but
not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man
could engineer the fraud this way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to let three honest and credible
witnesses see and read the forgery; and the latter, having no interest, could easily fall for it,
and in court they would in all good faith affirm its genuineness and authenticity. The will
having been lost — the forger may have purposely destroyed it in an "accident" — the
oppositors have no way to expose the trick and the error, because the document itself is not at
hand. And considering that the holographic will may consist of two or three pages, and only
one of them need be signed, the substitution of the unsigned pages, which may be the most
important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature —
feasibility of forgery — would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.10

G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased,
MARCELA
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant
to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First
Instance of Rizal for the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in her favor. The petition,
docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim
Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator
as required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take effect
after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof,
must be produced, otherwise it would produce no effect, as held in Gam v.
Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise,
executed and attested as required by law.
The appellees likewise moved for the consolidation of the case with
another case Sp. Proc. No, 8275). Their motion was granted by the court in
an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the
appellees moved again to dismiss the petition for the probate of the will.
They argued that:
(1) The alleged holographic was not a last will but merely an instruction as
to the management and improvement of the schools and colleges founded
by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary
evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the
court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that
RODELAS, petitioner-appellant, the order was contrary to law and settled pronouncements and rulings of
the Supreme Court, to which the appellant in turn filed an opposition. On
July 23, 1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that
'in the matter of holographic wills the law, it is reasonable to suppose,
regards the document itself as the material proof of authenticity of said
wills.
 MOREOVER, this Court notes that the alleged holographic will was
executed on January 25, 1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the fact that the original
of the will could not be located shows to our mind that the decedent had
discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals
in which it is contended that the dismissal of appellant's petition is contrary to law and well-
settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the
appeal does not involve question of fact and alleged that the trial court committed the
following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least one Identifying
witness is required and, if no witness is available, experts may be resorted to. If contested, at
least three Identifying witnesses are required. However, if the holographic will has been lost or
destroyed and no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap,
104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said G.R. No. L-14003 August 5, 1960
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a FEDERICO AZAOLA, petitioner-appellant,
mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of vs.
the handwriting of the deceased may be exhibited and tested before the probate court," CESARIO SINGSON, oppositor-appellee.
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined F. Lavides and L.B. Alcuaz for appellant.
by the probate court. Vicente J. Cuna and P.S. Singson for appellee.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion
for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her
petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court
of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the
determination of the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
 "Briefly speaking, the following facts were established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City,
known to be the last residence of said testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will, submitted the said holographic will (Exh.
C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of
deceased Cesario Singson; that witness Francisco Azaola testified that he saw the
holographic will (Exh. C) one month, more or less, before the death of the testatrix,
as the same was handed to him and his wife; that the witness testified also that he
recognized all the signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement, witness presented the
mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power
of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in court two residence
certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison
purposes; that said witness, Azaola, testified that the penmanship appearing in the
aforesaid documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing in the aforesaid documentary evidence is in the handwriting of
the testatrix as well as the signatures appearing therein are the signatures of the
testatrix; that said witness, in answer to a question of his counsel admitted that the
holographic will was handed to him by the testatrix. "apparently it must have been
written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by counsel if he was familiar
with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked again whether the
penmanship referred to in the previous answer as appearing in the holographic will
(Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it
was also established in the proceedings that the assessed value of the property of
the deceased in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and his
wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and
that the same was actually written either on the 5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent
must present three witnesses who could declare that the will and the signature are in the
writing of the testatrix, the probate being contested; and because the lone witness presented
by the proponent "did not prove sufficiently that the body of the will was written in the
handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one
witness because the will's authenticity was not questioned; and second, that Article 811 does
not mandatorily require the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph,
and if the court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was
not required to produce more than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty of having the probate denied. Since no
witness may have been present at the execution of a holographic will, none being required by
law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the
requisite qualifications is a matter beyond the control of the proponent. For it is not merely a
question of finding and producing any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare (truthfully, of course, even if
the law does not so express) "that the will and the signature are in the handwriting of the
testator". There may be no available witness of the testator's hand; or even if so familiarized,
the witnesses may be unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why
the second paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding paragraph, and
if the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or
what amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the
will is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
742). But it can not be ignored that the requirement can be considered mandatory only in the
case of ordinary testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the
Court deem it necessary", which reveal that what the law deems essential is that the Court
should be convinced of the will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the ill is genuine, it may consider
it unnecessary to call for expert evidence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the Court may still, and in fact it should,
resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true intention of the
testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the
noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto
induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos,
 el Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de proceder en
resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del
testamento olografo lo hace necesario para mayor garantia de todos los interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del
dicho profano de los testigos y un modo de desvanecer las ultimas dudas que
pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar.
Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo
estime conveniente), haya habido o no testigos y dudaran o no estos respecto de los
extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de
su significacion, para responder debidamente de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable
inference can be drawn from a party's failure to offer expert evidence, until and unless the
court expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our
opinion, by giving the parties ample opportunity to adduce additional evidence, including
expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered
remanded to the Court of origin, with instructions to hold a new trial in conformity with this
opinion. But evidence already on record shall not be retaken. No costs.
[G.R. No. 123486. August 12, 1999]
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,vs. EVANGELINE R.
CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, Respondents.
DECISION
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its
resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the authenticity of testators holographic will has been established and the
handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal of
the judgment appealed from and the probate of the holographic will in question be called for.
The rule is that after plaintiff has completed presentation of his evidence and the defendant
files a motion for judgment on demurrer to evidence on the ground that upon the facts and
the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal
is reversed on appeal, the movant loses his right to present evidence in his behalf (Sec. 1 Rule
35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant
case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the
probate of the holographic will of the testator Matilde Seo Vda. de Ramonal. 2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and
legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the
Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of the holographic
will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of
sound and disposing mind when she executed the will on August 30, 1978, that there was no
fraud, undue influence, and duress employed in the person of the testator, and the will was
written voluntarily.
The assessed value of the decedents property, including all real and personal property was
about P400,000.00, at the time of her death. 4cräläwvirtualibräry
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the
petition for probate, alleging that the holographic will was a forgery and that the same is even
illegible. This gives an impression that a third hand of an interested party other than the true
hand of Matilde Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on the will after every
disposition is out of the ordinary. If the deceased was the one who executed the will, and was
not forced, the dates and the signature should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper pressure and influence
on the part of the beneficiaries, or through fraud and trickery.
Respondents presented six (6) witnesses and various documentary evidence. Petitioners
instead of presenting their evidence, filed a demurrer 6 to evidence, claiming that respondents
failed to establish sufficient factual and legal basis for the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which
reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being
well taken, same is granted, and the petition for probate of the document (Exhibit S) on the
purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency
of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal,
the respondents once again reiterated the testimony of the following witnesses, namely: (1)
Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal
Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of
their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special
proceedings for the probate of the holographic will of the deceased was filed. He produced
and identified the. records of the case. The documents presented bear the signature of the
deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of
the handwriting of the testatrix, with the writing treated or admitted as genuine by the party
against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and identify
the voters affidavit of the decedent. However, the voters affidavit was not produced for the
same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her
aunt, and that after the death of Matildes husband, the latter lived with her in her parents
house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close
association with the deceased, she acquired familiarity with her signature and handwriting as
she used to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from
her various tenants of commercial buildings, and the deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of
the accounts, and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de
Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely
written, dated and signed, by the deceased and that all the dispositions therein, the dates, and
the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he
was a practicing lawyer, and handled all the pleadings and documents signed by the deceased
in connection with the intestate proceedings of her late husband, as a result of which he is
familiar with the handwriting of the latter. He testified that the signature appearing in the
holographic will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can
not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the
application of the deceased for pasture permit and was familiar with the signature of the
deceased, since the deceased signed documents in her presence, when the latter was applying
for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long period of time she
became familiar with the signature of the deceased. She testified that the signature appearing
in the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd)Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
"August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay,
Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that the appeal was
meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr.
Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:
x x x even if the genuineness of the holographic will were contested, we are of the opinion
that Article 811 of our present civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at the execution of the
holographic will, none being required by law (art. 810, new civil code), it becomes obvious that
the existence of witnesses possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses who know the handwriting and signature of the testator
and who can declare (truthfully, of course, even if the law does not express) that the will and
the signature are in the handwriting of the testator. There may be no available witness
acquainted with the testators hand; or even if so familiarized, the witness may be unwilling to
give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus
become an impossibility. That is evidently the reason why the second paragraph of article 811
prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or
what amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the
will is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be considered mandatory only in case
of ordinary testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will
is holographic, no witness need be present (art.10), and the rule requiring production of
three witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Art.811, the resort to expert evidence is conditioned by the words if the court
deem it necessary, which reveal that what the law deems essential is that the court should be
convinced of the wills authenticity. Where the prescribed number of witnesses is produced
and the court is convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the court may still, and in fact it should
resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true intention of the
testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
the having the probate denied. No witness need be present in the execution of the holographic
will. And the rule requiring the production of three witnesses is merely permissive . What the
law deems essential is that the court is convinced of the authenticity of the will. Its duty is to
exhaust all available lines of inquiry, for the state is as much interested in the proponent that
the true intention of the testator be carried into effect. And because the law leaves it to the
trial court to decide if experts are still needed, no unfavorable inference can be drawn from a
partys failure to offer expert evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other
witnesses definitely and in no uncertain terms testified that the handwriting and signature in
the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and
the handwriting and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by
the respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been
able to present credible evidence to prove that the date, text, and signature on the
holographic will were written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the
holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are
permissive or mandatory. The article provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare that the signature in the will is
the genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory.
The word shall connotes a mandatory order. We have ruled that shall in a statute commonly
denotes an imperative obligation and is inconsistent with the idea of discretion and that the
presumption is that the word shall, when used in a statute is mandatory. 11cräläwvirtualibräry
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims
to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased
and the evil to be prevented is the possibility that unscrupulous individuals who for their
benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine the
true intent of the deceased. An exhaustive and objective consideration of the evidence is
imperative to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that
they were familiar with the handwriting of the testator. In the case of Augusto Neri, clerk of
court, Court of First Instance, Misamis Oriental, he merely identified the record of Special
Proceedings No. 427 before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the
signature of the deceased in the voters affidavit, which was not even produced as it was no
longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets. 12
xxx
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?
A. Yes, sir.13
xxx What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she
either mailed or gave to her tenants. She did not declare that she saw the deceased sign a
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as
document or write a note.
one of the receipts which she issued to them?
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will
A. Yes, sir.
was not found in the personal belongings of the deceased but was in the possession of Ms.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay. She testified that:
Binanay?
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno
A. Matilde vda. De Ramonal. vda de Ramonal left a will you said, yes?
Q. Why do you say that that is a signature of Matilde vda. De Ramonal? A. Yes, sir.
A. I am familiar with her signature. Q. Who was in possession of that will?
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept A. I.
records of the accounts of her tenants?
Q. Since when did you have the possession of the will?
A. Yes, sir.
A. It was in my mothers possession.
Q. Why do you say so?
Q. So, it was not in your possession?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
A. Sorry, yes.
Q. How is this record of accounts made? How is this reflected?
Q. And when did you come into possession since as you said this was originally in the
A. In handwritten.14 possession of your mother?
xxx A. 1985.17
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale xxx
which you said what else did you do to acquire familiarity of the signature of Matilde Vda De
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you
Ramonal?
and therefore you have that in your possession?
A. Posting records.
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. Aside from that?
Q. After taking that document you kept it with you?
A. Carrying letters.
A. I presented it to the fiscal.
Q. Letters of whom?
Q. For what purpose?
A. Matilde
A. Just to seek advice.
Q. To whom?
Q. Advice of what?
A. To her creditors.15
A. About the will.18
xxx
In her testimony it was also evident that Ms. Binanay kept the fact about the will from
Q. You testified that at the time of her death she left a will. I am showing to you a document petitioners, the legally adopted children of the deceased. Such actions put in issue her motive
with its title tugon is this the document you are referring to? of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seo
A. Yes, sir. Vda. de Ramonal.

Q. Showing to you this exhibit S, there is that handwritten tugon, whose handwriting is this? In the testimony of Ms. Binanay, the following were established:

A. My aunt. Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?

Q. Why do you say this is the handwriting of your aunt? A. Yes, sir.

A. Because I am familiar with her signature.16 Q. She was up and about and was still uprightly and she could walk agilely and she could go to
her building to collect rentals, is that correct?
A. Yes, sir.19 A. During my stay I used to go with her to the church, to the market and then to her
transactions.
xxx
Q. What else? What services that you rendered?
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
retracings in the word Vda.? A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
A. Yes, a little. The letter L is continuous. Q. What was your purpose of going to her lawyer?
Q. And also in Matilde the letter L is continued to letter D? A. I used to be her personal driver.
A. Yes, sir. Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of
Matilde Vda de Ramonal?
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
towards letter D. A. Yes, sir.
A. Yes, sir. Q. How come that you acquired familiarity?
Q. And there is a retracing in the word Vda.? A. Because I lived with her since birth. 22
A. Yes, sir.20 xxx
xxx Q. Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30, 1978 there is
a signature here below item No. 1, will you tell this court whose signature is this?
Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you
identified a document marked as Exhibit R. This is dated January 8,1978 which is only about A. Yes, sir, that is her signature.
eight months from August 30,1978. Do you notice that the signature Matilde Vda de Ramonal
Q. Why do you say that is her signature?
is beautifully written and legible?
A. I am familiar with her signature. 23
A. Yes, sir the handwriting shows that she was very exhausted.
So, the only reason that Evangeline can give as to why she was familiar with the handwriting of
Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly
the deceased was because she lived with her since birth. She never declared that she saw the
and she was agile. Now, you said she was exhausted?
deceased write a note or sign a document.
A. In writing.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. How did you know that she was exhausted when you were not present and you just tried to
Q. Do you know Matilde Vda de Ramonal?
explain yourself out because of the apparent inconsistencies?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am
A. That was I think. (sic)
related to the husband by consanguinity.
Q. Now, you already observed this signature dated 1978, the same year as the alleged
Q. Can you tell the name of the husband?
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and
the signature was written on a fluid movement. x x x And in fact , the name Eufemia R. Patigas A. The late husband is Justo Ramonal.24
here refers to one of the petitioners? xxx
A. Yes, sir. Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing legitimate children?
in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you A. As far as I know they have no legitimate children. 25
will notice the hesitancy and tremors, do you notice that?
xxx
A. Yes, sir.21
Q. You said after becoming a lawyer you practice your profession? Where?
Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that: A. Here in Cagayan de Oro City.

Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
the period of 22 years. Could you tell the court the services if any which you rendered to A. I assisted her in terminating the partition, of properties.
Matilde Ramonal?
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is
that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court
before.26
xxx
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as
exhibit N of the estate of Justo Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal. 27
xxx
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the
other assistance wherein you were rendering professional service to the deceased Matilde Vda
de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to
show that I have assisted then I can recall.28
xxx
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over this document,
Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit S?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the
court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar. 29
xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her signature because it is similar to the signature of
the project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and
disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson, 31ruling that the requirement is merely directory and not
mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of
the testator, which is why if the holographic will is contested, that law requires three witnesses
to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as early as 1985, or five years before
the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only
chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a handwriting expert. Even the
former lawyer of the deceased expressed doubts as to the authenticity of the signature in the
holographic will.
A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some
of the disposition is not readable. There were uneven strokes, retracing and erasures on the
will.
Comparing the signature in the holographic will dated August 30, 1978, 33and the signatures in
several documents such as the application letter for pasture permit dated December 30,
1980,34 and a letter dated June 16, 1978, 35 the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of
the holographic will. We, therefore, cannot be certain that the holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered
remanded to the court of origin with instructions to allow petitioners to adduce evidence in
support of their opposition to the probate of the holographic will of the deceased Matilde Seo
Vda. de Ramonal.
No costs.
SO ORDERED.

G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City,
and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir
of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December
24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound
and disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named provide
and erect at the expose of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole
heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, that the holographic Will contained alterations, corrections, and insertions without
the proper authentication by the full signature of the testatrix as required by Article 814 of the
Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in
part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one
and the same person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the alterations and/or
insertions or additions above-mentioned were not authenticated by the
full signature of the testatrix pursuant to Art. 814 of the Civil Code. The
petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree, nor was it impliedly understood, that
the oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil
Code is applicable to Exhibit "C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by the full signature of the
testatrix Natividad K. Kalaw, the Court will deny the admission to probate
of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations
and/or insertions were the testatrix, the denial to probate of her holographic Will would be
contrary to her right of testamentary disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November
2, 1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole
legal question of whether or not the original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in
a holographic Will litem not been noted under his signature, ... the Will is not thereby
invalidated as a whole, but at most only as respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril
de 1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which alteration
did not carry the requisite of full authentication by the full signature of the testator, the effect
must be that the entire Will is voided or revoked for the simple reason that nothing remains in
the Will after that which could remain valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix. But that change of
mind can neither be given effect because she failed to authenticate it in the manner required
by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures
or alterations in a holographic Will, which affect only the efficacy of the altered words
themselves but not the essence and validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix herein, her real intention cannot be
determined with certitude. As Manresa had stated in his commentary on Article 688 of the
Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un testamento olografo que contenga
palabras tachadas, enmendadas o entre renglones no salvadas por el
testador bajo su firnia segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar a la validez o eficacia
de tales palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine las condiciones
necesarias para la validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas,
que en nada afectasen a la parte esencial y respectiva del testamento,
vinieran a anular este, y ya porque el precepto contenido en dicho parrafo
ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley
del Notariado que declara nulas las adiciones apostillas entrerrenglonados,
raspaduras y tachados en las escrituras matrices, siempre que no se salven
en la forma prevenida, paro no el documento que las contenga, y con
mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca
del pensamiento del testador, o constituyan meros accidentes de ortografia
o de purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este
ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados
sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador manifiesta en el documento.
Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo
un testamento olografo por no estar salvada por el testador la enmienda
del guarismo ultimo del año en que fue extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.