G.R. No.
L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth
Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu
(Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of
Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that "our two parcels of land acquired during our marriage
together with all improvements thereon shall be given to Manuela Rebaca, our
niece, whom we have nurtured since childhood, because God did not give us
any child in our union, Manuela Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living, he or she will continue to enjoy the
fruits of the two lands aforementioned", the said two parcels of land being
covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio
Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on
August 30, 1939, and the aforesaid will was submitted to probate by said
Gervasia and Manuela before the Court of First Instance of Cebu which, after
due publication as required by law and there being no opposition, heard the
evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499,
"declara legalizado el documento Exhibit A como el testamento y ultima
voluntad del finado Bernabe de la Serna con derecho por parte du su viuda
superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A
de gozar de los frutos de los terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria
de los mismos en favor de la logataria universal Manuela Rebaca de Potot
previa prestacion por parte de la misma de una fianza en la sum de P500.00
para responder de cualesquiera reclamaciones que se presentare contra los
bienes del finado Bernabe de la Serna de los aos desde esta fecha" (Act Esp.
499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same will
insofar as Gervasia was concerned was filed on November 6, 1952, being
Special Proceedings No. 1016-R of the same Court of First Instance of Cebu,
but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot
to appear, for the hearing of said petition, the case was dismissed on March 30,
1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of
Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null
and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art.
669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the
testamentary heir, the Court of Appeals reversed, on the ground that the decree of
probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due
execution of the testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits
the making of a will jointly by two or more persons either for their reciprocal
benefit or for the benefit of a third person. However, this form of will has long
been sanctioned by use, and the same has continued to be used; and when, as
in the present case, one such joint last will and testament has been admitted to
probate by final order of a Court of competent jurisdiction, there seems to be no
alternative except to give effect to the provisions thereof that are not contrary to
law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein
our Supreme Court gave effect to the provisions of the joint will therein
mentioned, saying, "assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by
the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has
conclusive effect as to his last will and testament despite the fact that even then the Civil
Code already decreed the invalidity of joint wills, whether in favor of the joint testators,
reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus
committed by the probate court was an error of law, that should have been corrected by
appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938;
In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand
that at the risk of occasional errors judgment of courts should become final at some
definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38
Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed.,
p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by
the 1939 decree admitting his will to probate. The contention that being void the will
cannot be validated, overlooks that the ultimate decision on Whether an act is valid or
void rests with the courts, and here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not include the disposition of the share
of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the
conjugal properties the probate court acquired no jurisdiction, precisely because her
estate could not then be in issue. Be it remembered that prior to the new Civil Code, a
will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will
is considered a separate will of each testator. Thus regarded, the holding of the court of
First Instance of Cebu that the joint will is one prohibited by law was correct as to the
participation of the deceased Gervasia Rebaca in the properties in question, for the
reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her
heirs intestate, and not exclusively to the testamentary heir, unless some other valid will
in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage
could not make them valid when our Civil Codes consistently invalidated them, because
laws are only repealed by other subsequent laws, and no usage to the contrary may
prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the
Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-
G.R. No. 23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala,
Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
G.R. No. L-2071 September 19, 1950
Testate estate of Isabel V. Florendo, deceased. TIRSO DACANAY, petitioner-
appellant,
vs.
PEDRO V. FLORENDO, ET AL., oppositor-appellees.
Sotto and Sotto for appellant.
Alafriz and Alafriz for appellees.
OZAETA, J.:
This is a special proceeding commenced in the Court of First Instance of La Union to
probate a joint and reciprocal will executed by the spouses Isabel V. Florendo and Tirso
Dacanay on October 20, 1940. Isabel V. Florendo having died, her surviving spouse
Tirso Dacanay is seeking to probate said joint and reciprocal will, which provides in
substance that whoever of the spouses, joint testators, shall survive the other, shall
inherit all the properties of the latter, with an agreement as to how the surviving spouse
shall dispose of the properties in case of his or her demise.
The relatives of the deceased Isabel V. Florendo opposed the probate of said will on
various statutory grounds.
Before hearing the evidence the trial court, after requiring and receiving from counsel for
both parties written arguments on the question of whether or not the said joint and
reciprocal will may be probated in view of article 669 of the Civil Code, issued an order
dismissing the petition for probate on the ground that said will is null and void ab initio as
having been executed in violation of article 669 of the Civil Code. From that order the
proponent of the will has appealed.
Article 669 of the Civil Code reads as follows:
ART. 669. Two or more persons cannot make a will conjointly or in the same
instrument, either for their reciprocal benefit or for the benefit of a third person.
We agree with appellant's view, supported by eminent commentators, that the prohibition
of article 669 of the Civil Code is directed against the execution of a joint will, or the
expression by two or more testators of their wills in a single document and by one act,
rather than against mutual or reciprocal wills, which may be separately executed. Upon
this premise, however, appellant argues that article 669 of the Civil Code has been
repealed by Act. No. 190, which he claims provides for and regulates the extrinsic
formalities of wills, contending that whether two wills should be executed conjointly or
separately is but a matter of extrinsic formality.
The question now raised by appellant has recently been decided by this court adversely
to him in In re Will of Victor Bilbao, supra, p. 144. It appears in that case that on October
6, 1931, the spouses Victor Bilbao and Ramona M. Navarro executed a will conjointly,
whereby they directed that "all of our respective private properties both real and
personal, and all of our conjugal properties, and any other property belonging to either or
both of us, be given and transmitted to anyone or either of us, who may survive the other,
or who may remain the surviving spouse of the other." That will was denied probate by
the Court of First Instance of Negros Oriental on the ground that it was prohibited by
article 669 of the Civil Code. The surviving spouse as proponent of the joint will also
contended that said article of the Civil Code has been repealed by sections 614 and 618
of the Code of Civil Procedure, Act No. 190. In deciding that question this court, speaking
through Mr. Justice Montemayor, said:
We cannot agree to the contention of the appellant that the provisions of the
Code of Civil Procedure on wills have completely superseded Chapter I, Title III
of the Civil Code on the same subject matter, resulting in the complete repeal of
said Civil Code provisions. In the study we have made of this subject, we have
found a number of cases decided by this court wherein several articles of the
Civil Code regarding wills have not only been referred to but have also been
applied side by side with the provisions of the Code of Civil Procedure.
xxx xxx xxx
The provision of article 669 of the Civil Code prohibiting the execution of a will
by two or more persons conjointly or in the same instrument either for their
reciprocal benefit or for the benefit of a third person, is not unwise and is not
against public policy. The reason for this provision, especially as regards
husband and wife, is that when a will is made jointly or in the same instrument,
the spouse who is more aggressive, stronger in will or character and dominant
is liable to dictate the terms of the will for his or her own benefit or for that of
third persons whom he or she desires to favor. And, where the will is not only
joint but reciprocal, either one of the spouses who may happen to be
unscrupulous, wicked, faithless or desperate, knowing as he or she does the
terms of the will whereby the whole property of the spouses both conjugal and
paraphernal goes to the survivor, may be tempted to kill or dispose of the other.
Considering the wisdom of the provisions of this article 669 and the fact that it
has not been repealed, at least not expressly, as well as the consideration that
its provisions are not incompatible with those of the Code of Civil Procedure on
the subject of wills, we believe and rule that said article 669 of the Civil Code is
still in force. And we are not alone in this opinion. Mr. Justice Willard as shown
by his Notes on the Civil Code, on page 48 believes that this article 669 is still in
force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33,
favorably cite Justice Willard's opinion that this article is still in force. Judge
Camus in his book on the Civil Code does not include this article among those
he considers repealed. Lastly, we find that this article 669 has been reproduced
word for word in article 818 of the New Civil Code (Republic Act No. 386). The
implication is that the Philippine Legislature that passed this Act and approved
the New Civil Code, including the members of the Code Commission who
prepared it, are of the opinion that the provisions of article 669 of the old Civil
Code are not incompatible with those of the Code of Civil Procedure.
In view of the foregoing, the order appealed from is affirmed, with costs against the
appellant.
Moran, C.J., Paras, Feria, Pablo, Bengzon, Tuason, Montemayor, and Reyes,
JJ., concur.
LETICIA VALMONTE ORTEGA, G.R. No. 157451
Petitioner,
Present:
Panganiban, J.,
Chairman,
- versus - Sandoval-Gutierrez,
Corona,
Carpio Morales, and Garcia, JJ
JOSEFINA C. VALMONTE, Promulgated:
Respondent.
December 16, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of
showing why it should not be allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court,
seeking to reverse and set aside the December 12, 2002 Decision[2] and the March 7,
2003 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed
Decision disposed as follows:
WHEREFORE, the appeal is GRANTED, and the Decision
appealed from is REVERSED and SET ASIDE. In its place judgment is
rendered approving and allowing probate to the said last will and
testament of Placido Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let this case be
remanded to the court a quo for further and concomitant proceedings.[4]
I, PLACIDO VALMONTE, of legal age,
married to Josefina Cabansag Valmonte, and a
resident of 9200 Catmon Street, Makati, Metro
Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this
to be my last will and testament:
1. It is my will that I be buried in the
Catholic Cemetery, under the auspices of the
Catholic Church in accordance with the rites and
said Church and that a suitable monument to be
erected and provided my by executrix (wife) to
perpetuate my memory in the minds of my family
and friends;
2. I give, devise and bequeath unto my
loving wife, JOSEFINA C. VALMONTE, one half
(1/2) portion of the follow-described properties,
which belongs to me as [co-owner]:

The assailed Resolution denied petitioners Motion for Reconsideration. a. Lot 4-A, Block 13 described on plan
Psd-28575, LRC, (GLRO), situated in
The Facts Makati, Metro Manila, described and
covered by TCT No. 123468 of the
The facts were summarized in the assailed Decision of the CA, as follows: Register of Deeds of Pasig, Metro-
Manila registered jointly as co-owners
x x x: Like so many others before him, Placido toiled and lived with my deceased sister (Ciriaca
for a long time in the United States until he finally reached retirement. Valmonte), having share and share
In 1980, Placido finally came home to stay in the Philippines, and he alike;
lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca b. 2-storey building standing on the
Valmonte and titled in their names in TCT 123468. Two years after his above-described property, made of
arrival from the United States and at the age of 80 he wed Josefina strong and mixed materials used as my
who was then 28 years old, in a ceremony solemnized by Judge residence and my wife and located at
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two No. 9200 Catmon Street, Makati, Metro
years of wedded bliss, Placido died on October 8, 1984 of a cause Manila also covered by Tax Declaration
written down as COR PULMONALE. No. A-025-00482, Makati, Metro-
Manila, jointly in the name of my
Placido executed a notarial last will and testament written in deceased sister, Ciriaca Valmonte and
English and consisting of two (2) pages, and dated June 15, 1983 but myself as co-owners, share and share
acknowledged only on August 9, 1983. The first page contains the alike or equal co-owners thereof;
entire testamentary dispositions and a part of the attestation clause,
and was signed at the end or bottom of that page by the testator and 3. All the rest, residue and remainder of
on the left hand margin by the three instrumental witnesses. The my real and personal properties, including my
second page contains the continuation of the attestation clause and savings account bank book in USA which is in the
the acknowledgment, and was signed by the witnesses at the end of possession of my nephew, and all others whatsoever
the attestation clause and again on the left hand margin. It provides in and wherever found, I give, devise and bequeath to
the body that: my said wife, Josefina C. Valmonte;

LAST WILL AND TESTAMENT OF 4. I hereby appoint my wife, Josefina C.

PLACIDO VALMONTE IN THE NAME OF THE Valmonte as sole executrix of my last will and
LORD AMEN: testament, and it is my will that said executrix be
exempt from filing a bond;
 IN WITNESS WHEREOF, I have hereunto
set my hand this 15th day of June 1983 in Quezon
City, Philippines.
The allowance to probate of this will was opposed by Leticia
on the grounds that:
1. Petitioner failed to allege all
assets of the testator, especially those found in
the USA;
2. Petitioner failed to state the
names, ages, and residences of the heirs of the
testator; or to give them proper notice pursuant
to law;
3. Will was not executed and attested as required
by law and legal solemnities and formalities
were not complied with;
4. Testator was mentally incapable to make a will
at the time of the alleged execution he being in
an advance sate of senility;
5. Will was executed under duress, or the
influence of fear or threats;
6. Will was procured by undue and improper
influence and pressure on the part of the
petitioner and/or her agents and/or assistants;
and/or
7. Signature of testator was procured by fraud, or
trick, and he did not intend that the instrument
should be his will at the time of affixing his
signature thereto;
and she also opposed the appointment as Executrix of Josefina
alleging her want of understanding and integrity.
At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who prepared and
notarized the will, and the instrumental witnesses spouses Eugenio
Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition,
the oppositor Leticia and her daughter Mary Jane Ortega testified.
According to Josefina after her marriage with the testator they
lived in her parents house at Salingcob, Bacnotan, La Union but they
came to Manila every month to get his $366.00 monthly pension and
stayed at the said Makati residence. There were times though when to
shave off on expenses, the testator would travel alone. And it was in
one of his travels by his lonesome self when the notarial will was
made. The will was witnessed by the spouses Eugenio and Feliza
Gomez, who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the last will
and testament of her husband, but just serendipitously found it in his
attache case after his death. It was only then that she learned that the
testator bequeathed to her his properties and she was named the
executrix in the said will. To her estimate, the value of property both
real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered
mental infirmity because despite his old age he went alone to the
market which is two to three kilometers from their home cooked and
cleaned the kitchen and sometimes if she could not accompany him,
even traveled to Manila alone to claim his monthly pension. Josefina
also asserts that her husband was in good health and that he was
hospitalized only because of a cold but which eventually resulted in his
death.
Notary Public Floro Sarmiento, the notary public who
notarized the testators will, testified that it was in the first week of June
1983 when the testator together with the three witnesses of the will
went to his house cum law office and requested him to prepare his last
will and testament. After the testator instructed him on the terms and
dispositions he wanted on the will, the notary public told them to come
back on June 15, 1983 to give him time to prepare it. After he had
prepared the will the notary public kept it safely hidden and locked in
his drawer. The testator and his witnesses returned on the appointed
date but the notary public was out of town so they were instructed by
his wife to come back on August 9, 1983, and which they did. Before
the testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano, a
dialect which the testator spoke and understood. He likewise explained
that though it appears that the will was signed by the testator and his
witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was
actually on August 9, 1983. He reasoned that he no longer changed
the typewritten date of June 15, 1983 because he did not like the
document to appear dirty. The notary public also testified that to his
observation the testator was physically and mentally capable at the
time he affixed his signature on the will.
The attesting witnesses to the will corroborated the testimony
of the notary public, and testified that the testator went alone to the
house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon
City and requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his
instructions to Atty. Floro Sarmiento, they were told to return on June
15, 1983; that they returned on June 15, 1983 for the execution of the
will but were asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator executed the will
in question in their presence while he was of sound and disposing
mind and that he was strong and in good health; that the contents of
the will was explained by the notary public in the Ilocano and Tagalog
dialect and that all of them as witnesses attested and signed the will in
 the presence of the testator and of each other. And that during the Whether or not the signature of Placido Valmonte in the subject will
execution, the testators wife, Josefina was not with them. was procured by fraud or trickery, and that Placido Valmonte never
intended that the instrument should be his last will and testament.
The oppositor Leticia declared that Josefina should not inherit
alone because aside from her there are other children from the siblings III.
of Placido who are just as entitled to inherit from him. She attacked the
mental capacity of the testator, declaring that at the time of the Whether or not Placido Valmonte has testamentary capacity at the time
execution of the notarial will the testator was already 83 years old and he allegedly executed the subject will.[8]
was no longer of sound mind. She knew whereof she spoke because
in 1983 Placido lived in the Makati residence and asked Leticias family
to live with him and they took care of him. During that time, the
testators physical and mental condition showed deterioration, In short, petitioner assails the CAs allowance of the probate of the will of Placido
aberrations and senility. This was corroborated by her daughter Mary Valmonte.
Jane Ortega for whom Placido took a fancy and wanted to marry.

Sifting through the evidence, the court a quo held that [t]he
evidence adduced, reduces the opposition to two grounds, namely: This Courts Ruling

1. Non-compliance with the legal solemnities and The Petition has no merit.
formalities in the execution and attestation of the will; and

2. Mental incapacity of the testator at the time of the Main Issue:

execution of the will as he was then in an advanced state Probate of a Will
of senility
At the outset, we stress that only questions of law may be raised in a Petition for
It then found these grounds extant and proven, and accordingly Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the
disallowed probate.[5] evidence presented during the trial may be examined and the factual matters resolved by
this Court when, as in the instant case, the findings of fact of the appellate court differ
from those of the trial court.[9]
The fact that public policy favors the probate of a will does not necessarily mean
that every will presented for probate should be allowed. The law lays down the
Ruling of the Court of Appeals procedures and requisites that must be satisfied for the probate of a will.[10] Verily, Article
839 of the Civil Code states the instances when a will may be disallowed, as follows:
Reversing the trial court, the appellate court admitted the will of Placido Valmonte to
probate. The CA upheld the credibility of the notary public and the subscribing witnesses
who had acknowledged the due execution of the will. Moreover, it held that the testator Article 839. The will shall be disallowed in any of the following
had testamentary capacity at the time of the execution of the will. It added that his sexual cases:
exhibitionism and unhygienic, crude and impolite ways[6] did not make him a person of
unsound mind. (1) If the formalities required by law have not been
complied with;
Hence, this Petition.[7]
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
Issues
Petitioner raises the following issues for our consideration: (3) If it was executed through force or under duress, or
the influence of fear, or threats;
I.
(4) If it was procured by undue and improper pressure
Whether or not the findings of the probate court are entitled to great and influence, on the part of the beneficiary or of some other person;
respect.
(5) If the signature of the testator was procured by fraud;
II.
 (6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of affixing his
signature thereto.
In the present case, petitioner assails the validity of Placido Valmontes will by imputing
fraud in its execution and challenging the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of the
will, but maintains that the circumstances surrounding it are indicative of the existence of
fraud. Particularly, she alleges that respondent, who is the testators wife and sole
beneficiary, conspired with the notary public and the three attesting witnesses
in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the
execution and the attestation of the will.
Petitioner contends that it was highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was] thrice her
age x x x and who happened to be [a] Fil-American pensionado,[11] thus casting doubt on
the intention of respondent in seeking the probate of the will. Moreover, it supposedly
defies human reason, logic and common experience[12] for an old man with a severe
psychological condition to have willingly signed a last will and testament.
We are not convinced. Fraud is a trick, secret device, false statement, or pretense, by
which the subject of it is cheated. It may be of such character that the testator is misled
or deceived as to the nature or contents of the document which he executes, or it may
relate to some extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for the fraud, he would not have made.[13]
We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution.[14] The burden to show otherwise shifts to
the proponent of the will only upon a showing of credible evidence of fraud.
[15]
Unfortunately in this case, other than the self-serving allegations of petitioner, no
evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will.[16] That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty years his
junior, as the sole beneficiary; and disregarded petitioner and her family, who were the
ones who had taken the cudgels of taking care of [the testator] in his twilight years.[17]
Moreover, as correctly ruled by the appellate court, the conflict between the
dates appearing on the will does not invalidate the document, because the law does not
even require that a [notarial] will x x x be executed and acknowledged on the same
occasion.[18] More important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the presence of the testator
and of one another.[19] Furthermore, the testator and the witnesses must acknowledge the
will before a notary public.[20] In any event, we agree with the CA that the variance in the
dates of the will as to its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental witnesses.[21]
The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA --
are reproduced respectively as follows:
Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15
when the testator and his witnesses were supposed to be in
your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your
house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date
when the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses
affixed their respective signature on the first and second
pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the
attestation clause?
A Because I do not like anymore to make some alterations so I put it in
my own handwriting August 9, 1983 on the acknowledgement.
(tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15,
1983, whereas in the acknowledgement it is dated August 9,
1983, will you look at this document and tell us this
discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the
two witnesses; that was first week of June and Atty.
Sarmiento told us to return on the 15th of June but when we
returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you
again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed,
who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25,
1985, pp. 7-8)
 Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three
times?
xxxxxxxxx
A The reason why we went there three times is that, the first week of
June was out first time. We went there to talk to Atty.
Sarmiento and Placido Valmonte about the last will and
testament. After that what they have talked what will be
placed in the testament, what Atty. Sarmiento said was that
he will go back on the 15th of June. When we returned on
June 15, Atty. Sarmiento was not there so we were not able to
sign it, the will. That is why, for the third time we went there on
August 9 and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15,
1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9,
1983.
Q And on August 9, 1983 did you go back to the house of Atty.
Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)[22]
Notably, petitioner failed to substantiate her claim of a grand conspiracy in the
commission of a fraud. There was no showing that the witnesses of the proponent stood
to receive any benefit from the allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence of its due execution.[23] Their
testimony favoring it and the finding that it was executed in accordance with the
formalities required by law should be affirmed, absent any showing of ill motives.[24]
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives the
following guidelines:
Article 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution.
Article 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or that his
mind be wholly unbroken, unimpaired, or shattered by disease, injury
or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary act.
Article 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before making
his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid
interval.
According to Article 799, the three things that the testator must have the ability
to know to be considered of sound mind are as follows: (1) the nature of the estate to be
disposed of, (2) the proper objects of the testators bounty, and (3) the character of the
testamentary act. Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the time of the execution
of his will.
It must be noted that despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares in them and even
their locations. As regards the proper objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. As we have stated earlier, the omission of some
relatives from the will did not affect its formal validity. There being no showing of fraud in
its execution, intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,
[25]
which held thus:
"Between the highest degree of soundness of mind and
memory which unquestionably carries with it full testamentary capacity,
and that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind,
or partial imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded person may
make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to
whom he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or
unimpaired or unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily require that a person
shall actually be insane or of unsound mind."[26]
WHEREFORE, the Petition is DENIED, and the assailed Decision and
Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
A.M. No. 2026-CFI December 19, 1981
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.
Barredo (Chairman), De Castro, Ericta and Escolin JJ., concur.
Concepcion Jr., J., is on leave.
Abad Santos, J., took no part.
[G.R. No. 147145. January 31, 2005]
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-
NOBLE, petitioner, vs. ALIPIO ABAJA and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review[1] assailing the Decision[2] of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of Appeals sustained
the Resolution[3] of the Regional Trial Court of Kabankalan, Negros Occidental, Branch
61 (RTC-Kabankalan), admitting to probate the last will and testament of Alipio Abada
(Abada).
The Antecedent Facts
Abada died sometime in May 1940.[4] His widow Paula Toray (Toray) died sometime
in September 1943. Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja (Alipio) filed with the then Court of First
Instance of Negros Occidental (now RTC-Kabankalan) a petition,[5] docketed as SP No.
070 (313-8668), for the probate of the last will and testament (will) of Abada. Abada
allegedly named as his testamentary heirs his natural children Eulogio Abaja (Eulogio)
and Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong (Caponong) opposed the petition on the ground that Abada left
no will when he died in 1940. Caponong further alleged that the will, if Abada really
executed it, should be disallowed for the following reasons: (1) it was not executed and
attested as required by law; (2) it was not intended as the last will of the testator; and (3)
it was procured by undue and improper pressure and influence on the part of the
beneficiaries. Citing the same grounds invoked by Caponong, the alleged intestate heirs
of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and
Elena Abada (Joel Abada, et al.), and Levi, Leandro, Antonio, Florian, Hernani and
Carmela Tronco (Levi Tronco, et al.), also opposed the petition. The oppositors are the
nephews, nieces and grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition[6] before the RTC-Kabankalan,
docketed as SP No. 071 (312-8669), for the probate of the last will and testament of
Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the petition on the
same grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition[7] before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for the issuance in his name of letters of
administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the
will of Toray. Since the oppositors did not file any motion for reconsideration, the order
allowing the probate of Torays will became final and executory.[8]
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda
Caponong-Noble (Caponong-Noble) Special Administratrix of the estate of Abada and
Toray.[9] Caponong-Noble moved for the dismissal of the petition for probate of the will of
Abada. The RTC-Kabankalan denied the motion in an Order dated 20 August 1991.[10]
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas
discovered that in an Order dated 16 March 1992, former Presiding Judge Edgardo
Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan rendered
a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there is
substantial compliance with the formalities of a Will as the law directs and that the
petitioner through his testimony and the deposition of Felix Gallinero was able to
establish the regularity of the execution of the said Will and further, there being no
evidence of bad faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar[11] is appointed administrator of the estate of
Paula Toray who shall discharge his duties as such after letters of administration shall
have been issued in his favor and after taking his oath and filing a bond in the amount of
Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall
continue discharging her duties as such until further orders from this Court.
SO ORDERED.[12]
The RTC-Kabankalan ruled on the only issue raised by the oppositors in their
motions to dismiss the petition for probate, that is, whether the will of Abada has an
attestation clause as required by law. The RTC-Kabankalan further held that the failure of
the oppositors to raise any other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the
Resolution of the RTC-Kabankalan. The appellate court found that the RTC-Kabankalan
properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada;
2. Whether the will of Abada requires acknowledgment before a notary public;
[13]
3. Whether the will must expressly state that it is written in a language or
dialect known to the testator;
4. Whether the will of Abada has an attestation clause, and if so, whether the
attestation clause complies with the requirements of the applicable laws;
5. Whether Caponong-Noble is precluded from raising the issue of whether
the will of Abada is written in a language known to Abada;
6. Whether evidence aliunde may be resorted to in the probate of the will of
Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to
probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force at that time are the Civil
Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure[14]which governed the execution of wills before the enactment of the New Civil
Code.
The matter in dispute in the present case is the attestation clause in the will of
Abada. Section 618 of the Code of Civil Procedure, as amended by Act No. 2645,
[15]
governs the form of the attestation clause of Abadas will.[16] Section 618 of the Code of
Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as provided in the preceding section,[17] 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 and signed by him, or by the
testators name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other. The 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, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. The attestation shall state
the number of sheets or pages used, upon which the 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.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a will are the
following:
(1) The will must be written in the language or dialect known by the testator;
(2) The will must be signed by the testator, or by the testators name written by
some other person in his presence, and by his express direction;
(3) The will must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other;
(4) The testator or the person requested by him to write his name and the
instrumental witnesses of the will must sign each and every page of the
will on the left margin;
(5) The pages of the will must be numbered correlatively in letters placed on
the upper part of each sheet;
(6) The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and
every page of the will, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the
witnesses witnessed and signed the will and all pages of the will in the
presence of the testator and of each other.
Caponong-Noble asserts that the will of Abada does not indicate that it is written in
a language or dialect known to the testator. Further, she maintains that the will is not
acknowledged before a notary public. She cites in particular Articles 804 and 805 of the
Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or dialect known to
the testator.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. xxx[18]
Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.
[19]
Article 804 of the Old Civil Code is about the rights and obligations of administrators of
the property of an absentee, while Article 806 of the Old Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the
New Civil Code is taken from Section 618 of the Code of Civil Procedure.[20] Article 806 of
the New Civil Code is taken from Article 685 of the Old Civil Code[21] which provides:
Art. 685. The notary and two of the witnesses who authenticate the will must be
acquainted with the testator, or, should they not know him, he shall be identified by two
witnesses who are acquainted with him and are known to the notary and to the attesting
witnesses. The notary and the witnesses shall also endeavor to assure themselves that
the testator has, in their judgment, the legal capacity required to make a will.
Witnesses authenticating a will without the attendance of a notary, in cases falling under
Articles 700 and 701, are also required to know the testator.
However, the Code of Civil Procedure[22] repealed Article 685 of the Old Civil Code.
Under the Code of Civil Procedure, the intervention of a notary is not necessary in the
execution of any will.[23] Therefore, Abadas will does not require acknowledgment before
a notary public.
Caponong-Noble points out that nowhere in the will can one discern that Abada
knew the Spanish language. She alleges that such defect is fatal and must result in the
disallowance of the will. On this issue, the Court of Appeals held that the matter was not
raised in the motion to dismiss, and that it is now too late to raise the issue on appeal.
We agree with Caponong-Noble that the doctrine of estoppel does not apply in probate
proceedings.[24] In addition, the language used in the will is part of the requisites under
Section 618 of the Code of Civil Procedure and the Court deems it proper to pass upon
this issue.
Nevertheless, Caponong-Nobles contention must still fail. There is no statutory
requirement to state in the will itself that the testator knew the language or dialect used in
the will.[25] This is a matter that a party may establish by proof aliunde.[26] Caponong-
Noble further argues that Alipio, in his testimony, has failed, among others, to show that
Abada knew or understood the contents of the will and the Spanish language used in the
will. However, Alipio testified that Abada used to gather Spanish-speaking people in their
place. In these gatherings, Abada and his companions would talk in the Spanish
language.[27] This sufficiently proves that Abada speaks the Spanish language.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has an attestation clause. The attestation
clause of Abadas will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento
en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en
el margen izquierdo de todas y cada una de las hojas del mismo. Y en testimonio de ello,
cada uno de nosotros lo firmamos en presencia de nosotros y del testador al pie de este
documento y en el margen izquierdo de todas y cada una de las dos hojas de que esta
compuesto el mismo, las cuales estan paginadas correlativamente con las letras UNO y
DOS en la parte superior de la carrilla.[28]
Caponong-Noble proceeds to point out several defects in the attestation
clause. Caponong-Noble alleges that the attestation clause fails to state the number of
pages on which the will is written.
The allegation has no merit. The phrase en el margen izquierdo de todas y cada
una de las dos hojas de que esta compuesto el mismo which means in the left margin of
each and every one of the two pages consisting of the same shows that the will consists
of two pages. The pages are numbered correlatively with the letters ONE and TWO as
can be gleaned from the phrase las cuales estan paginadas correlativamente con las
letras UNO y DOS.
Caponong-Noble further alleges that the attestation clause fails to state expressly
that the testator signed the will and its every page in the presence of three witnesses.
She then faults the Court of Appeals for applying to the present case the rule on
substantial compliance found in Article 809 of the New Civil Code.[29]
The first sentence of the attestation clause reads: Suscrito y declarado por el
testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros,
habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de
todas y cada una de las hojas del mismo. The English translation is: Subscribed and
professed by the testator Alipio Abada as his last will and testament in our presence, the
testator having also signed it in our presence on the left margin of each and every one of
the pages of the same. The attestation clause clearly states that Abada signed the will
and its every page in the presence of the witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does not
indicate the number of witnesses. On this point, the Court agrees with the appellate court
in applying the rule on substantial compliance in determining the number of witnesses.
While the attestation clause does not state the number of witnesses, a close inspection
of the will shows that three witnesses signed it.
This Court has applied the rule on substantial compliance even before the effectivity
of the New Civil Code. In Dichoso de Ticson v. De Gorostiza,[30] the Court recognized
that there are two divergent tendencies in the law on wills, one being based on strict
construction and the other on liberal construction. In Dichoso, the Court noted
that Abangan v. Abangan,[31] the basic case on the liberal construction, is cited with
approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,[32] the petitioner, arguing for liberal
construction of applicable laws, enumerated a long line of cases to support her argument
while the respondent, contending that the rule on strict construction should apply, also
cited a long series of cases to support his view. The Court, after examining the cases
invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which
would be applicable to all cases. 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 will, and the instrument appears to
have been executed substantially in accordance with the requirements of the law, the
inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean
towards its admission to probate, although the document may suffer from some
imperfection of language, or other non-essential defect. x x x.
An attestation clause is made for the purpose of preserving, in permanent form, a record
of the facts attending the execution of the will, so that in case of failure of the memory of
the subscribing witnesses, or other casualty, they may still be proved. (Thompson on
Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where its attestation
clause serves the purpose of the law. x x x [33]
We rule to apply the liberal construction in the probate of Abadas will. Abadas will
clearly shows four signatures: that of Abada and of three other persons. It is reasonable
to conclude that there are three witnesses to the will. The question on the number of the
witnesses is answered by an examination of the will itself and without the need for
presentation of evidence aliunde. The Court explained the extent and limits of the rule on
liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the
door to serious consequences. The later decisions do tell us when and where to stop;
they draw the dividing line with precision. They do not allow evidence aliunde to fill a
void in any part of the document or supply missing details that should appear in
the will itself. They only permit a probe into the will, an exploration within its
confines, to ascertain its meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought
to banish any fear of dire results.[34] (Emphasis supplied)
The phrase en presencia de nosotros or in our presence coupled with the signatures
appearing on the will itself and after the attestation clause could only mean that: (1)
Abada subscribed to and professed before the three witnesses that the document was
his last will, and (2) Abada signed the will and the left margin of each page of the will in
the presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not expressly
state the circumstances that the witnesses witnessed and signed the will and all its
pages in the presence of the testator and of each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is desirable. However, it is
not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if
from the language employed it can reasonably be deduced that the attestation clause
fulfills what the law expects of it.[35]
The last part of the attestation clause states en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador. In English, this means in
its witness, every one of us also signed in our presence and of the testator. This clearly
shows that the attesting witnesses witnessed the signing of the will of the testator, and
that each witness signed the will in the presence of one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January
2001 in CA-G.R. CV No. 47644.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna,
JJ., concur.
Matias v. Salud
L-10751, 23 June 1958
FACTS:
The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina
Raquel was suffering from herpes zoster that afflicted the right arm and shoulder of the
testatrix, which made writing difficult and a painful act. Thus, upon the insistence of the
attorney, Gabina attempted to sign, but since it was so painful she just managed to
thumbmarked the foot of the document and the left margin at each page. The parties
opposing the probate of the will contended that the will was void due to the irregularities
in the execution thereof.
One of the points raised by the oppositors was that the finger mark can not be regarded
as the decedents valid signature as it does not show distinct identifying ridgelines. And
since the finger mark was an invalid signature, there must appear in the attestation
clause that another person wrote the testators name at his request.
ISSUE:
W/N the will was valid.
HELD:
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:
We, the undersigned, by these presents to declare that the foregoing testament
of Antero Mercado was signed by himself and also by us below his name and of
this attestation clause and that of the left margin of the three pages thereof.
Page three the continuation of this attestation clause; this will is written in
Ilocano dialect which is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three pages and all them
were signed in the presence of the testator and witnesses, and the witnesses in
the presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
 (Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by "A reugo del testator" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross immediately after his name.
The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all
the left margins of the three pages and at the end of the will by Atty. Florentino Javier at
the express request of the testator in the presence of the testator and each and every
one of the witnesses; (2) to certify that after the signing of the name of the testator by
Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end
thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in
the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner
(who is appealing by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross written by the testator
after his name is a sufficient signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark,
the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales
and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil.,
848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of
Antero Mercado or even one of the ways by which he signed his name. After mature
reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and
the reason is obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital
in the attestation clause as to the signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So
ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
G.R. No. L-6285 February 15, 1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro
Barut and another, No. 6284,1 just decided by this court, wherein there was an
application for the probate of an alleged last will and testament of the same person the
probate of whose will is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate the last will
and testament of Maria Salomon, deceased. It is alleged in the petition of the probate
that Maria Salomon died on the 7th day of November, 1908, in the pueblo of Sinait,
Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan,
Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been
witnesses to the execution thereof. By the terms of said will Pedro Barut received the
larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its
translation into Spanish appears at page 11. After disposing of her property the testatrix
revoked all former wills by her made. She also stated in said will that being unable to
read or write, the same had been read to her by Ciriaco Concepcion and Timotea
Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of the
deceased on various grounds, among them that a later will had been executed by the
deceased. The will referred to as being a later will is the one involved in case No. 6284
already referred to. Proceeding for the probate of this later will were pending at the time.
The evidence of the proponents and of the opponents was taken by the court in both
cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not entitled to
probate upon the sole ground that the handwriting of the person who it is alleged signed
the name of the testatrix to the will for and on her behalf looked more like the handwriting
of one of the other witnesses to the will than that of the person whose handwriting it was
alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by
the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the
will that the signature of the testatrix was written by Severo Agayan at her request and in
her presence and in the presence of all the witnesses to the will. It is immaterial who
writes the name of the testatrix provided it is written at her request and in her presence
and in the presence of all the witnesses to the execution of the will.
The court seems , by inference at least, to have had in mind that under the law relating to
the execution of a will it is necessary that the person who signs the name of the testatrix
must afterwards sign his own name; and that, in view of the fact that, in the case at bar,
the name signed below that of the testatrix as the person who signed her name, being,
from its appearance, not the same handwriting as that constituting the name of the
testatrix, the will is accordingly invalid, such fact indicating that the person who signed
the name of the testatrix failed to sign his own. We do not believe that this contention can
be sustained. Section 618 of the Code of Civil Procedure 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 effect 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 expenses direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of each. . . .
This is the important part of the section under the terms of which the court holds that the
person who signs the name of the testator for him must also sign his own name The
remainder of the section reads:
The attestation shall state the fact that the testator signed the will, or caused it
to be signed by some other person, at his express direction, in the presence of
three witnesses, and that they attested and subscribed it in his presence and in
the presence of each other. But the absence of such form of attestation shall not
render the will invalid if it is proven that the will was in fact signed and attested
as in this section provided.
From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or
not. The important thing is that it clearly appears that the name of the testatrix was
signed at her express direction in the presence of three witnesses and that they attested
and subscribed it in her presence and in the presence of each other. That is all the
statute requires. It may be wise as a practical matter that the one who signs the testator's
name signs also his own; but that it is not essential to the validity of the will. Whether one
parson or another signed the name of the testatrix in this case is absolutely unimportant
so far as the validity of her will is concerned. The plain wording of the statute shows that
the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary
under the law; and the reasons underlying the provisions of the statute relating to the
execution of wills do not in any sense require such a provision. From the standpoint of
language it is an impossibility to draw from the words of the law the inference that the
persons who signs the name of the testator must sign his own name also. The law
requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person who
is unable to write may be signed by another by express direction to any instrument
known to the law. There is no necessity whatever, so far as the validity of the instrument
is concerned, for the person who writes the name of the principal in the document to sign
his own name also. As a matter of policy it may be wise that he do so inasmuch as it
would give such intimation as would enable a person proving the document to
demonstrate more readily the execution by the principal. But as a matter of essential
validity of the document, it is unnecessary. The main thing to be established in the
execution of the will is the signature of the testator. If that signature is proved, whether it
be written by himself or by another at his request, it is none the less valid, and the fact of
such signature can be proved as perfectly and as completely when the person signing for
the principal omits to sign his own name as it can when he actually signs. To hold a will
invalid for the lack of the signature of the person signing the name of the principal is, in
the particular case, a complete abrogation of the law of wills, as it rejects and destroys a
will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine
which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas (4 Phil. Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not
one of these cases is in point. The headnote in the case last above stated gives an
indication of what all of cases are and the question involved in each one of them. It says:
The testatrix was not able to sign it for her. Instead of writing her name he wrote
his own upon the will. Held, That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them was a case in
which the person who signed the will for the testator wrote his own name to the will
instead of writing that of the testator, so that the testator's name nowhere appeared
attached to the will as the one who executed it. The case of Ex parte Arcenas contains
the following paragraph:
Where a testator does not know, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner: "John Doe, by the testator,
Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this
must be written by the witness signing at the request of the testator.
The only question for decision in that case, as we have before stated, was presented by
the fact that the person who was authorized to sign the name of the testator to the will
actually failed to sign such name but instead signed his own thereto. The decision in that
case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this case
have set forth no reason whatever why the will involved in the present litigation should
not be probated. The due and legal execution of the will by the testatrix is clearly
established by the proofs in this case. Upon the facts, therefore, the will must be
probated. As to the defense of a subsequent will, that is resolved in case No. 6284 of
which we have already spoken. We there held that said later will not the will of the
deceased.
The judgment of the probate court must be and is hereby reversed and that court is
directed to enter an order in the usual form probating the will involved in this litigation and
to proceed with such probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.
Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of Civil Procedure does
not expressly require that, when the testator or testatrix is unable or does not know how
to sign, the person who, in the presence and under the express direction of either of
them, writes in the name of the said testator or testatrix must also sign his own name
thereto, it being sufficient for the validity of the will that the said person so requested to
sign the testator or testatrix write the name of either in his own handwriting.
Since this court began to decide cases with regard to the form, conditions and validity of
wills executed in accordance with the provisions of the Code of Civil Procedure, never
has the specific point just above mentioned been brought into question. Now for the first
time is affirmed in the majority opinion, written by the learned and distinguished Hon.
Justice Moreland, that, not being required by the said code, the signature of the name of
the person who, at the request of the testator or testatrix, writes the name of either of the
latter to the will executed, is not necessary.
Various and considerable in number have been the decisions rendered by this court in
which, as will be seen further on, upon applying the said section 618 of Code of Civil
Procedure and requiring its observance in cases where the testator or testatrix is unable
or does not know how to sign his or her name, expressly prescribed the practical method
of complying with the provisions of the law on the subject. Among these decisions
several were written by various justices of this court, some of whom are no longer on this
bench, as they have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the
probate of a will, reads as follows:
Wills, authentication of . Where a will is not signed by a testator but by some
other person in his presence and by his direction, such other person should affix
the name of the testator thereto, and it is not sufficient that he sign his own
name for and instead of the name of the testator.
Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the
probate of a will, states:
1. Wills, requisites of; Civil Code, article repealed. Article 695 of the Civil
Procedure; consequently where a testator is unable to sign his name, the
person signing at his request must write at the bottom of the will the full name of
the testator in the latter's presence, and by his express direction, and then sign
his own name in full.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following
statements appear:
Wills; inability to sign; signature by another. The testatrix was not able to sign
her name to the will, and she requested another person to sign it for her. Held,
That the will was not duly executed. (Following Ex parte Arcenas et al., No.
1708, August 24, 1905; Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex
parte Santiago, No. 2002, August 18, 1905.)
The following syllabus precedes decision No. 3907:4
Execution of wills. Where it appears in a will that the testator has stated that
by reason of his inability to sign his name he requested one of the three
witnesses present to do so, and that as a matter of fact, the said witness wrote
the name and surname of the testator who, stating that the instrument executed
by him contained his last will, put the sign of the cross between his said name
and surname, all of which details are set forth in a note which the witnesses
forthwith subscribed in the presence of the testator and of each other, said will
may be probated.
When the essential requisites of section 618 of the Code of Civil Procedure for
the execution and validity of a will have been complied with, the fact that the
witness who was requested to sign the name of the testator, omitted to state the
words 'by request of .......... the testator,' when writing with his own hand the
name and surname of the said testator, and the fact that said witness
 subscribed his name together with the other witnesses and not below the name
of the testator, does not constitute a defect nor invalidate the said will.
The following statement appears in the syllabus of case No. 4132, in the matter of the
will of Maria Siason:5
The recital of the name of the testator as written below the will at his request
serves as a signature by a third person.
Moreover among the grounds given as a basis for this same decision, the following
appears:
In sustaining this form of signature, this court does not intend to qualify the
decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above
quoted, or in Abaya vs. Zalamero. In the Arcenas case the court pointed out the
correct formula for a signature which ought to be followed, but did not mean to
exclude any other for substantially equivalent.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:
The testatrix was unable to sign her will with her own hand and requested
another person to sign for her in her presence. This the latter did, first writing
the name of the testatrix and signing his own name below: Held, That the
signature of the testatrix so affixed is sufficient and a will thus executed is
admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 51497 sets forth that:
The legality of a will is not affected by the insertion, supposed to have been made
subsequently, of another name before that of the testator when such name may be
treated as nonexistent without affecting its validity.
Among the conclusions contained in this last decision the following is found:
Although the said words "For Simplicia de los Santos" be considered as
inserted subsequently, which we neither affirm nor deny, because a specific
determination either way is unnecessary, in our opinion the signature for the
testatrix placed outside of the body of the will contains the name of the testatrix
as if she signed the will, and also the signature of the witness who, at her
request, wrote the name of the testatrix and signed for her, affirming the truth of
this fact, attested by the other witnesses then present. And this fully complies
with the provisions of section 618 of the Act.
It is true that in none of the decisions above quoted was the rule established that the
person who, at the request of the testator or testatrix, signed the latter's or the former's
name and surname to the will must affix his own signature; but it no less true that, in
prescribing the method in which the provisions of the said section 618 to be complied
with, it was stated that, in order that a will so executed might be admitted to probate, it
was an indispensable requisite that the person requested to sign in place of the testator
or testatrix, should write the latter's or the former's name and surname at the foot of the
will in the presence and under the direction of either, as the case might be, and should
afterwards sign the instrument with his own name and surname.
The statement that the person who writes the name and surname of the testator or
testatrix at the foot of the will should likewise affix his own signature thereto, name and
surname, though it be considered to be neither a rule nor a requisite necessary to follow
for the admission of the will to probate, yet it is unquestionable that, in inserting this last
above-mentioned detail in the aforesaid decisions, it was deemed to be a complement
and integral part of the required conditions for the fulfillment of the provisions of the law.
It is undisputable that the latter does not require the said subscription and signature of
the person requested to affix to the will the name of the testator or testatrix who is not
able to sign; but by stating in the decisions hereinabove quoted that the name and
surname of the said person should be affixed by him, no act prohibited by law was
recommended or suggested, nor may such a detail be understood to be contrary or
opposed to the plain provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even prudent to
require that the person requested to write the name of the testator or testatrix in the will
also sign the instrument with his own name and surname. This statement induces us to
believe that, in behalf of the inhabitants of this country and for sake of an upright
administration of justice, it should be maintained that such a signature must appear in the
will, since no harm could accrue to anyone thereby and, on the contrary, it would serve
as a guarantee of the certainty of the act performed and also might eliminate some
possible cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the complete repeal
of article 695 of the Civil Code and, while he conceded that, in the examination and
qualification of a will for the purpose of its probate, one has but to abide by the provisions
of said section 618 of the Code of Civil Procedure, the sole law applicable in the matter,
yet, perhaps imbued with the strongly impelled by a traditional conception of the laws
which he has known since youth, relative to the form of execution of testaments, he
believed it to be a vary natural and common sense requisite that the signature, with his
own name and surname, of the person requested to write in the will the name and
surname of the testator or testatrix should form a part of the provisions of the
aforementioned section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the
person before referred to a requisite deemed to be convenient and prudent in the
majority opinion formed a part of the provisions of the law, since the latter contains
nothing that prohibits it. The aforementioned different decisions were drawn up in the
form in which they appear, and signed without dissent by all the justices of the court on
various dates. None of them hesitated to sign the decisions, notwithstanding that it was
expressly held therein that the person above mentioned should, besides writing in the will
the name and surname of the testator or testatrix, also sign the said instrument with his
own name and surname.
Without being understood to criticize the provision contained in the said section 618 of
the Code of Civil Procedure it will not be superfluous to mention that the system adopted
in this section is the same as was in vogue under the former laws that governed in these
Islands, with respect to witnesses who were not able or did not know how to sign their
testimony given in criminal or civil cases, in which event any person at all might write the
name and surname of the witness who was unable or did not know how to sign, at the
foot of his deposition, where a cross was then drawn, and, this done, it was considered
that the instrument had been signed by the witness, though it is true that all these
formalities were performed before the judge and the clerk or secretary of the court, which
thereupon certified that such procedure was had in accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure,
the person who writes the name and surname of the testator or testatrix does so by the
order and express direction of the one or of the other, and this fact must be recorded in
the will; but in the matter of the signature of a deposition, the witness, who could not or
did not know how to sign, did not need to designate anyone to write the deponent's name
and surname, and in practice the witness merely made a cross beside his name and
surname, written by whomever it be.
With regard to the execution of wills in accordance with the provisions of previous
statutes, among them those of the Civil Code, the person or witness requested by the
testator or testatrix who was not able or did not know how to sign, authenticated the will
by signing it with his own name and surname, preceded by the words "at the request of
the testator or testatrix." Paragraph 2 of article 695 of the Civil Code contains the
following provisions bearing on the subject:
Should the testator declare that he does not know how, or is not able to sign,
one of the attesting witnesses or another person shall do so for him at his
request, the notary certifying thereto. This shall be done if any one of the
witnesses can not sign.
So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure
prescribed by the old laws with respect to the signing of a will by a testator or testatrix
who did not know how or who could not sign, consisted in that the person appointed and
requested by the testator or testatrix to sign in his or her stead, such fact being recorded
in the will, merely affixed at the bottom of the will and after the words "at the request of
the testator," his own name, surname and paragraph.
It is not at all strange that the attorneys of this country, imbued with and inspired by these
legal provisions, which it may said, are traditional to them in the ideas they have formed
of the existing laws in the matter of procedure in compliance therewith as regards the
execution and signing of a will, should have believed that, after the name and surname of
the testator or testatrix had been written at the foot of the will, the person who signed the
instrument in the manner mentioned should likewise sign the same with his own name
and surname.
If in various decisions it has been indicated that the person who, under the express
direction of the testator or testatrix, wrote the latter's or the former's name and surname,
should also sign the will with his own name and surname, and since this suggestion is
not opposed or contrary to the law, the undersigned is of opinion that it ought not to be
modified or amended, but that, on the contrary, it should be maintained as a requisite
established by the jurisprudence of this court, inasmuch as such a requisite is not
contrary to law, to public order, or to good custom, is in consonance with a tradition of
this country, does not prejudice the testator nor those interested in an inheritance, and,
on the contrary, constitutes another guarantee of the truth and authenticity of the letters
with which the name and surname of the testator of testatrix are written, in accordance
with his or her desire as expressed in the will.
Even though the requisites referred to were not recognized in jurisprudence and were
unsupported by any legal doctrine whatever, yet, since it is in harmony with the juridical
usages and customs observed in this country, it ought, in the humble opinion of the
writer, to be maintained for the benefit of the inhabitants of the Islands and for the sake of
a good administration of justice, because it is not a question of a dangerous innovation or
of one prejudicial to the public good, but a matter of the observance of a convenient, if
not a necessary detail, introduced by the jurisprudence of the courts and which in the
present case has filed a vacancy left by the positive written law.
The foregoing considerations, which perhaps have not the support of better premises,
but in the opinion of the undersigned, are conducive to the realization of the purposes of
justice, have impelled him to believe that the proposition should be enforced that the
witness requested or invited by the testator or testatrix to write his or her name to the will,
should also subscribed the instrument by signing thereto his own name and surname;
and therefore, with the proper finding in this sense, and reversal of the judgment
appealed from, that the court below should be ordered to proceed with the probate of the
will of the decedent, Maria Salomon, in accordance with the law.
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing
witnesses was present in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their signatures; or whether at that
time he was outside, some eight or ten feet away, in a large room connecting with the
smaller room by a doorway, across which was hung a curtain which made it impossible
for one in the outside room to see the testator and the other subscribing witnesses in the
act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in
the small room with the testator and the other subscribing witnesses at the time when
they attached their signatures to the instrument, and this finding, of course, disposes of
the appeal and necessitates the affirmance of the decree admitting the document to
probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of
fact of vital importance in the determination of this case, as he was of opinion that under
the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged
fact that one of the subscribing witnesses was in the outer room when the testator and
the other describing witnesses signed the instrument in the inner room, had it been
proven, would not be sufficient in itself to invalidate the execution of the will. But we are
unanimously of opinion that had this subscribing witness been proven to have been in
the outer room at the time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room, it would have been invalid
as a will, the attaching of those signatures under circumstances not being done "in the
presence" of the witness in the outer room. This because the line of vision from this
witness to the testator and the other subscribing witnesses would necessarily have been
impeded by the curtain separating the inner from the outer one "at the moment of
inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a
will is not whether they actually saw each other sign, but whether they might
have been seen each other sign, had they chosen to do so, considering their
mental and physical condition and position with relation to each other at the
moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each
other at the moment of the subscription of each signature, must be such that they may
see each other sign if they choose to do so. This, of course, does not mean that the
testator and the subscribing witnesses may be held to have executed the instrument in
the presence of each other if it appears that they would not have been able to see each
other sign at that moment, without changing their relative positions or existing conditions.
The evidence in the case relied upon by the trial judge discloses that "at the moment
when the witness Javellana signed the document he was actually and physically present
and in such position with relation to Jaboneta that he could see everything that took
place by merely casting his eyes in the proper direction and without any physical
obstruction to prevent his doing so." And the decision merely laid down the doctrine that
the question whether the testator and the subscribing witnesses to an alleged will sign
the instrument in the presence of each other does not depend upon proof of the fact that
their eyes were actually cast upon the paper at the moment of its subscription by each of
them, but that at that moment existing conditions and their position with relation to each
other were such that by merely casting the eyes in the proper direction they could have
seen each other sign. To extend the doctrine further would open the door to the
possibility of all manner of fraud, substitution, and the like, and would defeat the purpose
for which this particular condition is prescribed in the code as one of the requisites in the
execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with
costs of this instance against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the
person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance
and admission to probate of the original, Exhibit "A" as the alleged will of Josefa
Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor
thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice
thereof to be published for three (3) successive weeks, previous to the time appointed, in
the newspaper "Manila chronicle", and also caused personal service of copies thereof
upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to have herself appointed as a special
administrator, to which proponent objected. Hence, on November 18, 1958, the court
issued an order appointing the Philippine Trust Company as special
administrator. 1wph1.t Witness Natividad who testified on his failure to sign page three (3) of the original, admits
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his
evidence; but on June 1, 1959, he filed a motion for the admission of an amended and
supplemental petition, alleging that the decedent left a will executed in duplicate with all
the legal requirements, and that he was, on that date, submitting the signed duplicate
(Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17,
1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad
Icasiano filed her amended opposition. Thereafter, the parties presented their respective
evidence, and after several hearings the court issued the order admitting the will and its
duplicate to probate. From this order, the oppositors appealed directly to this Court, the
amount involved being over P200,000.00, on the ground that the same is contrary to law
and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the
City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte
executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and
Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary
Public in and for the City of Manila; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution and signing of the
decedent's last will and testament, together with former Governor Emilio Rustia of
Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses
to the execution of the decedent's last will and testament, attorneys Torres and Natividad
were in the Philippines at the time of the hearing, and both testified as to the due
execution and authenticity of the said will. So did the Notary Public before whom the will
was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte last will
and testament at his house in Baliuag, Bulacan, but he brought only one original and one
signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with
the filing of the petition and marked as Exhibit "A" consists of five pages, and while
signed at the end and in every page, it does not contain the signature of one of the
attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate
copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of
the will and its duplicate were subscribed at the end and on the left margin of each and
every page thereof by the testatrix herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in that of one another as witnesses
(except for the missing signature of attorney Natividad on page three (3) of the original);
that pages of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to be recited therein and
is signed by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a language also
known to and spoken by the witnesses; that the will was executed on one single
occasion in duplicate copies; and that both the original and the duplicate copies were
duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June
2, 1956.
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.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and
Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF
DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte,
(Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of First Instance of Southern
Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the
Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada,
Petitioner", which denied the probate of the will, the motion for reconsideration and the
motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page by the testatrix alone and at
the left hand margin by the three (3) instrumental witnesses. The second page which
contains the attestation clause and the acknowledgment is signed at the end of the
attestation clause by the three (3) attesting witnesses and at the left hand margin by the
testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so that they could be properly notified
and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation
and/or motion, ex partepraying for a thirty-day period within which to deliberate on any
step to be taken as a result of the disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of intestate heirs with their addresses
be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the
will. However, the motion together with the previous manifestation and/or motion could
not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding judge of the
respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In the same order of denial, the motion for the
appointment of special administrator was likewise denied because of the petitioner's
failure to comply with the order requiring him to submit the names of' the intestate heirs
and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the
testatrix and all the three instrumental and attesting witnesses sign at the end of the will
and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
and that the lacier witnesses and signed the will and the pages thereof
in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the
three subscribing witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another because the attesting witnesses to a will
attest not merely the will itself but also the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is found, at the left hand margin of
that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic validity of
the wig that the signatures of the subscribing witnesses should be specifically located at
the end of the wig after the signature of the testatrix. He contends that it would be absurd
that the legislature intended to place so heavy an import on the space or particular
location where the signatures are to be found as long as this space or particular location
wherein the signatures are found is consistent with good faith and the honest frailties of
human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at
its end by the testator himself or by the testator's name written by another person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists
in witnessing the testator's execution of the will in order to see and take note mentally
that those things are, done which the statute requires for the execution of a will and that
the signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of Identification of
such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d
911).
Insofar as the requirement of subscription is concerned, it is our considered view that the
will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from
the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective
permeating the provisions on the law on wills in this project consists in the liberalization
of the manner of their execution with the end in view of giving the testator more freedom
in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence
upon the testator. This objective is in accord with the modern tendency in respect to the
formalities in the execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not
for the defect in the place of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present
case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire wig that it is really
and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages
including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation clause
must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the win is
written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of the heirs to whom
the property is intended to be bequeathed (In re will of Andrada, 42
Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to
be that the attestation clause must contain a statement of the number
of sheets or pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets or pages
upon which the will is written, however, the last part of the body of the
will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a
broad and more liberal view has been adopted to prevent the will of the
testator from being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar
liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the
fact that the testatrix and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint of the seal of the
notary public before whom the testament was ratified by testatrix and
all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence
of a single witness over whose conduct she had no control where the
purpose of the law to guarantee the Identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the fun
observance of the statutory requisites. Otherwise, as stated in Vda. de
Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will by muddling or
bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent
court which denied the probate of tile will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special administrator are set aside. The
respondent court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.
Teehankee, J, is on leave.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-
appellee,
vs.
DOA 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 the voluntariness of their actions in
executing the testamentary disposition. This was done in the case before us. The
subsequent signing and sealing by the notary of his certification that the testament was
duly acknowledged by the participants therein is no part of the acknowledgment itself nor
of the testamentary act. Hence their separate execution out of the presence of the
testatrix and her witnesses can not be said to violate the rule that testaments should be
completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman
maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was
committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil
Code does not contain words requiring that the testator and the witnesses should
acknowledge the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador,
and Concepcion, JJ.,concur.
LETICIA VALMONTE ORTEGA, G.R. No. 157451
Petitioner,
Present:
Panganiban, J.,
Chairman,
- versus - Sandoval-Gutierrez,
Corona,
Carpio Morales, and Garcia, JJ
JOSEFINA C. VALMONTE, Promulgated:
Respondent.
December 16, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
DECISION
PANGANIBAN, J.:
T he law favors the probate of a will. Upon those who oppose it rests the burden of
showing why it should not be allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court,
seeking to reverse and set aside the December 12, 2002 Decision[2] and the March 7,
2003 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed
Decision disposed as follows:
WHEREFORE, the appeal is GRANTED, and the Decision
appealed from is REVERSED and SET ASIDE. In its place judgment is
rendered approving and allowing probate to the said last will and
testament of Placido Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let this case be
remanded to the court a quo for further and concomitant proceedings.[4]
The assailed Resolution denied petitioners Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
x x x: Like so many others before him, Placido toiled and lived
for a long time in the United States until he finally reached retirement.
In 1980, Placido finally came home to stay in the Philippines, and he
lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca
Valmonte and titled in their names in TCT 123468. Two years after his
arrival from the United States and at the age of 80 he wed Josefina
who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two
years of wedded bliss, Placido died on October 8, 1984 of a cause
written down as COR PULMONALE.
 deceased sister, Ciriaca Valmonte and
Placido executed a notarial last will and testament written in myself as co-owners, share and share
English and consisting of two (2) pages, and dated June 15, 1983 but alike or equal co-owners thereof;
acknowledged only on August 9, 1983. The first page contains the
entire testamentary dispositions and a part of the attestation clause, 3. All the rest, residue and remainder of
and was signed at the end or bottom of that page by the testator and my real and personal properties, including my
on the left hand margin by the three instrumental witnesses. The savings account bank book in USA which is in the
second page contains the continuation of the attestation clause and possession of my nephew, and all others whatsoever
the acknowledgment, and was signed by the witnesses at the end of and wherever found, I give, devise and bequeath to
the attestation clause and again on the left hand margin. It provides in my said wife, Josefina C. Valmonte;
the body that:
4. I hereby appoint my wife, Josefina C.
LAST WILL AND TESTAMENT OF Valmonte as sole executrix of my last will and
PLACIDO VALMONTE IN THE NAME OF THE testament, and it is my will that said executrix be
LORD AMEN: exempt from filing a bond;

I, PLACIDO VALMONTE, of legal age, IN WITNESS WHEREOF, I have hereunto

married to Josefina Cabansag Valmonte, and a set my hand this 15th day of June 1983 in Quezon
resident of 9200 Catmon Street, Makati, Metro City, Philippines.
Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this
to be my last will and testament: The allowance to probate of this will was opposed by Leticia
on the grounds that:
1. It is my will that I be buried in the
Catholic Cemetery, under the auspices of the 1. Petitioner failed to allege all
Catholic Church in accordance with the rites and assets of the testator, especially those found in
said Church and that a suitable monument to be the USA;
erected and provided my by executrix (wife) to
perpetuate my memory in the minds of my family 2. Petitioner failed to state the
and friends; names, ages, and residences of the heirs of the
testator; or to give them proper notice pursuant
2. I give, devise and bequeath unto my to law;
loving wife, JOSEFINA C. VALMONTE, one half
(1/2) portion of the follow-described properties, 3. Will was not executed and attested as required
which belongs to me as [co-owner]: by law and legal solemnities and formalities
were not complied with;
a. Lot 4-A, Block 13 described on plan
Psd-28575, LRC, (GLRO), situated in 4. Testator was mentally incapable to make a will
Makati, Metro Manila, described and at the time of the alleged execution he being in
covered by TCT No. 123468 of the an advance sate of senility;
Register of Deeds of Pasig, Metro-
Manila registered jointly as co-owners 5. Will was executed under duress, or the
with my deceased sister (Ciriaca influence of fear or threats;
Valmonte), having share and share
alike; 6. Will was procured by undue and improper
influence and pressure on the part of the
b. 2-storey building standing on the petitioner and/or her agents and/or assistants;
above-described property, made of and/or
strong and mixed materials used as my
residence and my wife and located at 7. Signature of testator was procured by fraud, or
No. 9200 Catmon Street, Makati, Metro trick, and he did not intend that the instrument
Manila also covered by Tax Declaration should be his will at the time of affixing his
No. A-025-00482, Makati, Metro- signature thereto;
Manila, jointly in the name of my

and she also opposed the appointment as Executrix of Josefina
alleging her want of understanding and integrity.
At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who prepared and
notarized the will, and the instrumental witnesses spouses Eugenio
Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition,
the oppositor Leticia and her daughter Mary Jane Ortega testified.
According to Josefina after her marriage with the testator they
lived in her parents house at Salingcob, Bacnotan, La Union but they
came to Manila every month to get his $366.00 monthly pension and
stayed at the said Makati residence. There were times though when to
shave off on expenses, the testator would travel alone. And it was in
one of his travels by his lonesome self when the notarial will was
made. The will was witnessed by the spouses Eugenio and Feliza
Gomez, who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the last will
and testament of her husband, but just serendipitously found it in his
attache case after his death. It was only then that she learned that the
testator bequeathed to her his properties and she was named the
executrix in the said will. To her estimate, the value of property both
real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered
mental infirmity because despite his old age he went alone to the
market which is two to three kilometers from their home cooked and
cleaned the kitchen and sometimes if she could not accompany him,
even traveled to Manila alone to claim his monthly pension. Josefina
also asserts that her husband was in good health and that he was
hospitalized only because of a cold but which eventually resulted in his
death.
Notary Public Floro Sarmiento, the notary public who
notarized the testators will, testified that it was in the first week of June
1983 when the testator together with the three witnesses of the will
went to his house cum law office and requested him to prepare his last
will and testament. After the testator instructed him on the terms and
dispositions he wanted on the will, the notary public told them to come
back on June 15, 1983 to give him time to prepare it. After he had
prepared the will the notary public kept it safely hidden and locked in
his drawer. The testator and his witnesses returned on the appointed
date but the notary public was out of town so they were instructed by
his wife to come back on August 9, 1983, and which they did. Before
the testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano, a
dialect which the testator spoke and understood. He likewise explained
that though it appears that the will was signed by the testator and his
witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was
actually on August 9, 1983. He reasoned that he no longer changed
the typewritten date of June 15, 1983 because he did not like the
document to appear dirty. The notary public also testified that to his
observation the testator was physically and mentally capable at the
time he affixed his signature on the will.
The attesting witnesses to the will corroborated the testimony
of the notary public, and testified that the testator went alone to the
house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon
City and requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his
instructions to Atty. Floro Sarmiento, they were told to return on June
15, 1983; that they returned on June 15, 1983 for the execution of the
will but were asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator executed the will
in question in their presence while he was of sound and disposing
mind and that he was strong and in good health; that the contents of
the will was explained by the notary public in the Ilocano and Tagalog
dialect and that all of them as witnesses attested and signed the will in
the presence of the testator and of each other. And that during the
execution, the testators wife, Josefina was not with them.
The oppositor Leticia declared that Josefina should not inherit
alone because aside from her there are other children from the siblings
of Placido who are just as entitled to inherit from him. She attacked the
mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and
was no longer of sound mind. She knew whereof she spoke because
in 1983 Placido lived in the Makati residence and asked Leticias family
to live with him and they took care of him. During that time, the
testators physical and mental condition showed deterioration,
aberrations and senility. This was corroborated by her daughter Mary
Jane Ortega for whom Placido took a fancy and wanted to marry.
Sifting through the evidence, the court a quo held that [t]he
evidence adduced, reduces the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and
formalities in the execution and attestation of the will; and
2. Mental incapacity of the testator at the time of the
execution of the will as he was then in an advanced state
of senility
It then found these grounds extant and proven, and accordingly
disallowed probate.[5]
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of Placido Valmonte to
probate. The CA upheld the credibility of the notary public and the subscribing witnesses
who had acknowledged the due execution of the will. Moreover, it held that the testator
had testamentary capacity at the time of the execution of the will. It added that his sexual
exhibitionism and unhygienic, crude and impolite ways[6] did not make him a person of
unsound mind.
Hence, this Petition.[7]
Issues
Petitioner raises the following issues for our consideration:
I.
Whether or not the findings of the probate court are entitled to great
respect.
II.
Whether or not the signature of Placido Valmonte in the subject will
was procured by fraud or trickery, and that Placido Valmonte never
intended that the instrument should be his last will and testament.
III.
Whether or not Placido Valmonte has testamentary capacity at the time
he allegedly executed the subject will.[8]
In short, petitioner assails the CAs allowance of the probate of the will of Placido
Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for
Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the
evidence presented during the trial may be examined and the factual matters resolved by
this Court when, as in the instant case, the findings of fact of the appellate court differ
from those of the trial court.[9]
The fact that public policy favors the probate of a will does not necessarily mean
that every will presented for probate should be allowed. The law lays down the
procedures and requisites that must be satisfied for the probate of a will.[10] Verily, Article
839 of the Civil Code states the instances when a will may be disallowed, as follows:
Article 839. The will shall be disallowed in any of the following
cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or
the influence of fear, or threats;
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of affixing his
signature thereto.
In the present case, petitioner assails the validity of Placido Valmontes will by imputing
fraud in its execution and challenging the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of the
will, but maintains that the circumstances surrounding it are indicative of the existence of
fraud. Particularly, she alleges that respondent, who is the testators wife and sole
beneficiary, conspired with the notary public and the three attesting witnesses
in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the
execution and the attestation of the will.
Petitioner contends that it was highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was] thrice her
age x x x and who happened to be [a] Fil-American pensionado,[11] thus casting doubt on
the intention of respondent in seeking the probate of the will. Moreover, it supposedly
defies human reason, logic and common experience[12] for an old man with a severe
psychological condition to have willingly signed a last will and testament.
We are not convinced. Fraud is a trick, secret device, false statement, or pretense, by
which the subject of it is cheated. It may be of such character that the testator is misled
or deceived as to the nature or contents of the document which he executes, or it may
relate to some extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for the fraud, he would not have made.[13]
We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution.[14] The burden to show otherwise shifts to
the proponent of the will only upon a showing of credible evidence of fraud.
[15]
Unfortunately in this case, other than the self-serving allegations of petitioner, no
evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will.[16] That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty years his
junior, as the sole beneficiary; and disregarded petitioner and her family, who were the
ones who had taken the cudgels of taking care of [the testator] in his twilight years.[17]
Moreover, as correctly ruled by the appellate court, the conflict between the
dates appearing on the will does not invalidate the document, because the law does not
even require that a [notarial] will x x x be executed and acknowledged on the same
occasion.[18] More important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the presence of the testator
and of one another.[19] Furthermore, the testator and the witnesses must acknowledge the
will before a notary public.[20] In any event, we agree with the CA that the variance in the
dates of the will as to its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental witnesses.[21]
The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA --
are reproduced respectively as follows:
Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15
when the testator and his witnesses were supposed to be in
your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your
house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date
when the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses
affixed their respective signature on the first and second
pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the
attestation clause?
A Because I do not like anymore to make some alterations so I put it in
my own handwriting August 9, 1983 on the acknowledgement.
(tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15,
1983, whereas in the acknowledgement it is dated August 9,
1983, will you look at this document and tell us this
discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the
two witnesses; that was first week of June and Atty.
Sarmiento told us to return on the 15th of June but when we
returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you
again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed,
who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25,
1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three
times?
xxxxxxxxx
A The reason why we went there three times is that, the first week of
June was out first time. We went there to talk to Atty.
Sarmiento and Placido Valmonte about the last will and
testament. After that what they have talked what will be
placed in the testament, what Atty. Sarmiento said was that
he will go back on the 15th of June. When we returned on
June 15, Atty. Sarmiento was not there so we were not able to
sign it, the will. That is why, for the third time we went there on
August 9 and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15,
1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9,
1983.
Q And on August 9, 1983 did you go back to the house of Atty.
Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)[22]
Notably, petitioner failed to substantiate her claim of a grand conspiracy in the
commission of a fraud. There was no showing that the witnesses of the proponent stood
to receive any benefit from the allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence of its due execution.[23] Their
testimony favoring it and the finding that it was executed in accordance with the
formalities required by law should be affirmed, absent any showing of ill motives.[24]

Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives the
following guidelines:
Article 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution.
Article 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or that his
mind be wholly unbroken, unimpaired, or shattered by disease, injury
or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary act.
Article 800. The law presumes that every person is of sound
mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before making
his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid
interval.
According to Article 799, the three things that the testator must have the ability
to know to be considered of sound mind are as follows: (1) the nature of the estate to be
disposed of, (2) the proper objects of the testators bounty, and (3) the character of the
testamentary act. Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the time of the execution
of his will.
It must be noted that despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares in them and even
their locations. As regards the proper objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. As we have stated earlier, the omission of some
relatives from the will did not affect its formal validity. There being no showing of fraud in
its execution, intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,
[25]
which held thus:
"Between the highest degree of soundness of mind and
memory which unquestionably carries with it full testamentary capacity,
and that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind,
or partial imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded person may
make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to
whom he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or
unimpaired or unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily require that a person
shall actually be insane or of unsound mind."[26]
WHEREFORE, the Petition is DENIED, and the assailed Decision and
Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
MANUEL L. LEE, A.C. No. 5281
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
ATTY. REGINO B. TAMBAGO,
Respondent. Promulgated:
February 12, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of
the legal profession for notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee,
Sr., never executed the contested will. Furthermore, the spurious will contained the
forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its
execution.
In the said will, the decedent supposedly bequeathed his entire estate to his
wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and
Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before respondent on
June 30, 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 the testator was not the same as his signature as donor
in a deed of donation[4] (containing his purported genuine signature). Complainant
averred that the signatures of his deceased father in the will and in the deed of donation
were in any way (sic) entirely and diametrically opposed from (sic) one another in all
angle[s].[5]
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 complainants 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
1.01[12] 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 Respondents failure to
comply with the laws in the discharge of his function as a notary public,
Atty. Regino B. Tambago is hereby suspended from the practice of law
for one year and Respondents notarial commission is Revoked and
Disqualified from reappointment as Notary Public for two (2) years.[14]
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 testators 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 testators 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 Act[26] which stated:
When a person liable to the taxes prescribed in this Act acknowledges
any document before a notary public xxx it shall be the duty of such
person xxx with whom such transaction is had or business done, to
require the exhibition of the residence certificate showing payment of
the residence taxes by such person xxx.
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)
Respondents 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 respondents notarial register was not admissible as
evidence of the entry of the execution of the will because it failed to comply with the
requirements for the admissibility of secondary evidence.
In the same vein, respondents attempt to controvert the certification dated
September 21, 1999[30] 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 1[38] and Rule 1.01[39] 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 commission[50] 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 Lawyers Oath; (2) Rule 138 of the Rules of
Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806
of the Civil Code and (5) the provisions of the old Notarial Law.
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-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.
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.
Wherefore, the appealed decision is reversed and the probate of the will in question
denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the formalities
of the law and, therefore, should be admitted to probate . It appears that the will was
signed by the testator and was attested by three instrumental witnesses, not only at the
bottom, but also on the left-hand margin. The witnesses testified not only that the will was
signed by the testator in their presence and in the presence of each other but also that
when they did so, the attestation clause was already written thereon. Their testimony has
not been contradicted. The only objection set up by the oppositors to the validity of the
will is the fact that the signatures of the instrumental witnesses do not appear
immediately after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan,
(40 Phil., 476), this court said that when the testamentary dispositions "are wholly written
on only one sheet signed at the bottom by the testator and three witnesses (as the
instant case),their signatures on the left margin of said sheet would be completely
purposeless." In such a case, the court said, the requirement of the signatures on the left
hand margin was not necessary because the purpose of the law which is to avoid the
substitution of any of the sheets of the will, thereby changing the testator's dispositions
has already been accomplished. We may say the same thing in connection with the
will under consideration because while the three instrumental witnesses did not sign
immediately by the majority that it may have been only added on a subsequent occasion
and not at the uncontradicted testimony of said witnesses to the effect that such
attestation clause was already written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud to avoid 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 i 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
already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary useless and
frustrative of the testator's last will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of
interpretation of wills, the purpose of which, in case of doubt, is to give such
interpretation that would have the effect of preventing intestacy (article 788 and 791, New
Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority
decision erroneously sets down as a fact that the attestation clause was no signed when
the witnesses signatures appear on the left margin and the real and only question is
whether such signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not provide that
the attesting witness should sign the clause at the bottom. In the absence of such
provision, there is no reason why signatures on the margin are not good. A letter is not
any the less the writter's simply because it was signed, not at the conventional place but
on the side or on top.
Feria, J., concurs.
G.R. No. L-3362 March 1, 1951
TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE
GIL, administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate the alleged will and testament
of the deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this
Court, raising only question of law. Her counsel assigns the two following alleged errors:
Primer Error. El Juzgado inferior erro al dejar de declarar que el alegado
testamento de Carlos Gil no ha sido otogar de acuerdo con la ley.
Segundo Error. Erro finalmente a legalizar el referido testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 aos de edad, residente de Porac, Pampanga, I. F.,
hallandome sano y en pleno goce de mis facultades intelectuales, libre y
expontaneamente, sin violencia, coaccion, dolo o influencia ilegal de persona
extraa, otorgo y ordeno este mi testamento y ultima voluntad en castellano,
idioma que poseo y entiendo, de la manera siguiente:
1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no
tuvimos hijos;
2. Declaro que tengo propiedades situadas en Manila y en la Provincia de
Pampanga;
3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que
muebles e inmuebles situados en Manila y en Pampanga, bajo la condicion de
que cuando esta muera y si hayan bienes remanentes heredadas por ella de
mi, que dichos bienes remanentes se adjudicaran a Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr.
Galicano Coronel a quien tengo absoluta confianza, con relevacion de fianza;
En testimonio de todo lo cual, firmo este mi testamento y en el margen
izquierdo de cada una de sus dos paginas, utiles con la clausula de
atestiguamiento en presencia de los testigos, quienes a su vez firmaron cada
una de dichas paginas y la clausula de atestiguamiento en mi presencia cada
uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia 27 de
Mayo de mil novecientos treinta y nueve.
CARLOS GIL
Testificacion:
Segunda Pagina (2)
Nosotros los que suscribimos, todos mayores de edad, certificamos: que el
testamento que precede este escrito en la lengua castellana que conoce la
testadora, compuesto de dos paginas utiles con la clausula de atestiguamiento
paginadas correlativamente en letras y numeros en la parte superior de la
casilla, asi como todas las hojas del mismo, en nuestra presencia y que cada
uno de nosotros hemos atestiguado y firmado dicho documento y todas las
hojas del mismo en presencia del testador y en la de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA
(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAA
Regarding the correctness and accuracy of the above-copied alleged will, the court
below said:
. . . The only copy available is a printed form contained in the record appeal in
case G.R. No. L-254, entitled "Testate Estate of Carlos Gil; Isabel Herreros Vda.
de Gil, petitioner and appellant vs. Roberto Toledo y Gil, oppositor and
appellee." Both parties are agreed that this is a true and correct copy of the will.
(P. 10, Record on Appeal).
The appeal being only on questions of law the above finding of the court below cannot be
disputed. The conclusions of law reached by said court are based on it. Moreover, the
finding is correctly based on the evidence of record. The parties agreed that said copy is
true and correct. If it were otherwise, they would not have so agreed, considering that the
defect is of an essential character and is fatal to the validity of the attestation clause.
It will be noted that the attestation clause above quoted does not state that the alleged
testor signed the will. It declares only that it was signed by the witnesses. This is a fatal
defect, for the precise purpose of the attestation clause is to certify that the testator
signed the will, this being the most essential element of the clause. Without it there is no
attestation at all. It is said that the court may correct a mere clerical error. This is too
much of a clerical error for it effects the very essence of the clause. Alleged errors may
be overlooked or correct only in matters of form which do not affect the substance of the
statement.
It is claimed that the correction may be made by inference. If we cure a deficiency by
means of inferences, when are we going to stop making inferences to supply fatal
deficiencies in wills? Where are we to draw the line? Following that procedure we would
be making interpolations by inferences, implication, and even by internal circumtantial
evidence. This would be done in the face of the clear, uniquivocal, language of the
statute as to how the attestation clause should be made. It is to be supposed that the
drafter of the alleged will read the clear words of the statute when he prepared it. For the
court to supply alleged deficiencies would be against the evident policy of the law.
Section 618 of Act No. 190, before it was amended, contained the following provision:
. . . But the absence of such form of attestation shall not render the will invalid if
it proven that the will was in fact signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides
increasing the contents of the attestation clause, entirely suppressed the above-quoted
provision. This would show that the purpose of the amending act was to surround the
execution of a will with greater guarantees and solemnities. Could we, in view of this,
hold that the court can cure alleged deficiencies by inferences, implications,
and internal circumstantial evidence? Even in ordinary cases the law requires certain
requisities for the conclusiveness of circumstantial evidence.
It is contended that the deficiency in the attestation clause is cured by the last paragraph
of the body of the alleged will, which we have quoted above. At first glance, it is queer
that the alleged testator should have made an attestation clause, which is the function of
the witness. But the important point is that he attests or certifies his own signature, or, to
be accurate, his signature certifies itself. It is evident that one cannot certify his own
signature, for it does not increase the evidence of its authenticity. It would be like lifting
one's self by his own bootstraps. Consequently, the last paragraph of the will cannot cure
in any way the fatal defect of the attestation clause of the witnesses. Adding zero to an
insufficient amount does not make it sufficient.
It is said that the rules of statutory construction are applicable to documents and wills.
This is true, but said rules apply to the body of the will, containing the testamentary
provisions, but not to the attestation clause, which must be so clear that it should not
require any construction.
The parties have cited pro and con several decisions of the Supreme Court, some of
which are said to be rather strict and others liberal, in the interpretation of section 618 of
Act No. 190, as amended by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF
THE CODE OF CIVIL PROCEDURE CONSTRUED. The right to dispose of
the property by will is governed entirely by statute. The law is here found in
section 618 of the Code of Civil Procedure, as amended. The law not alone
carefully makes use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. The Philippine authorities relating to the
attestation clause to wills reviewed. The cases of Sao vs. Quintana ([1925], 48
Phil., 506), and Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152), particularly
compared. The decision in In re Will of Quintana, supra, adopted and
reaffirmed. The decision in Nayve vs. Mojal and Aguilar, supra, modified.
3. ID.; ID.; ID.; ID. The portion of section 618 of the Code of Civil Procedure,
as amended, which provides that "The attestation clause 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" applied and enforced.
4. ID.; ID.; ID.; ID. 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.
(Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V.
Moran, now Chief Justice of the Supreme Court, in his decision made the following
pronouncement:
. . . En la clausula de atestiguamiento del testamento en cuestion, se hace
constar que los testadores firmaron el testamento en presencia de los tres
testigos instrumentales y que estos firmaron el testamento los unos en
presencia de los otros, pero no se hace constar que dichos testigos firmaron el
testamento enpresencia de los testadores, ni que estos y aquellos firmaron
todas y cada una de las paginas del testamento los primeros en presencia de
los segundos y vice-versa.
En su virtud, se deniega la solicitud en la que se pide la legalizacion del
alegado testamento Exhibit A de Gregorio Pueblo y Carmen Quinto, y se
declara que Gregorio Pueblo murio intestado.
The Supreme Court fully affirmed the decision, laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF.
The attestation clause must be made in strict conformity with the requirements
of section 618 of Act No. 190, as amended. Where said clause fails to show on
its face a full compliance with those requirements, the defect constitutes
sufficient ground for the disallowance of the will. (Sano vs. Quintana, 48 Phil.,
506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde should not be
admitted to establish facts not appearing on the attestation clause, and where
said evidence has been admitted it should not be given the effect intended. (Uy
Coque vs. Navas L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS
AMENDED. Section 618 of Act No. 190, as amended, should be given a
strict interpretation in order to give effect to the intention of the Legislature.
Statutes prescribing formalities to be observed in the execution of wills are very
strictly construed. Courts cannot supply the defensive execution of will. (40
Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of
the Gumban vs. Gorcho case, supra, but not to the extent of validating an attestation
clause similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause
which was complete, and it was also signed by the two attesting witnesses. For this
reason, the court said:
In reality, it appears that it is the testatrix who makes the declaration about the
points contained in the above described paragraph; 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 section 1 of Act No. 2645 which
provides that: . . . (p. 381, supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:
An attestation clause to a will, copied from a form book and reading: "We, the
undersigned attesting witnesses, whose residences are stated opposite our
respective names, do hereby certify that the testatrix, whose name is signed
hereinabove, has publish unto us the foregoing will consisting of two pages as
her Last Will and Testament, and has signed the same in our presence, and in
witness whereof we have each signed the same and each page thereof in the
presence of said testatrix and in the presence of each other," held not to be
fatally defective and to conform to the law.
This very different from the attestation clause in the case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939),
the will was objected to on the ground that, although the attestation clause stated that
"each of the pages of which the said will is composed" was signed by the testatrix at the
left margin and at the foot of the fifth page, it did not state that the signature was made in
the presence of the witnesses. It was held, however, that said deficiency was cured by
the phrase "as well as by each of us in the presence of the testatrix." The words "as well
as" indicate that the testatrix signed also in the presence of the witnesses, for the phrase
"as well as" in this case is equivalent to "also." The language is clear and, unlike the
attestation clause in the present case, does not necessitate any correction. In the body of
the will the testatrix stated that she signed in the presence of each and all of the three
witnesses. This was considered as a corroboration, but it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October
18, 1939; 68 Phil., 745), the attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y
testamento en presencia de todos y cada uno de nosotros, y a ruego de dicho
testador, firmamos el presente cada uno en presencia de los otros, o de los
demas y de la del mismo testsador, Valerio Leynez. El testamento consta de
dos (2) paginas solamente.
The objection was that the attestation clause did not state that the testator and the
witnesses signed each and every page of the will. This fact , however, appears in the will
itself. It is clear, therefore, that in case of the will complied with all the requisites for its
due execution. In the instant case, essential words were omitted.
In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23,
April 18, 1939), the attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr.
Emiliano Alcala su ultima voluntad o testamentao compuesto de cuatro paginas
incluida ya esta clasula de atestiguamiento. Que estabamos presentes en el
momento de leer y ratificar el que el testamento arriba mencionado es su ultima
voluntad o testamento compuesto de cuatro paginasen papel de maquinilla.
Que igualmente estabamos presentes cuando el firmo este documento al pie
del mismo y en el margen izquierdo de cada pagina del testador tambien en
presencia suya y de cada uno de nosotros en cada pagina y en el margen
izquierdo de esta escritura o testamento. En su testimonio firmamos abajo en
prsencia del testador y de cada uno de nosotros.
The above attestation clause is substantially perfect. The only clerical error is that it says
"testador" instead of "testamento" in the phrase "cada pagina del testador." The word
"tambien" renders unnecessary the use of the verb "firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the
attestation clause did not state the number of pages of the will. However, it was held that
this deficiency was cured by the will itself, which stated that it consisted of three pages
and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947),
decided by the Court of Appeals, the attestation clause (translated in Spanish) reads as
follows:
Nosotros, los testigos, certificamos que este que hemos firmado es el
testamento y ultima voluntad, que se ha redactado en cuatro paginas, de
Numeriano Rallos, quien despues de leer y de leer y de leerle el mencionado
testamento, y despues de que ella dio su conformidad, firmo y marco con su
dedo pulgar derecho en nuestra presencia y en presencia de cada uno de
nosotros, que asimismo cada uno de nosotros, los testigos, firmamos
enpresencia de la testadora y en presencia de cada uno de nosotros.
It will be noticed that the only thing omitted is the statement as to the signing of the
testatrix and the witnesses of each and every page of the will, but the omission is cured
by the fact that their signatures appear on every page. This attestation clause is different
from that involved in the present case.
There is no reason why wills should not be executed by complying substantially with the
clear requisites of the law, leaving it to the courts to supply essential elements. The right
to dispose of property by will is not natural but statutory, and statutory requirements
should be satisfied.
The right to make a testamentary disposition of one's property is purely of
statutory creation, and is available only upon the compliance with the
requirements of the statute. The formalities which the Legislature has
prescribed for the execution of a will are essential to its validity, and cannot be
disregarded. The mode so prescribed is the measure for the exercise of the
right, and the heir can be deprived of his inheritance only by a compliance with
this mode. For the purpose of determining whether a will has been properly
executed, the intention of the testator in executing it is entitled to no
consideration. For that purpose only intention of the Legislature, as expressed
in the language of the statute, can be considered by the court, and whether the
will as presented, shows a compliance with the statute. Estate of Walker, 110
Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am. St. Rep. 104. In re Seaman's
Estate, 80 Pac., 700, 701.)
In interpreting the legislature's thought, courts have rigidly opposed any
exception tending to weaken the basic principle underlying the law, the chief
purpose of which is to see that the testator's wishes are observed. It is possible,
in some or many cases, a decedent may have thought he had made a will, but
the statute says he had not. The question is not one of his intention, but of what
he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills . . . truly
expressing the intertions of the testator are made without observations of the
required forms; and whenever that happens, the genuine intention is
frustrated. . . . The Legislature . . . has taught of it best and has therefore
determined, to run the risk of frustrating (that intention, . . . in preference to the
risk of giving effect to or facilitating the formation of spurious wills, by the
absence of forms. . . . The evil probably to arise by giving to wills made without
any form, . . ." or, in derogation of testator's wishes, fraudulently imposing
spurious wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101,
103 Atl. 533.
It has always been the policy of this court to sustain a will if it is legally possible
to do so, but we cannot break down the legislative barriers protecting a man's
property after death, even if a situation may be presented apparently
meritorious. (In Re: Maginn, 30 A. L. R., pp. 419, 420.)
In view of the foregoing, the decision appealed from is reversed, denying the probate of
the alleged will and declaring intestate the estate of the deceased Carlos Gil. With costs
against the appellee. It is so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.
Separate Opinions
TUAZON, J., dissenting:
The decision takes for granted that the will was written just as it was copied in the
stipulation of facts by the parties. But counsel for appellee makes the correctness of the
copy an issue thereby raising the question of not whether the burnt will possessed the
statutory requirements but whether the copy is erroneous. Since this is a chief feature on
which the appellee's case is built; since, in fact, the objection to form of the attestation
clause, with which the decision wholly deals, would disappear if the appellee's contention
were well founded, it is proper that in this dissenting opinion we should accord the matter
at least a passing notice.
It may be stated as background that the original of the will was filed in the Court of First
Instance of Manila in 1943; that in 1945, before the will came up for probate, it was
destroyed by fire or looters; that in the probate proceeding after liberation, the parties
submitted an agreed statement of facts in which the will was reproduced as copied in the
record on appeal in another case docketed in this court on appeal as G.R. No. L-254 and
decided on April 30, 1948. It further appears from the record of that case and from the
decision of this court that the controversy there concerned the right of a nephew of the
testator to impugn the will, it being alleged that he was not a legal heir and had no
interest in the probate.
As transcribed in the majority decision, it will be seen that the attestation clause is
truncated and meaningless. The last of the compound sentence in incomplete, lacking an
adjective phrase. Counsel for appellee contends that the phrase "ha sido firmado por el
testador" or equivalent expression between the words "del mismo" and the words "en
nuestra presencia" should be inserted if the sentence is to be complete and have sense.
The attestation clause with the inclusion of the omitted phrase, which we italicize should
read thus:
Nosotros, los que suscribimos, todos mayores de edad, certificamos que el
testamento que precede escrito en la lengua castellana que conoce la testador,
compuesto de las paginadas utiles con la clausula de atestiguamiento
paginadas correlativamente en letras y numeros en la parte superior de la
casilla, asi como todos las hojas del mismo (Ha sido firmado por el testador) en
nuestra presencia y que cada de nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo presencia del testador y en la de cada
uno de nosotros.
It seems obvious that the missing phrase was inadvertently left out. The probabilities of
error in the copy are enhanced by the fact that the form of the will was not in controversy.
The form of the will being immaterial, it is easily conceivable that little or on care was
employed in the copying thereof in the pleading or record on appeal above mentioned.
The absence of the signature of the testator on the first page of the copy is an additional
proof that little or on pain was taken to insure accuracy in the transcription. The
appearance of "la testadora" in the copy instead of "el testador" is another.
Quite aside from all this, the testator was presumed to know the law, as the decision
says. Certainly, Attorney Mariano Omaa, who drafted the whole instrument and signed it
as an attesting witness, knew the law and, by the context of the whole instrument, has
shown familiarity with the rules of grammar and ability to express his idea properly.
Read in the light of these circumstances without mentioning the evidence or record,
not objected to, that the testator signed the will in the presence of the attesting witnesses
so important an omission as to make the sentence senseless granting such
omission existed in the original document-could not have been intentional or due to
ignorance. The most that can be said is that the flaw was due to a clerical mistake,
inadvertance, or oversight.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced
in the record on Appeal" above mentioned is bound by the agreement. This is not an
absolute rule. The binding effect of a stipulation on the parties does not go to the extent
of barring them or either of them from impeaching it on the score of clerical error or clear
mistake. That there was such mistake, is indubitable. It is noteworthy that the opponent
and appellant herself appears not to have noticed any defect in the attestation clause as
copied in the stipulation. It would seem that in the court below she confined her attack on
the will to the alleged failure of the testator to sign the first page. We say this because it
was only the alleged unsigning of the first page of the document which the trial court in
the appealed decision discussed and ruled upon. There is not the slightest reference in
the decision, direct or implied, to any flaw in the attestation clause which is by far
more important than the alleged absence of the testator's signature on the first page.
As stated the problem posed by the omission in question is governed, not by the law of
wills which requires certain formalities to be observed in the execution, but by the rules of
construction applicable to statues and documents in general. And this rule would obtain
even if the omission had occurred in the original document and not in the copy alone. In
either case, the court may and should correct the error by supplying the omitted word or
words.
In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que
en su redaccion se ha incurrido en omisiones que la razon y el sentido comon
pueden suplirlas sin alterar ni tergiversar la intencion tanto del testador como la
de los tres testigos que intervinieron en el otorgamiento de la misma. Teniendo
en cuenta la fraselogia de la segunda parte de la clausula se observara que las
omisiones, aunque son substanciales, consisten en meros errores gramaticales
que los tribunales, en el ejercicio de su discrecion y en la aplicacion de las
reglas de interpretacion de documentos, pueden subsanarlos para dar
efectividad a la intencion y hacer que el conjunto de los terminos de la clausula
de atestacion surtan sus efectos.
La interpritacion que se acaba de bar a la clausula de atestacion y la correccion
de los errores gramaticales de que misma adolece, incluyendo la insercion del
verbo "firmamos" que se omitio involuntariamente, esta de acuerdo con las
reglas fundamentals de interpretacion de documentos segun las cuales se debe
hacer prevalecer siempre la intencion del que haya redactado el instrumento
(art. 288, Cod. de Proc. Civ.; Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., sec.
187, pags. 225, 226.)
La solucion que se acaba de bar al asunto es la que se halla mas conforme con
la justificia en vista de que se ha presentado prueba alguna que insinue
siquiera que en el otorgamiento del testamento se ha cometido dolo o fraude
con el animo de perjudiar a cualquiera. (Testamentaria de Emiano Alcala, 40 G.
O., 14. Suplemento, No. 23, pags. 131, 132.)
From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court
whenever necessary to effectuate the testator's intention as expressed in the will; but not
where the effect of inserting the words in the will would alter or defeat such intention, or
change the meaning of words that are clear and unequivocal." On pages 50, 51, the
same work says: "To aid the court in ascertaining and giving effect to the testator's
intention in the case of an ambiguous will, certain rules have been established for
guidance in the construction or interpretation to be placed upon such a will, and in
general a will should be construed according to these established rules of construction."
Speaking of construction of statutes which, as has been said, is applicable to
construction of documents, the same work, in Vol. 59, p. 992, says: "Where it appears
from the context that certain words have been inadvertently omitted from a statute, the
court may supply such words as are necessary to complete the sense, and to express
the legislative intent.
Adding force to the above principle is the legal presumption that the will is in accordance
with law. (2 Page on Wills, 840, 841; 57 Am. Jur., 720.)
Let us assume, for the purpose of this decision only, that the attestation clause was
drawn as the draftsman intended, that the mistake in language in said clause was not
inadvertent, and consider the case on the premise from which the court has approached
it; is the decision well grounded, at least in the light of this court's previous decisions?
At the outset, it should be pointed out that as early as 1922 a similar case, in which the
validity of the will was sustained, found its way into this court. (Aldaba vs. Roque, 43
Phil., 378). The case was more than four-square behind the case at bar. There the
departure from the statutory formality was more radical, in that the testator took charge or
writing the entire attestation clause in the body of the will, the witnesses limiting their role
to signing the document below the testator's signature. Here, at most, the testator took
away from the witness only a small part of their assigned task, leaving them to perform
the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous
decision in banc, through Mr. Justice Villamor said (syllabus): "When the attestation
clause is signed by the witnesses to the instruments besides the testator, such
attestation clause is valid and constitutes a substantial compliance with the provisions of
section 1 of Act No. 2645, even though the facts recited in said attestation appear to
have been make by the testator himself."
That was good doctrine when it was announced. We think it is good law still. That ruling
should set the present case at rest unless the court wants to discard it. On the possibility
that this is the intention, we will dwell on the subject further.
This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil., 437, "that there
have been noticeable in the Philippines two divergent tendencies in the law of wills the
one being planted on strict construction and the other on liberal construction. A late
example of the former views may be found in the decision in Rodriguez vs. Alcala (1930),
55 Phil., 150, sanctioning a literal enforcement of the law. The basic case in the other
direction,predicated on reason, is Abangan vs. Abangan (1919), 40 Phil., 476, oft-cited
approvingly in later decisions." In the Abangan case, unanimous court, speaking through
Mr. Justice Avancea, later Chief Justice, observed: "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
primodial 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 last will, must be disregarded."
Subsequent decisions which followed and adopted the Abangan principle were
numerous: Avera vs. Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil.,
378; Unson vs. Abella (1922,) 43 Phil., 494; Pecson vs. Coronel (1923), 45 Phil.,
216; Fernandez vs. Vergel de Dios (1924), 46 Phil., 922; Nayve vs. Mojal (1924), 47
Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs. Cartegana (1931), 56
Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de M. Ozoa (1933),
57 J. F., 1007; Sebastian vs. Paganiban (1934), 59 Phil., 653; Rodriguez vs.
Yap (1939)1, 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz.,
1st Suppl. No. 3, p. 196; Leynez vs. Leynez (1939)3, 40 Off. Gaz., 3rd Suppl. No. 7, p.
51; Martir vs. Martir (1940)4, 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs.
Fernandez (1941)5, 40 Off. Gaz., 1844; Mendoza vs. Pilapil (1941)6 40 Off. Gaz.,
1855; Alcala vs. De Villa (1941)7, 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs.
Liboro (1948)8, 46 Off. Gaz., Suppl. No. 1, p. 211.
The majority decision says, and we quote: "If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in
wills? Where are we to draw the line?" These same questions might well have been
asked in the case above cited by the opponents of the new trends. But the so-called
liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The decisions we have cited to tell us when and where to stop; the
dividing line is drawn with precision. They say "Halt" when and where evidence aliunde to
fill a void in any part of the document is attempted. They only permit a probe, an
exploration within the confines of the will, to ascertain its meaning and to determine the
existence or absence of the formalities of law. They do not allow the courts to go outside
the will or to admit extrinsic evidence to supply missing details that should appear in the
will itself. This clear, sharp limitation eliminates uncertainly and ought to banish any fear
of dire results.
The case at hand comes within the bounds thus defined. If the witnesses here purposely
omitted or forgot that the testator signed the will in their presence, the testator said that
he did and the witnesses by their signatures in the will itself said it was so. No
extraneous proof was necessary and none was introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it was the thing
that led to unfortunate consequences. It was the realization of the injustice of the old way
that impelled this court, so we believe, to forsake the antiquated, outworn worship of form
in preference to substance. It has been said, and experience has known, that the
mechanical system of construction has operated more to defeat honest wills than prevent
fraudulent ones. That, it must be conceded, is the effect in this case of this court's
rejection of the will under consideration. For the adverse party concedes the
genuineness of the document. At least, the genuineness is super obvious, and there is
not the slightest insinuation of undue pressure, mental incapacity of the testator of fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence
"would be like lifting one's self by his own bootstraps." The simile, we say with due
respect, does not look to us quite well placed. Under physical law a man cannot raise his
body from the ground by his own bare hands without the aid of some mechanical
appliance, at least not for more than a flitting moment. But there is no impossibility or
impropriety in one attesting to his own act unless forbidden by rules of positive law. The
rationale of our dissent is that he is not. If we were to make a metaphorical comparison, it
would be more appropriate to say that a man can and generally does himself pull the
bootstraps to put the boots on.
Coming to execution of wills, we see no legitimate practical reason for objecting to the
testator instead of the witnesses certifying that he signed the will in the presence of the
latter. The will is the testator's and the intervention of attesting witnesses is designed
merely to protect the testator's and not anybody else's interest.
If the sole purpose of the statute is to make it certain that the testator has definite and
complete intention to pass his property, and to prevent, as far as possible, any chance of
substituting one instrument for another (1 Page on Wills, 481), What better guaranty of
the genuineness of the will can there be than a certification by the testator himself in the
body of the will so long as the testator's signature is duly authenticated? Witnesses may
sabotage the will by muddling it or attestation clause. For the testator, who is desirous of
making a valid will, to do so would be a contradiction. If the formalities are only a means
to an end and not the end themselves, and that end is achieved by another method
slightly different from the prescribed manner, what has been done by the testator and the
witnesses in the execution of the instant will should satisfy both law and conscience. The
chief requirements of statutes are writing, signature by the testator, and attestation and
signature of three witnesses. Whether the courts profess to follow the harsher rule,
whether to follow the milder rule, they agree on one thing that as long as the testator
performs each of those acts the courts should require no more. (1 Page on Wills, 481,
484.)
Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.
RESOLUTION
March 20, 1953
TUASON, J.:
This appeal is before us on a motion for reconsideration of this court's decision. Whereas
formerly six justices voted for reversal and five for affirmance of the probate court's order
admitting the will to probate, the vote upon reconsideration was six for affirmance and
five for reversal, thereby making the dissenting opinion, which had been filed, the
prevailing rule of the case. Under the circumstances, this resolution will largely be
confined to a restatement of that dissenting opinion.
The will in question was presented for probate in the Court of First Instance of Manila in
1943 with Roberto Toledo y Gil, decedent's nephew, and Pilar Gil Vda. de Murciano,
decedent's sister opposing the application. Toledo's legal right to intervene was
questioned by the proponent of the will, and the objection was sustained in an order
which was affirmed by this court in G. R. No. L-254. As a result of the latter decision,
Toledo was eliminated from the case and did not appear when the trial was resumed.
The proceeding seems to have held in abeyance pending final disposition of Toledo's
appeal, and early in 1945, before the application was heard on the merit, the record,
along with the will, was destroyed, necessitating its reconstitution after liberation. In the
reconstitution, a stipulation of facts was submitted in which, according to the appealed
order, "both parties . . . agreed that the will as transcribed in the record on appeal in
Case G. R. No. L-254 is true and a correct copy.
The will consisted of only two pages, and the attestation clause as thus copied reads:
NOSOTROS los que suscribimos, todos mayores de edad, certificamos: que el
testamento que precede escrito en la lengua castellana que canoce la testador,
compuesto de dos paginas utiles con la clausula de atestigamiento paginadas
correlativamente en letras y numeros en la parte superior de la casilla, asi como
todas las hojas del mismo, en nuestra presencia y que cada uno de nosotros
hemos atestiguado y firmado dicho documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA.
(Fdo.) RAMON MENDIOLA.
(Fdo.) MARIANO OMAA
It will be noted from the above copy that the last of the compound sentence is truncated
and meaningless. This defect is the main basis of the appellant's sole assignment of
error.
Counsel for appellee contend that the phrase "han sido firmadas por el testador" or
equivalent expression between the words "del mismo" and the words "en nuestra
presencia" should be inserted if the attestation clause is to be complete and have sense.
With this insertion the attestation clause would read ". . ., asi como todas las hojas del
mismo han sido firmadas por el testador en nuestra presencia . . ." The point is well
taken.
It seems obvious that the missing phrase was left out from the copy. The probabilities of
error in the copy are enhanced by the fact that the form of the Will was not controversy in
Toledo's appeal. The form of the will being immaterial, it is easily conceivable that little or
no care was employed in transcribing the document in the agreement or record on
appeal. The absence of the signature of the testator on the first page of the copy is an
additional proof that little or no pain taken to insure accuracy in the transcription. The
appearance of "la testadora" in the copy instead of "el testador" is another indication of
the haste and carelessness in the transcription.
Quite aside from all this, the testator was presumed to know the law, as the trial court
says. Certainly, Attorney Mariano Omaa, who drew the instrument and signed it as an
attesting witness, knew the law and, by the context thereof, has shown familiarity with the
rules of grammar and ability to express his idea properly. In the light of these
circumstances and of further fact that the clause was brief and, by its importance, must
have been written with utmost concern, so important an omission as to make the clause
or sentence senseless could not have been made, intentionally or otherwise, in the
original.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced
in the Record on appeal" is bound by the agreement. This is not an absolute rule. The
binding effect of a stipulation on the parties does not go to the extent of barring either of
them from impeaching it on the score of clerical error or clear mistake. The mistake just
pointed out clearly brings the case within the exceptions of the rule. The able counsel for
the proponent of the will could not possibly have subscribed to the agreement if they had
noticed the incomplete sentence in the copy without making an objection or reservation.
The problem posed by the omission in question is governed, not by the law of wills which
requires certain formalities to be fulfilled in the execution, but by the rules of construction
applicable to statutes and documents in general. And this rule would obtain whether the
omission occurred in the original document or in the copy alone. In either case, the court
may and should correct the error by supplying the omitted word or words.
In Testamentaria del finado Emiliano Alcala, a similar situation arose and the court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que
en su redaccion se ha incurrido en omisiones que la razon y el sentido cumon
pueden suplirlas sin altenar ni tergiversar la intencion tanto del testador como la
de los tres testigos que intervenieron en el otorgamiento de la misma. Teniendo
en cuenta la fraseologia de la segunda parte de la clausula se observara que
las omisiones, aunque son substanciales, consisten en meros errores
gramaticales que los tribunales, en el ejercicio de su discrecion y en la
aplicacion de las reglas de interpretacion de documentos, pueden subsanarlos
para dar efectividad a la intencion y hacer que el conjunto de los terminos de la
clausula de atestacion surtan efectos.
La interpretacion que se acaba de dar a la clausula de atestacion y la
correccion de los errores gramanticales de que misma adolece, incluyedo la
insercion del verbo "firmamos" que se omitio involuntariamente, esta de acurdo
con las reglas fundamentales de interpretacion de documentos segun las
cuales se debe hacer prevalecer siempre la intencion del que haya redactado el
instrumento (art 286, Cod. de Proc. Civil; Pecson contra Coronel, 45 Jur. Fil.,
224; 28 R. C. L., sec. 187, pages. 225, 226).
La solucion que se acaba de dar al asunto es la que se halla mas conforme con
la justicia en vista de que no se ha presentado prueba alguna que insinue
siquiera que en el otorgamiento del testamiento se ha cometido dolo o fraude
con el animo de perjudicar a cualquiera. Testamentaria de Emiliano Alcala, 40
Gaz. Of., 14. Supplemento, No. 23, pags. 131, 132.)
From 69 C. J. 82, 83, we quote: "Words omitted from a will may be supplied by the court
whenever necessary to effectuate the testator's intention as expressed in the will: but not
where the effect of inserting the words in the will would alter or defeat such intention, or
change the meaning of words that are clear and unequivocal." On pages 50 and 51, the
same work says: "To aid the court in ascertaining and giving effect to the testator's
intention in the case of an ambiguous will, certain rules been established for guidance in
the construction or interpretation to be placed upon such a will, and in general a will
should be construed according to these established rules of construction." And referring
to construction of statues which, as has been said, is applicable to construction of
documents, C. J. S., in Vol. 59, p. 992, tells us that "Where it appears from the context
that certain words have been inadvertently from a statute, the court may supply such
words as are necessary to complete the sense, and to express the legislative intent."
Adding force to the above principle is the legal presumption that the will is in accordance
with law. (2 Page on Wills 840; 57 Am. Jur., 720.)
But let it be assumed, for the sake of this decision only, that the attestation clause was
drawn exactly as it was copied in Toledo's record on appeal, was the mistake fatal? Was
it, or was it not, cured by the testator's own declaration? to wit: "En testimonio de lo cual,
firmo este mi testamento y en el margen izquierdo de cada una de sus dos paginas
utiles con la clausula de atestiguamiento en presencia de los testigos, quienes a su vez
firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia
cada uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia 27 de
marzo de mil novecientos treinta y nueve." The answer is in the negative.
As early as 1922 a similar case, in which the validity of the will was sustained, found its
way into this court. See Aldaba vs. Roque, 43 Phil., 378. That case was more than
foursquare behind the case at bar. There the departure from the statutory formality was
more radical, in that the testator took charge of writing the entire attestation clause in the
body of the will, the witnesses limiting their role to signing the document below the
testator's signature. Here, at the most, the testator took away from the witnesses only a
small part of their assigned task, leaving to them the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous
decision in banc, through Mr. Justice Villamor said in the Adalba-Roque case (syllabus):
When the attestation clause is signed by the witnesses to the instruments, besides the
testator, such attestation clause is valid and constitutes a substantial compliance with the
provisions of section 1 of Act No. 2645, even though the facts recited in said attestation
clause appear to have been made by the testator himself.
That ruling should set the present case at rest unless we want to revert to the old,
expressly abandoned doctrine, in a long line of what we believe to be better-considered
decisions.
This court noted in Dichoso de Ticson vs. De Gorostiza (1922), 57 Phil., 437, "that there
have been noticeable in the Philippines two divergent tendencies in the lie of wills the
one being planted on strict construction and the other on liberal construction. A late
example of the former views be found in the decision in Rodriguez vs. Alcala (1930), 55
Phil., 150, sanctioning a literal enforcement of the law. The basic rule in the other
direction, predicated on reason, is Abangan vs. Abangan (1919), 40 Phil., 476, oft-cited
approvingly in later decisions."
In the Abangan case, a unanimous court, speaking through Mr. Justice Avancea, later
Chief Justice, observed:
"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 primodial 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 last will, must be
disregarded."
Subsequent decisions which followed and adopted the Abangan principle were: Avera
vs. Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs.
Abella (1922), 43 Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs.
Vergel de Dios (1924), 46 Phil., 922; Neyve vs. Mojal (1924), 47 Phil., 152; De Gala vs.
Gonzales (1929), 53 Phil., 104; Rey vs. Cartagena (1931), 56 Phil., 282; Ticson vs.
Gorostiza (1932), 57 Phil., 437; Testamentaria de N. Ozoa (1933), 57 J. F.,
1007; Sebastian vs. Panganiban (1934), 59 Phil., 653; Rodriguez vs. Yap (1939), 40 Off.
Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939), 40 Off. Gaz., 1st Suppl., No. 3, p.
196; Leynez vs. Leynez (1939), 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs.
Martir (1940), 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941), 40
Off. Gaz., 1844; Mendoza vs. Pilapil (1941), 40 Off. Gaz., 1855; Alcala vs. De
Villa (1941), 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948), 46
Off. Gaz., Suppl. No. 1, p. 211.
It is objected that "If we cure a deficiency by means of inferences, when are we going to
stop making inferences to supply fatal deficiencies in wills? Where are we to draw the
line?" These same question might well have been asked by the opponents of the new
trends in the cases above cited. But the so-called liberal rule does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell
us when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the will, an exploration
within its confines, to ascertain its meaning or to determine the existence or absence of
the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results.
The case at hand comes within the bounds thus defined if the witnesses here purposely
omitted or forgot to say that the testator signed the will in their presence, the testator said
that he did and the witnesses by their signatures in the will itself said it was so. No
extraneous proof was necessary and none was introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it was the thing
that led to unfortunate consequences. It was the realization of the injustice of the old way
that impelled this court, so we believe, to forsake the antiquated, outworn worship of form
in preference to substance. It has been said, and experience has shown, that the
mechanical system of construction has operated more to defeat honest wills than prevent
fraudulent ones. That, must be conceded, would be the effect in this case if the will under
consideration were rejected. For the adverse party now concedes the genuineness of the
document. At any rate, the genuineness is super obvious, and there is not the slightest
insinuation of undue pressure, mental incapacity of the testator, or fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence
"would be like lifting one's self by his own bootstraps." The simile does not look to us
quite well placed. There is no impossibility or impropriety in one attesting to his own act
unless forbidden by rules of positive law. The rationale of this decision is that he is not. If
we were to make a metaphorical comparison, it would be more correct to say that a man
can and generally does himself pull the bootstraps when he puts his boots on.
Coming to execution of wills, we see no legitimate, practical reason for objecting to the
testator instead of the witnesses certifying that he signed the will in the presence of the
latter. The will is of the testator's own making, the intervention of attesting witnesses
being designed merely to protect his interest. If the sole purpose of the statute in
requiring the intervention of witnesses is to make it certain that the testator has definite
and complete intention to pass his property, and to prevent, as far as possible, any
chance of substituting one instrument for another (1 Page on Wills, 481), what better
guaranty of the genuineness of the will can there be than a certification by the testator
himself in the body of the will so long as the testator's signature is duly authenticated?
Witnesses may sabotage the will by muddling and bungling it or the attestation clause.
For the testator, who is desirous of making a valid will, to do so would be a contradiction.
If the formalities are only a means to an end and not the end themselves, and that end is
achieved by another method slightly from the prescribed manner, what has been done by
the testator and the witnesses in the execution of the instant will should satisfy both law
and conscience.
A second ground of attack on the questioned will is that the first page or sheet thereof
does not bear the testator's signature. The discussion on the correctness of the copy of
the attestation clause amply answers this objection in fact, the appellee's case is much
stronger on this point for the reason that there is not only speculative but also positive
basis for the conclusion that the testator's signature was affixed to the first page of the
original. Both the testator and the attesting witnesses stated in the will and in the
attestation clause, respectively, that the former signed both pages or sheets of the
testament.
Upon the foregoing consideration, the order of the probate court is affirmed with costs.
A motion dated February 17, 1953, was filed after the motion for reconsideration was
deliberated and voted upon, in behalf of the minor children of Carlos Worrel, who was a
residuary legatee under the will and who is alleged to have died on February 6, 1949.
The motion prays that a guardian ad litem be appointed for the said children, and allowed
to intervene and file "A Supplementary Memorandum in Support of Appellant's
(Appellee's?) Motion for reconsideration." Counsel for the appellant objects to the motion
on the ground that the movants having only a contingent interest under the will are not of
right entitled to intervene.
As this case has already been considerably delayed and thoroughly considered and
discussed from all angles, it is the sense of the court that the children's intervention with
the consequent further delay of the decision would not serve the best interest of the
parties. For this reason, the motion is denied.
Paras, Feria, Montemayor, Bautista Angelo and Labrador, JJ., concur.
Padilla and Reyes, JJ., dissent.
JUGO, PABLO and BENGZON, JJ., dissenting:
I dissent on the ground set forth in my opinion rendered in this case.
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 be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator
and the attesting witness. 15hence it is likewise known as notarial will. Where the
attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will,
if able to do so. Otherwise, he should designate two persons who would read the will and
communicate its contents to him in a practicable manner. On the other hand, if the
testator is blind, the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the testator himself. This kind of will, unlike the
ordinary type, requires no attestation by witnesses. A common requirement in both kinds
of will is that they should be in writing and must have been executed in a language or
dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause
likewise need not even be known to the attesting witnesses. 18 The last paragraph of
Article 805 merely requires that, in such a case, the attestation clause shall be
interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the manner
of the execution the same. 19 It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the witnesses, it gives
affirmation to the fact that compliance with the essential formalities required by law has
been observed. 20 It is made for the purpose of preserving in a permanent form a record
of the facts that attended the execution of a particular will, so that in case of failure of the
memory of the attesting witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would
result in the invalidity of the will, 22 should state (1) the number of the pages used upon
which the will is written; (2) that the testator signed, or expressly caused another to sign,
the will and every page thereof in the presence of the attesting witnesses; and (3) that
the attesting witnesses witnessed the signing by the testator of the will and all its
pages, and that saidwitnesses also signed the will and every page thereof in the
presence of the testator and of one another.
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;23 whereas the
subscription of the signature of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that the will is the very
same instrument executed by the testator and attested to by the witnesses.24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause.25 The attestation clause,
therefore, provide strong legal guaranties for the due execution of a will and to insure the
authenticity thereof.26 As it appertains only to the witnesses and not to the testator, it
need be signed only by them.27 Where it is left unsigned, it would result in the invalidation
of the will as it would be possible and easy to add the clause on a subsequent occasion
in the absence of the testator and its witnesses.28
In its report, the Code Commission commented on the reasons of the law for requiring
the formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions
on the law on wills in this Project consists in the liberalization of the
manner of their execution with the end in view of giving the testator
more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the
testator.
This objective is in accord with the modern tendency with respect to
the formalities in the execution of wills. . . .29
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 page thereof bearing the respective signatures of the testator and the
three attesting witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting witnesses
hereto.30 Since it is the proverbial bone of contention, we reproduce it again for facility of
reference:
We, the undersigned attesting Witnesses, whose Residences and
postal addresses appear on the Opposite of our respective names, we
do hereby certify that the Testament was read by him and the testator,
MATEO CABALLERO; has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each
page numbered correlatively in the letters on the upper part of each
page, as his Last Will and Testament and he has 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.
It will be noted that Article 805 requires that the witness should both attest and subscribe
to the will in the presence of the testator and of one another. "Attestation" and
"subscription" differ in meaning. Attestation is the act of senses, while subscription is the
act of the hand. The former is mental, the latter mechanical, and to attest a will is to know
that it was published as such, and to certify the facts required to constitute an actual and
legal publication; but to subscribe a paper published as a will is only to write on the same
paper the names of the witnesses, for the sole purpose of identification.31
In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done
which the statute requires for the execution of a will and that the 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. As it involves a mental act, there would be no means, therefore,
of ascertaining by a physical examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other unless this is substantially
expressed in the attestation.
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. Reyes34 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.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification of
the substantial 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 the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that
is, in accordance with the formalities prescribed by Section 618 of the
Code of Civil Procedure as amended by Act No. 2645. The Supreme
Court of the Philippines had previously upheld the strict compliance
with the legal formalities and had even said that the provisions of
Section 618 of the Code of Civil Procedure, as amended regarding the
contents of the attestation clause were mandatory, and non-
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:
"Art. 829. 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 829."65
The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle
or difficulty, nor does it open the door to serious consequences. The later decisions do
tell us when and where to stop; they draw the dividing line with precision. They do not
allow evidence aliunde to fill a void in any part of the document or supply missing details
that should appear in the will itself. They only permit a probe into the will, an exploration
into its confines, to ascertain its meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to
banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly
directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate of the said
decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.
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 The probate petition adverted to only two (2) heirs, legatees and devisees of the
naunang ginawang habilin o testamento: decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa have resided abroad. Petitioner prayed that the will be allowed, and that letters
kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng testamentary be issued to the designated executor, Vart Prague.
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented
kaibigan; herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking Castillo claimed that the will is a forgery, and that the true purpose of its emergence was
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, so it could be utilized as a defense in several court cases filed by oppositor against
yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa petitioner, particularly for forcible entry and usurpation of real property, all centering on
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na petitioners right to occupy the properties of the decedent.3 It also asserted that contrary
nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten to the representations of petitioner, the decedent was actually survived by 12 legitimate
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa heirs, namely her grandchildren, who were then residing abroad. Per records, it was
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in
pagkakaloob kong ito ay walang pasubalit at kondiciones; 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling mother by three (3) months.5
habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya. Oppositor Geralda Castillo also argued that the will was not executed and attested to in
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. accordance with law. She pointed out that decedents signature did not appear on the
(Sgd.) second page of the will, and the will was not properly acknowledged. These twin
EUGENIA E. IGSOLO arguments are among the central matters to this petition.
(Tagapagmana) After due trial, the RTC admitted the will to probate, in an Order dated 10 August
PATUNAY NG MGA SAKSI 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to
sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 fore "the modern tendency in respect to the formalities in the execution of a will x x x with
ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang the end in view of giving the testator more freedom in expressing his last wishes;"7 and
nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa from this perspective, rebutted oppositors arguments that the will was not properly
amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa executed and attested to in accordance with law.
harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang After a careful examination of the will and consideration of the testimonies of the
panig ng lahat at bawat dahon ng kasulatan ito. subscribing and attesting witnesses, and having in mind the modern tendency in respect
EUGENIA E. IGSOLO to the formalities in the execution of a will, i.e., the liberalization of the interpretation of
address: 500 San Diego St. the law on the formal requirements of a will with the end in view of giving the testator
Sampaloc, Manila Res. Cert. No. A-7717-37 more freedom in expressing his last wishes, this Court is persuaded to rule that the will in
Issued at Manila on March 10, 1981. question is authentic and had been executed by the testatrix in accordance with law.
QUIRINO AGRAVA On the issue of lack of acknowledgement, this Court has noted that at the end of the will
address: 1228-Int. 3, Kahilum after the signature of the testatrix, the following statement is made under the sub-title,
Pandacan, Manila Res. Cert. No. A-458365 "Patunay Ng Mga Saksi":
Issued at Manila on Jan. 21, 1981 "Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
LAMBERTO C. LEAO ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin,
address: Avenue 2, Blcok 7, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
Lot 61, San Gabriel, G.MA., Cavite Res. kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
JUANITO ESTRERA tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan
address: City Court Compound, at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
City of Manila Res. Cert. No. A574829 The aforequoted declaration comprises the attestation clause and the acknowledgement
Issued at Manila on March 2, 1981. and is considered by this Court as a substantial compliance with the requirements of the
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila. law.
(Sgd.) On the oppositors contention that the attestation clause was not signed by the
PETRONIO Y. BAUTISTA subscribing witnesses at the bottom thereof, this Court is of the view that the signing by
Doc. No. 1232 ; NOTARIO PUBLIKO the subscribing witnesses on the left margin of the second page of the will containing the
Page No. 86 ; Until Dec. 31, 1981 attestation clause and acknowledgment, instead of at the bottom thereof, substantially
Book No. 43 ; PTR-152041-1/2/81-Manila satisfies the purpose of identification and attestation of the will.
Series of 1981 TAN # 1437-977-81 With regard to the oppositors argument that the will was not numbered correlatively in
The three named witnesses to the will affixed their signatures on the left-hand margin of letters placed on upper part of each page and that the attestation did not state the
both pages of the will, but not at the bottom of the attestation clause. number of pages thereof, it is worthy to note that the will is composed of only two pages.
The first page contains the entire text of the testamentary dispositions, and the second
page contains the last portion of the attestation clause and acknowledgement. Such
being so, the defects are not of a serious nature as to invalidate the will. For the same
reason, the failure of the testatrix to affix her signature on the left margin of the second
page, which contains only the last portion of the attestation clause and acknowledgment
is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a
forgery, the testimonies of the three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of the testatrix and the due
execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17
August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of
the petition for probate.9 The Court of Appeals noted that the attestation clause failed to
state the number of pages used in the will, thus rendering the will void and undeserving
of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the
number of pages used in a notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil
Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of the will
itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of
pages of the will.12 There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the attestation
clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the
Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will.15 In ruling that the
will could not be admitted to probate, the Court made the following consideration which
remains highly relevant to this day: "The purpose of requiring the number of sheets to be
stated in the attestation clause is obvious; the document might easily be so prepared
that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of
sheets such removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand, the total
number of sheets is stated in the attestation clause the falsification of the document will
involve the inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to
state the number of sheets or pages used. This consideration alone was sufficient for the
Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting
clause is fatal."17 It was further observed that "it cannot be denied that the x x x
requirement affords additional security against the danger that the will may be tampered
with; and as the Legislature has seen fit to prescribe this requirement, it must be
considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact
that the attestation clause did not state the number of pages of the will. Yet the appellate
court itself considered the import of these two cases, and made the following distinction
which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation
does not state the number of pages used upon which the will is written. Hence, the Will is
void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus
Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal,
et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation
does not contain the number of pages used upon which the Will is written. However, the
Decisions of the Supreme Court are not applicable in the aforementioned appeal at
bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et
al., supra," although the attestation in the subject Will did not state the number of pages
used in the will, however, the same was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or
sheets upon which the will is written, which requirement has been held to be mandatory
as an effective safeguard against the possibility of interpolation or omission of some of
the pages of the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil.,
405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing
the will and that if this is missing or is omitted, it will have the effect of invalidating the will
if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While the attestation
clause does not state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations." (page 165-165, supra) (Underscoring
supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that it is really
and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages
including this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in
any part of the Will. The will does not even contain any notarial acknowledgment wherein
the number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in
1950, at a time when the statutory provision governing the formal requirement of wills
was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages of the will
is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did put in
force a rule of interpretation of the requirements of wills, at least insofar as the attestation
clause is concerned, that may vary from the philosophy that governed these two cases.
Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated
that "the underlying and fundamental objective permeating the provisions on the [law] on
[wills] in this project consists in the [liberalization] of the manner of their execution with
the end in view of giving the testator more [freedom] in [expressing] his last wishes. This
objective is in accord with the [modern tendency] in respect to the formalities in the
execution of wills."24 However, petitioner conveniently omits the qualification offered by
the Code Commission in the very same paragraph he cites from their report, that such
liberalization be "but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence
upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of interpretation
of the legal formalities required in the execution of the attestation clause in wills.27 Uy
Coque and Andrada are cited therein, along with several other cases, as examples of the
application of the rule of strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under
Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how
Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are
three or the will was notarized. All these are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation clause
failed to state that the witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other,30 the other omission cited by Justice J.B.L.
Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct
the allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation
clause to state that the testator signed every page can be liberally construed, since that
fact can be checked by a visual examination; while a failure by the attestation clause to
state that the witnesses signed in one anothers presence should be considered a fatal
flaw since the attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was
written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages.33 The failure to state the number of pages equates
with the absence of an averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had ostensibly just witnessed
and subscribed to. Following Caneda, there is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is comprised of, as was
the situation in Singson and Taboada. However, in this case, there could have been no
substantial compliance with the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the
members of the Code Commission in incorporating Article 805, the fact remains that they
saw fit to prescribe substantially the same formal requisites as enumerated in Section
618 of the Code of Civil Procedure, convinced that these remained effective safeguards
against the forgery or intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey property post
mortem in the manner established in the will.35 The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the
fruition of the testators incontestable desires, and not for the indulgent admission
of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination
of the will itself reveals a couple of even more critical defects that should necessarily lead
to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the left-hand
margin of the will, they do not appear at the bottom of the attestation clause which after
all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin."37 While
three (3) Justices38 considered the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear
at the bottom of the attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation
clause is "a memorandum of the facts attending the execution of the will" required by law
to be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the
omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-
hand margin conform substantially to the law and may be deemed as their signatures to
the attestation clause. This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of all its pages. If an
attestation clause not signed by the three witnesses at the bottom thereof, be admitted
as sufficient, it would be easy to add such clause to a will on a subsequent occasion and
in the absence of the testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the will,
from the requisite that the will be "attested and subscribed by [the instrumental
witnesses]." The respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing forms part of the will.
On the other hand, the signatures to the attestation clause establish that the witnesses
are referring to the statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental witnesses signed
the left-hand margin of the page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such clause.
Without diminishing the value of the instrumental witnesses signatures on each and
every page, the fact must be noted that it is the attestation clause which contains the
utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number of
pages used upon which the will is written; the fact that the testator had signed the will
and every page thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof in the will that
the witnesses have stated these elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also
hinge. The requirement under Article 806 that "every will must be acknowledged before a
notary public by the testator and the witnesses" has also not been complied with. The
importance of this requirement is highlighted by the fact that it had been segregated from
the other requirements under Article 805 and entrusted into a separate provision, Article
806. The 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 had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under
Article 806. A notarial will that is not acknowledged before a notary public by the
testator and the witnesses is fatally defective, even if it is subscribed and sworn to
before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the
will in question. We need not discuss them at length, as they are no longer material to
the
disposition of this case. The provision requires that the testator and the instrumental
witnesses sign each and every page of the will on the left margin, except the last; and
that all the pages shall be numbered correlatively in letters placed on the upper part of
each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-called "logical end"44 of
the will on its first page. Also, the will itself is not numbered correlatively in letters on each
page, but instead numbered with Arabic numerals. There is a line of thought that has
disabused the notion that these two requirements be construed as mandatory.45Taken in
isolation, these omissions, by themselves, may not be sufficient to deny probate to a will.
Yet even as these omissions are not decisive to the adjudication of this case, they need
not be dwelt on, though indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the
probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.