curzar la Sagrada Teologio, y ordenado de
Sacerdote, hasta su muerte; pero que pierde
SUCCESSION (ARTICLE 791- 810)
G.R. No. L-22036 April 30, 1979
1. TESTATE ESTATE OF THE LATE REVEREND FATHER
PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN
CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-
appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR
DE RIGOR and JOVITA ESCOBAR DE FAUSTO, respondents-
appellees.
This case is about the efficaciousness or enforceability of a
devise of ricelands located at Guimba, Nueva Ecija, with a total
area of around forty- four hectares That devise was made in the
will of the late Father Pascual Rigor, a native of Victoria Tarlac, in
favor of his nearest male relative who would study for the
priesthood.
The parish priest of Victoria, who claimed to be a trustee of the
said lands, appealed to this Court from the decision of the Court
of Appeals affirming the order of the probate court declaring that
the said devise was inoperative (Rigor vs. Parish Priest of the
Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-
R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of
Pulilan, Bulacan, died on August 9, 1935, leaving a will executed
on October 29, 1933 which was probated by the Court of First
Instance of Tarlac in its order of December 5, 1935. Named as
devisees in the will were the testators nearest relatives, namely,
his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto
and Nestora Rigor-Quiambao. The testator gave a devise to his
cousin, Fortunato Gamalinda.
In addition, the will contained the following controversial bequest
(paragraphing supplied to facilitate comprehension of the
testamentary provisions):
Doy y dejo como legado CUATRO (4)
PARCELAS de terreno palayeros situados en
el municipiooo de Guimba de la provinciaaa de
NUEVA ECIJA, cuyo num. de CERTIFICADO
DE TRANSFERENCIA DE TITULO SON; —
Titulo Num. 6530, mide 16,249 m. cuadrados
de superficie Titulo Num. 6548, mide 242,998
m. cuadrados de superficie y annual 6525,
mide 62,665 m. cuadrados de superficie; y
Titulo Num. 6521, mide 119,251 m. cuadrados
de superficie; a cualquier pariente mio varon
mas cercano que estudie la carrera eclesiatica
hasta ordenarse de Presbiterado o sea
Sacerdote; las condiciones de estate legado
son;
(1.a) Prohibe en absoluto la venta de estos
terrenos arriba situados objectos de este
legado;
(2.a) Que el legatario pariente mio mas
cercano tendra derecho de empezar a gozar y
administrar de este legado al principiar a
el legatario este derecho de administrar y
gozar de este legado al dejar de continuar sus
estudios para ordenarse de Presbiterado
(Sacerdote).
Que el legatario una vez Sacerdote ya estara
obligado a celebrar cada año VEINTE (20)
Misas rezadas en sufragio de mi alma y de
mis padres difuntos, y si el actual legatario,
quedase excomulgado, IPSO FACTO se le
despoja este legado, y la administracion de
esto pasara a cargo del actual Parroco y sus
sucesores de la Iglecia Catolica de Victoria,
Tarlac.
Y en intervalo de tiempo que no haya legatario
acondicionado segun lo arriba queda
expresado, pasara la administracion de este
legado a cargo del actual Parroco Catolico y
sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado,
acumulara, anualmente todos los productos
que puede tener estate legado, ganando o
sacando de los productos anuales el CINCO
(5) por ciento para su administracion, y los
derechos correspondientes de las VEINTE
(20) Misas rezadas que debiera el Parroco
celebrar cada año, depositando todo lo
restante de los productos de estate legado, en
un banco, a nombre de estate legado.
To implement the foregoing bequest, the administratix in 1940
submitted a project containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy
purported to be given to the nearest male
relative who shall take the priesthood, and in
the interim to be administered by the actual
Catholic Priest of the Roman Catholic Church
of Victoria, Tarlac, Philippines, or his
successors, the real properties hereinbelow
indicated, to wit: XXX
Judge Roman A. Cruz in his order of August 15, 1940, approving
the project of partition, directed that after payment of the
obligations of the estate (including the sum of P3,132.26 due to
the church of the Victoria parish) the administratrix should deliver
to the devisees their respective shares.
It may be noted that the administratrix and Judge Cruz did not
bother to analyze the meaning and implications of Father Rigor's
bequest to his nearest male relative who would study for the
priesthood. Inasmuch as no nephew of the testator claimed the
devise and as the administratrix and the legal heirs believed that
the parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to that ecclesiastic. The
testate proceeding remained pending.
About thirteen years after the approval of the project of partition,
or on February 19, 1954, the parish priest of Victoria filed in the
pending testate proceeding a petition praying for the
appointment of a new administrator (succeeding the deceased
administration Florencia Rigor), who should deliver to the church
the said ricelands, and further praying that the possessors
thereof be ordered to render an accounting of the fruits. The
probate court granted the petition. A new administrator was
appointed. On January 31, 1957 the parish priest filed another
petition for the delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition
dated March 25, 1957 praying that the bequest be d inoperative
and that they be adjudged as the persons entitled to the said
ricelands since, as admitted by the parish priest of Victoria, "no
nearest male relative of" the testator "has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal). That petition was
opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through
Judge Bernabe de Aquino, declared the bequest inoperative and
adjudicated the ricelands to the testator's legal heirs in his order
of June 28, 1957. The parish priest filed two motions for
reconsideration.
Judge De Aquino granted the respond motion for reconsideration
in his order of December 10, 1957 on the ground that the testator
had a grandnephew named Edgardo G. Cunanan (the grandson
of his first cousin) who was a seminarian in the San Jose
Seminary of the Jesuit Fathers in Quezon City. The administrator
was directed to deliver the ricelands to the parish priest of
Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that
order. It held that Father Rigor had created a testamentary trust
for his nearest male relative who would take the holy orders but
that such trust could exist only for twenty years because to
enforce it beyond that period would violate "the rule against
perpetuities. It ruled that since no legatee claimed the ricelands
within twenty years after the testator's death, the same should
pass to his legal heirs, citing articles 888 and 912(2) of the old
Civil Code and article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court of
Appeals erred in not finding that the testator created a public
charitable trust and in not liberally construing the testamentary
provisions so as to render the trust operative and to prevent
intestacy.
As refutation, the legal heirs argue that the Court of Appeals d
the bequest inoperative because no one among the testator's
nearest male relatives had studied for the priesthood and not
because the trust was a private charitable trust. According to the
legal heirs, that factual finding is binding on this Court. They
point out that appellant priest's change of theory cannot be
countenanced in this appeal .
In this case, as in cases involving the law of contracts and
statutory construction, where the intention of the contracting
parties or of the lawmaking body is to be ascertained, the
primary issue is the determination of the testator's intention
which is the law of the case (dicat testor et erit lex. Santos vs.
Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-
28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter
of testaments. When his intention is clearly and precisely
expressed, any interpretation must be in accord with the plain
and literal meaning of his words, except when it may certainly
appear that his intention was different from that literally
expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of
wills." It is "the life and soul of a will It is "the first greatest rule,
the sovereign guide, the polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil.
209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is
that "the testator's intention is to be ascertained from the words
of the wilt taking into consideration the circumstances under
which it was made", but excluding the testator's oral declarations
as to his intention (Art. 789, Civil Code of the Philippines).
To ascertain Father Rigor's intention, it may be useful to make
the following re-statement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest
male relatives who would pursue an ecclesiastical career until
his ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in sacred
theology could enjoy and administer the ricelands, and once
ordained as a priest, he could continue enjoying and
administering the same up to the time of his death but the
devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to
celebrate every year twenty masses with prayers for the repose
of the souls of Father Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested
of the legacy and the administration of the riceland would pass to
the incumbent parish priest of Victoria and his successors.
6. That during the interval of time that there is no qualified
devisee as contemplated above, the administration of the
ricelands would be under the responsibility of the incumbent
parish priest of Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would
accumulate annually the products thereof, obtaining or getting
from the annual produce five percent thereof for his
administration and the fees corresponding to the twenty masses
with prayers that the parish priest would celebrate for each year,
depositing the balance of the income of the devise in the bank in
the name of his bequest.
From the foregoing testamentary provisions, it may be deduced
that the testator intended to devise the ricelands to his nearest
male relative who would become a priest, who was forbidden to
sell the ricelands, who would lose the devise if he discontinued
his studies for the priesthood, or having been ordained a priest,
he was excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of the souls
of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria
would administer the ricelands only in two situations: one, during
the interval of time that no nearest male relative of the testator
was studying for the priesthood and two, in case the testator's
nephew became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no
haya legatario acondicionado", or how long after the testator's
death would it be determined that he had a nephew who would
pursue an ecclesiastical vocation. It is that patent ambiguity that
has brought about the controversy between the parish priest of
Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the
nearest male relative who would study for the priesthood should
be determined. Did the testator contemplate only his nearest
male relative at the time of his death? Or did he have in mind
any of his nearest male relatives at anytime after his death?
We hold that the said bequest refers to the testator's nearest
male relative living at the time of his death and not to any
indefinite time thereafter. "In order to be capacitated to inherit,
the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is
proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to the
testator's nearest male relative at anytime after his death would
render the provisions difficult to apply and create uncertainty as
to the disposition of his estate. That could not have been his
intention.
In 1935, when the testator died, his nearest leagal heirs were his
three sisters or second-degree relatives, Mrs. Escobar, Mrs.
Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind his
nephew or a son of his sister, who would be his third-degree
relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude
what category of nearest male relative would be living at the time
of his death, he could not specify that his nearest male relative
would be his nephew or grandnephews (the son of his nephew
or niece) and so he had to use the term "nearest male relative".
It is contended by the legal heirs that the said devise was in
reality intended for Ramon Quiambao, the testator's nephew and
godchild, who was the son of his sister, Mrs. Quiambao. To prove
that contention, the legal heirs presented in the lower court the
affidavit of Beatriz Gamalinda, the maternal grandmother of
Edgardo Cunanan, who deposed that after Father Rigor's death
her own son, Valentin Gamalinda, Jr., did not claim the devise,
although he was studying for the priesthood at the San Carlos
Seminary, because she (Beatriz) knew that Father Rigor had
intended that devise for his nearest male relative beloning to the
Rigor family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild,
Edgardo G. Cunanan, was not the one contemplated in Father
Rigor's will and that Edgardo's father told her that he was not
consulted by the parish priest of Victoria before the latter filed his
second motion for reconsideration which was based on the
ground that the testator's grandnephew, Edgardo, was studying
for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo
ceased to be a seminarian in 1961. For that reason, the legal
heirs apprised the Court of Appeals that the probate court's order
adjudicating the ricelands to the parish priest of Victoria had no
more leg to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to
evidence aliunde as to the testator's intention and which is
hearsay, has no probative value. Our opinion that the said
bequest refers to the testator's nephew who was living at the
time of his death, when his succession was opened and the
successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio varon
mas cercano que estudie la camera eclesiatica" would include
indefinitely anyone of his nearest male relatives born after his
death, he could have so specified in his will He must have known
that such a broad provision would suspend for an unlimited
period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que
no haya legatario acondicionado"? The reasonable view is that
he was referring to a situation whereby his nephew living at the
time of his death, who would like to become a priest, was still in
grade school or in high school or was not yet in the seminary. In
that case, the parish priest of Victoria would administer the
ricelands before the nephew entered the seminary. But the
moment the testator's nephew entered the seminary, then he
would be entitled to enjoy and administer the ricelands and
receive the fruits thereof. In that event, the trusteeship would be
terminated.
Following that interpretation of the will the inquiry would be
whether at the time Father Rigor died in 1935 he had a nephew
who was studying for the priesthood or who had manifested his
desire to follow the ecclesiastical career. That query is
categorically answered in paragraph 4 of appellant priest's
petitions of February 19, 1954 and January 31, 1957. He
unequivocally alleged therein that "not male relative of the late
(Father) Pascual Rigor has ever studied for the priesthood" (pp.
25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who
became a priest, the unavoidable conclusion is that the bequest
in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as
envisaged in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust was
constituted by the testator in is favor assumes that he was a
trustee or a substitute devisee That contention is untenable. A
reading of the testamentary provisions regarding the disputed
bequest not support the view that the parish priest of Victoria
was a trustee or a substitute devisee in the event that the
testator was not survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria could
become a trustee only when the testator's nephew living at the
time of his death, who desired to become a priest, had not yet
entered the seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not arise, and
could not have arisen in this case because no nephew of the
testator manifested any intention to enter the seminary or ever
became a priest.
The Court of Appeals correctly ruled that this case is covered by
article 888 of the old Civil Code, now article 956, which provides
that if "the bequest for any reason should be inoperative, it shall
be merged into the estate, except in cases of substitution and
those in which the right of accretion exists" ("el legado ... por
qualquier causa, no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y derecho de
acrecer").
This case is also covered by article 912(2) of the old Civil Code,
now article 960 (2), which provides that legal succession takes
place when the will "does not dispose of all that belongs to the
testator." There being no substitution nor accretion as to the said
ricelands the same should be distributed among the testator's
legal heirs. The effect is as if the testator had made no
disposition as to the said ricelands.

The Civil Code recognizes that a person may die partly testate
and partly intestate, or that there may be mixed succession. The
old rule as to the indivisibility of the testator's win is no longer
valid. Thus, if a conditional legacy does not take effect, there will
be intestate succession as to the property recovered by the said
legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).

We find no merit in the appeal The Appellate Court's decision is

affirmed. Costs against the petitioner.

SO ORDERED

2. Estate of Russell

Brief Fact Summary. Russell executed a will disposing of all her real and
personal property to a close friend and her dog. The trial court held
that the gift to the dog was precatory in nature and that the testator
intended that her close friend care for the dog. Another beneficiary in
the will appealed the decision

Synopsis of Rule of Law. The anti-lapse statute applies to void gifts as

well as beneficiaries who predecease the testator. Extrinsic evidence is
admissible to prove the testator’s intent if in light of the circumstances
surrounding the creation of the will, the language in the will is
susceptible to two or more meanings.
Facts. Thelma Russell executed a will leaving her real and personal
property to H. Quinn and Roxy Russell. Roxy Russell was Russell’s dog.
Russell also disposed of jewelry and money to Georgia Nan Russell
Hembree. The trial court held that Russell intended Quinn to receive
all of her personal and real property and that the gift to the testator’s
dog merely reflected a wish that Quinn care for the dog. Hembree
appeals the decision.
Issue.
Whether a gift lapses under the anti-lapse statute if the gift is void?
Whether extrinsic evidence is admissible because the language of a
will could reasonably signify two or more meanings?
Held.
A gift lapses under an anti-lapse statute if the gift is void. Testamentary
gifts to animals are void. The gift to the dog lapses under the anti-lapse
statute.
Extrinsic evidence is not admissible to prove the testator’s intent
because the language of the will does is not reasonably susceptible to
one or more meaning. Here the testator left her property to an person
and to her dog. The language did not state that the testator was
making a gift to a person for the benefit of the dog. The will on its face
makes a gift to the dog. The language is not precatory in nature.
Extrinsic evidence is not admissible to prove the testator’s intent.
Discussion. In determining whether a gift is clear and definite, a court
will consider outside evidence concerning the creation of the will.
However to prevent fraud, the court will not allow the evidence if the
will itself does not reasonably reflect the intent attempted to be
proved by the outside evidence.
3. G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from
an order of the Court of First Instance of Manila dated April 30,
1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E. Mallen,
whom he divorced, he had five legitimate children: Edward A.
Bellis, George Bellis (who pre-deceased him in infancy), Henry
A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his
second wife, Violet Kennedy, who survived him, he had three
legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy
Bellis; and finally, he had three illegitimate children: Amos Bellis,
Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes, obligations,
and expenses of administration are paid for, his distributable
estate should be divided, in trust, in the following order and
manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each
and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and
second wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter
S. Bellis, and Dorothy E. Bellis, in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident
of San Antonio, Texas, U.S.A. His will was admitted to probate in
the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will,
paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen and
to the three (3) illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis, various amounts totalling
P40,000.00 each in satisfaction of their respective legacies, or a
total of P120,000.00, which it released from time to time
according as the lower court approved and allowed the various
motions or petitions filed by the latter three requesting partial
advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the
executor submitted and filed its "Executor's Final Account,
Report of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of Mary E.
Mallen by the delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each
or a total of P120,000.00. In the project of partition, the executor
— pursuant to the "Twelfth" clause of the testator's Last Will and
Testament — divided the residuary estate into seven equal
portions for the benefit of the testator's seven legitimate children
by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma
Bellis filed their respective oppositions to the project of partition
on the ground that they were deprived of their legitimes as
illegitimate children and, therefore, compulsory heirs of the
deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him,
proof of service of which is evidenced by the registry receipt
submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other
pertinent pleadings, the lower court, on April 30, 1964, issued an
order overruling the oppositions and approving the executor's
final account, report and administration and project of partition.
Relying upon Art. 16 of the Civil Code, it applied the national law
of the decedent, which in this case is Texas law, which did not
provide for legitimes.
Their respective motions for reconsideration having been denied
by the lower court on June 11, 1964, oppositors-appellants
appealed to this Court to raise the issue of which law must apply
— Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31, 1963. Said doctrine is
usually pertinent where the decedent is a national of one country,
and a domicile of another. In the present case, it is not disputed
that the decedent was both a national of Texas and a domicile
thereof at the time of his death.2 So that even assuming Texas
has a conflict of law rule providing that the domiciliary system
(law of the domicile) should govern, the same would not result in
a reference back (renvoi) to Philippine law, but would still refer to
Texas law. Nonetheless, if Texas has a conflicts rule adopting the
situs theory (lex rei sitae) calling for the application of the law of
the place where the properties are situated, renvoi would arise,
since the properties here involved are found in the Philippines. In
the absence, however, of proof as to the conflict of law rule of
Texas, it should not be presumed different from ours.3 Appellants'
position is therefore not rested on the doctrine of renvoi. As
stated, they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls under the
circumstances mentioned in the third paragraph of Article 17 in
relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights; (e)
the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that —
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated by
the national law of the person whose succession is
under consideration, whatever may he the nature of the
property and regardless of the country wherein said
property may be found.
ART. 1039. Capacity to succeed is governed by the law
of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three,
of the Civil Code, stating that —
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a
foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code
afore-quoted. This is not correct. Precisely, Congress deleted the
phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil
Code as Art. 17 of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of the old
Civil Code as Art. 16 in the new. It must have been their purpose
to make the second paragraph of Art. 16 a specific provision in
itself which must be applied in testate and intestate succession.
As further indication of this legislative intent, Congress added a
new provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good
customs may be involved in our System of legitimes, Congress
has not intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia,
the amount of successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two
wills — one to govern his Texas estate and the other his
Philippine estate — arguing from this that he intended Philippine
law to govern his Philippine estate. Assuming that such was the
decedent's intention in executing a separate Philippine will, it
would not alter the law, for as this Court ruled in Miciano v.
Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the
effect that his properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal and void, for
his national law cannot be ignored in regard to those matters that
Article 10 — now Article 16 — of the Civil Code states said
national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A., and that under the laws of
Texas, there are no forced heirs or legitimes. Accordingly, since
the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the
Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in
toto, with costs against appellants. So ordered.
4. G.R. No. L-6801 March 14, 1912
JULIANA BAGTAS, plaintiffs-appellee,
vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
This is an appeal from an order of the Court of First Instance of
the Province of Bataan, admitting to probate a document which
was offered as the last will and testament of Pioquinto Paguio y
Pizarro. The will purports to have been executed in the pueblo of
Pilar, Province of Bataan, on the 19th day of April, 1908. The
testator died on the 28th of September, 1909, a year and five
months following the date of the execution of the will. The will
was propounded by the executrix, Juliana Bagtas, widow of the
decedent, and the opponents are a son and several
grandchildren by a former marriage, the latter being the children
of a deceased daughter.
The basis of the opposition to the probation of the will is that the
same was not executed according to the formalities and
requirements of the law touching wills, and further that the
testator was not in the full of enjoyment and use of his mental
faculties and was without the mental capacity necessary to
execute a valid will.
The record shows that the testator, Pioquinto Paguio, for some
fourteen of fifteen years prior to the time of his death suffered
from a paralysis of the left side of his body; that a few years prior
to his death his hearing became impaired and that he lost the
power of speech. Owing to the paralysis of certain muscles his
head fell to one side, and saliva ran from his mouth. He retained
the use of his right hand, however, and was able to write fairly
well. Through the medium of signs he was able to indicate his
wishes to his wife and to other members of his family.
At the time of the execution of the will there were present the
four testamentary witnesses, Agustin Paguio, Anacleto Paguio,
and Pedro Paguio, and attorney, Señor Marco, and one
Florentino Ramos. Anacleto Paguio and the attorney have since
died, and consequently their testimony was not available upon
the trial of the case in the lower court. The other three
testamentary witnesses and the witness Florentino Ramos
testified as to the manner in which the will was executed.
According to the uncontroverted testimony of these witnesses
the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on pieces of paper
notes and items relating to the disposition of his property, and
these notes were in turn delivered to Señor Marco, who
transcribed them and put them in form. The witnesses testify that
the pieces of paper upon which the notes were written are
delivered to attorney by the testator; that the attorney read them
to the testator asking if they were his testamentary dispositions;
that the testator assented each time with an affirmative
movement of his head; that after the will as a whole had been
thus written by the attorney, it was read in a loud voice in the
presence of the testator and the witnesses; that Señor Marco
gave the document to the testator; that the latter, after looking
over it, signed it in the presence of the four subscribing
witnesses; and that they in turn signed it in the presence of the
testator and each other.
These are the facts of record with reference to the execution of
the will and we are in perfect accord with the judgment of the
lower court that the formalities of the Code of Civil Procedure
have been fully complied with.
This brings us now to a consideration of appellants' second
assignment of error, viz, the testator's alleged mental incapacity
at the time of the execution of the will. Upon this point
considerable evidence was adduced at the trial. One of the
attesting witnesses testified that at the time of the execution of
the will the testator was in his right mind, and that although he
was seriously ill, he indicated by movements of his head what his
wishes were. Another of the attesting witnesses stated that he
was not able to say whether decedent had the full use of his
mental faculties or not, because he had been ill for some years,
and that he (the witnesses) was not a physician. The other
subscribing witness, Pedro Paguio, testified in the lower court as
a witness for the opponents. He was unable to state whether or
not the will was the wish of the testator. The only reasons he
gave for his statement were the infirmity and advanced age of
the testator and the fact that he was unable to speak. The
witness stated that the testator signed the will, and he verified his
own signature as a subscribing witness.
Florentino Ramos, although not an attesting witness, stated that
he was present when the will was executed and his testimony
was cumulative in corroboration of the manner in which the will
was executed and as to the fact that the testator signed the will.
This witness also stated that he had frequently transacted
matters of business for the decedent and had written letters and
made inventories of his property at his request, and that
immediately before and after the execution of the will he had
performed offices of his character. He stated that the decedent
was able to communicate his thoughts by writing. The testimony
of this witness clearly indicates the presence of mental capacity
on the part of the testator. Among other witnesses for the
opponents were two physician, Doctor Basa and Doctor Viado.
Doctor Basa testified that he had attended the testator some four
or five years prior to his death and that the latter had suffered
from a cerebral congestion from which the paralysis resulted.
The following question was propounded to Doctor Basa:
Q. Referring to mental condition in which you found
him the last time you attended him, do you think he was
in his right mind?
A. I can not say exactly whether he was in his right
mind, but I noted some mental disorder, because when
I spoke to him he did not answer me.
Doctor Basa testified at more length, but the substance of his
testimony is that the testator had suffered a paralysis and that he
had noticed some mental disorder. He does not say that the
testator was not in his right mind at the time of the execution of
the will, nor does he give it at his opinion that he was without the
necessary mental capacity to make a valid will. He did not state
in what way this mental disorder had manifested itself other than
that he had noticed that the testator did not reply to him on one
occasion when he visited him.
Doctor Viado, the other physician, have never seen the testator,
but his answer was in reply to a hypothetical question as to what
be the mental condition of a person who was 79 years old and
who had suffered from a malady such as the testator was
supposed to have had according to the testimony of Doctor
Basa, whose testimony Doctor Viado had heard. He replied and
discussed at some length the symptoms and consequences of
the decease from which the testator had suffered; he read in
support of his statements from a work by a German Physician,
Dr. Herman Eichost. In answer, however, to a direct question, he
stated that he would be unable to certify to the mental condition
of a person who was suffering from such a disease.
We do not think that the testimony of these two physicians in any
way strengthens the contention of the appellants. Their
testimony only confirms the fact that the testator had been for a
number of years prior to his death afflicted with paralysis, in
consequence of which his physician and mental strength was
greatly impaired. Neither of them attempted to state what was
the mental condition of the testator at the time he executed the
will in question. There can be no doubt that the testator's
infirmities were of a very serious character, and it is quite evident
that his mind was not as active as it had been in the earlier years
of his life. However, we can not include from this that he wanting
in the necessary mental capacity to dispose of his property by
will.
The courts have been called upon frequently to nullify wills
executed under such circumstances, but the weight of the
authority is in support if the principle that it is only when those
seeking to overthrow the will have clearly established the charge
of mental incapacity that the courts will intervene to set aside a
testamentary document of this character. In the case of Bugnao
vs. Ubag (14 Phil. Rep., 163), the question of testamentary
capacity was discussed by this court. The numerous citations
there given from the decisions of the United States courts are
especially applicable to the case at bar and have our approval. In
this jurisdiction the presumption of law is in favor of the mental
capacity of the testator and the burden is upon the contestants of
the will to prove the lack of testamentary capacity. (In the matter
of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the
will of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil.
Rep., 689.)
The rule of law relating to the presumption of mental soundness
is well established, and the testator in the case at bar never
having been adjudged insane by a court of competent
jurisdiction, this presumption continues, and it is therefore
incumbent upon the opponents to overcome this legal
presumption by proper evidence. This we think they have failed
to do. There are many cases and authorities which we might cite
to show that the courts have repeatedly held that mere
weakness of mind and body, induced by age and disease do not
render a person incapable of making a will. The law does not
require that a person shall continue in the full enjoyment and use
of his pristine physical and mental powers in order to execute a
valid will. If such were the legal standard, few indeed would be
the number of wills that could meet such exacting requirements.
The authorities, both medical and legal, are universal in
statement that the question of mental capacity is one of degree,
and that there are many gradations from the highest degree of
mental soundness to the lowest conditions of diseased mentality
which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as
sacred as any other right which a person may exercise and this
right should not be nullified unless mental incapacity is
established in a positive and conclusive manner. In discussing
the question of testamentary capacity, it is stated in volume 28,
70, of the American and English Encyclopedia of Law, that —
Contrary to the very prevalent lay impression, perfect
soundness of mind is not essential to testamentary
capacity. A testator may be afflicted with a variety of
mental weaknesses, disorders, or peculiarities and still
be capable in law of executing a valid will. (See the
numerous cases there cited in support of this
statement.)
The rule relating to testamentary capacity is stated in Buswell on
Insanity, section 365, and quoted with approval in Campbell vs.
Campbell (130 Ill., 466), as follows:
To constitute a sound and disposing mind, it is not
necessary that the mind shall be wholly unbroken,
unimpaired, or unshattered by disease or otherwise, or
that the testator should be in the full possession of his
reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus stated:
The question is not so much, that was the degree of
memory possessed by the testator, as, had he a
disposing memory? Was he able to remember the
property he was about to bequeath, the manner of
disturbing it, and the objects of his bounty? In a word,
were his mind and memory sufficiently sound to enable
him to know and understand the business in which he
was engaged at the time when he executed his will.
(See authorities there cited.)
In Wilson vs. Mitchell (101 Penn., 495), the following facts
appeared upon the trial of the case: The testator died at the age
of nearly 102 years. In his early years he was an intelligent and
well informed man. About seven years prior to his death he
suffered a paralytic stroke and from that time his mind and
memory were mush enfeebled. He became very dull of hearing
and in consequence of the shrinking of his brain he was affected
with senile cataract causing total blindness. He became filthy
and obscene in his habits, although formerly he was observant of
the properties of life. The court, in commenting upon the case,
said:
Neither age, nor sickness, nor extreme distress, nor
debility of body will affect the capacity to make a will, if
sufficient intelligence remains. The failure of memory is
not sufficient to create the incapacity, unless it be total,
or extend to his immediate family or property. . . .
xxx xxx xxx
Dougal (the testator) had lived over one hundred years
before he made the will, and his physical and mental
weakness and defective memory were in striking
contrast with their strength in the meridian of his life. He
was blind; not deaf, but hearing impaired; his mind
acted slowly, he was forgetful or recent events,
especially of names, and repeated questions in
conversation; and sometimes, when aroused for sleep
or slumber, would seem bewildered. It is not singular
that some of those who had known him when he was
remarkable for vigor and intelligence, are of the opinion
that his reason was so far gone that he was incapable
of making a will, although they never heard him utter an
irrational expression.
In the above case the will was sustained. In the case at bar we
might draw the same contrast as was pictured by the court in the
case just quoted. The striking change in the physical and mental
vigor of the testator during the last years of his life may have led
some of those who knew him in his earlier days to entertain
doubts as to his mental capacity to make a will, yet we think that
the statements of the witnesses to the execution of the will and
statements of the conduct of the testator at that time all indicate
that he unquestionably had mental capacity and that he
exercised it on this occasion. At the time of the execution of the
will it does not appear that his conduct was irrational in any
particular. He seems to have comprehended clearly what the
nature of the business was in which he was engaged. The
evidence show that the writing and execution of the will occupied
a period several hours and that the testator was present during
all this time, taking an active part in all the proceedings. Again,
the will in the case at bar is perfectly reasonable and its
dispositions are those of a rational person.
For the reasons above stated, the order probating the will should
be and the same is hereby affirmed, with costs of this instance
against the appellants.
5. IN RE ESTATE OF BONJEAN
Mr. JUSTICE SCOTT delivered the opinion of the court:
At the time of her death, Armida L. Bonjean was a very troubled
woman. She left surviving her two sisters, Alice Svendsen and Ann
Puhal, and one brother, Gentile Ghidina, and the nephew of a
predeceased brother, Mark Ghidina. She also left a will executed on
December 30, 1976, which has been admitted to probate in the Circuit
Court of Peoria County and which provides the basis for this dispute.
The will bequeaths the majority of her property to Mark Ghidina, to
Norma Craig, her deceased husband's sister, and to Josephine Massa
and Ettore Serangeli, Mrs. Craig's children. Her living sisters and
brother were specifically disinherited. The sisters and brother filed a
petition in the circuit court below which alleges that Mrs. Bonjean was
subject to insane delusions at the time her will was executed and she
was therefore lacking testamentary capacity. After hearings on the
petition the court below concluded that the testatrix suffered "* * *
insane delusions which arose over her misunderstanding of her
family's effort to assist her in her own mental condition * * *." As a
consequence, that same court voided the will. This appeal was
prosecuted seeking our review.
The Probate Act provides that "[e]very person who has attained the
age of 18 years and is of sound mind and memory has power to
bequeath by will the real and personal estate which he has at the time
of his death." (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 4-1.) Interpreting
the "sound mind and memory" requirement of section 4-1 and its
predecessor sections, the courts have held that:
Testamentary capacity requires sufficient mental ability to know and
remember who are the natural objects of [one's] bounty, to
comprehend the kind and character of [one's] property and to make
disposition of the property according to some plan formed in [one's]
mind. (Quellmalz v. First National Bank (1959), 16 Ill.2d 546, 158 N.E.2d
591; Morecraft v. Felgenhauer (1931), 346 Ill. 415, 178 N.E. 877.)
Deliberate disinheritance of an heir does not establish inability to
know the natural objects of testator's bounty. (Beyers v. Billingsley
(1977), 54 Ill.App.3d 427, 437-38, 369 N.E.2d 1320, 1328.)
It was not argued below, nor is it argued here, that the testatrix failed
to meet the test set forth in the Beyers case. However, the petitioners
point to a narrow objection to testamentary capacity which can be
sustained where the testatrix knows the objects of her bounty but
suffers from insane delusions regarding those objects.
• 1 The court decisions which discuss the effect of insane delusions on
testamentary capacity are accurately synthesized in a published
treatise: An insane delusion may render a will invalid if it can be shown
that the will was a product of, or influenced by, the delusion. While it is
difficult to define `insane delusion,' the supreme court has held it to be
present where a testator, without evidence of any kind, imagines or
conceives something to exist which does not exist in fact, and which no
rational person would, in the absence of evidence, believe to exist * *
*.
The insane delusion must affect the will or enter into its execution.
Even if the testator has an insane delusion on a particular subject, if
the property and objects of bounty are known by the testator, and the
property is disposed of according to a plan, the will will not be set
aside for lack of testamentary capacity. (3 Horner, Probate Practice and
Estates § 1384, at 2930 (4th ed. 1979).)
An insane delusion is an irrational belief. Where a testatrix has some
actual grounds for the belief which she has, though regarded by others
as wholly insufficient, the mere misapprehension of the facts or
unreasonable and extravagant conclusions drawn therefrom do not
establish the existence of such a delusion as will invalidate her will.
Snell v. Weldon (1910), 243 Ill. 496, 90 N.E. 1061.
2, 3 The law presumes every man to be sane and of sound mind until
the contrary is proved, with the burden resting upon the party who
asserts it to prove lack of testamentary capacity. (Sloger v. Sloger
(1962), 26 Ill.2d 366, 186 N.E.2d 288.) Consistent with that
presumption, the petitioners here had the burden of proving that Mrs.
Bonjean's disinheritance of her sisters and brother was the result of an
irrational belief. If that act of disinheritance, whether motivated by
prejudice, dislike, or even hatred, can be explained on any rational
ground, then the burden of proof necessary to set aside the will has
not been met. (Jackman v. North (1947), 398 Ill. 90, 75 N.E.2d 324.)
Testamentary capacity is not denied even if the testatrix dislikes and
disinherits her family for bad reasons so long as the bad reasons have
a rational foundation. In re Estate of Stuhlfauth (1980), 88 Ill.App.3d
974, 410 N.E.2d 1063; Estate of Carpenter v. Bailey (1892), 94 Cal. 406,
29 P. 1101.
As we noted at the outset, Armida L. Bonjean was a troubled woman,
but we do not believe that her testamentary rebuff of the petitioners,
her sisters and brother, defies rational explanation.
The glimpses of Mrs. Bonjean's life as recounted by the record on
appeal etch a portrait of human tragedy. The testatrix was unhappily
married for 19 years to Americo Bonjean, and both parties had from
time to time separated and contemplated divorce. Mrs. Bonjean
sought treatment at the George A. Zeller Zone Center for "involutional
melancholia"
[90 Ill. App.3d 585]
during part of 1969. Reconciled with her husband by October 26, 1971,
the spouses argued with each other and Mrs. Bonjean left the
apartment with her husband threatening to take his own life as she
fled. She later returned to discover he had carried out his threat. Later
that same year and twice in 1972 Mrs. Bonjean voluntarily entered the
Zeller Center afflicted with severe guilt, grief and depression. She
blamed herself for her husband's death.
On July 14, 1972, the testatrix was found comatose in her Springfield
apartment. She had attempted suicide by taking drugs and placing a
plastic bag over her head. This was not the first occasion, nor would it
be the last, when Mrs. Bonjean would attempt to take her own life.
Indeed, just a year later on July 17, 1973, the testatrix was admitted to
Zeller Center after her attempt at suicide by jumping off the Murray-
Baker Bridge in Peoria. She was treated for depressive neurosis as an
in-patient until October 15, 1973, when she was released to out-
patient status.

After her release from in-patient care, Mrs. Bonjean became
increasingly antagonistic toward family members. This antagonism
caused the three petitioners to meet and to decide to have the
decedent involuntarily committed. This attempt at involuntary
commitment caused Mrs. Bonjean to be examined on January 9, 1974,
by Dr. P.J. Perkins, who found she had "no psychosis," had "no
combativeness," "was oriented," and "was not certifiable." She was
released for continued out-patient counselling, and to that end she
met with Dr. Ismail Tolek the next day. Contemporaneously, Dr. Tolek
wrote to the circuit court in which the commitment proceeding was
pending, stating that:
During our contacts with Mrs. Bonjean in the past it has come to our
attention that a longstanding conflict has existed between her and
family members. Most recently it appears though that they have
threatened to use her background of previous hospitalizations in
mental facilities to force her commitment to an institution at this time,
which provokes the client to the extent of relating hostility and
resentment to those individuals by phone and by letters; and they in
turn use this against her for involuntary commitment with our system.
* * * It appears that the petitioner's tendency to indulge in the client's
personal affairs has quite a disturbing effect on the emotional well-
being of the client. I feel that I should bring this to your Court's
attention for any additional legal matters being taken to avoid further
harrassment of this client.
Petitioners testified that they sought to place Mrs. Bonjean in Zeller
Center for her own health and safety, strictly altruistic motives, but
that the decedent interpreted their actions as unkind and unfair.
In March of 1975 the testatrix was hired to run the gift shop at the
Greater Peoria Airport. Until she terminated her employment for
health reasons in November 1977, the decedent performed her
employment in a satisfactory manner, accepting considerable
responsibility and maintaining an excellent relationship with her co-
workers. During this time Mrs. Bonjean spoke infrequently, if at all, of
her sisters and brother, making little contact with them. This was in
sharp contrast to the warm and cordial relationship among the siblings
prior to 1973.
During this same period of time the testatrix wrote to public officials
with letters which carried two main themes. First, the letters defended
the right of an individual to take his own life as long as the individual is
not psychotic or a danger to others. Second, the letters expressed the
concern that the method for involuntary commitment provided for in
the Mental Health Code permitted family members to intimidate one
another with the threat of commitment.
On December 5, 1977, Mrs. Bonjean died at the age of 64 from
ingestion of cyanide.
The petitioners argue, and we quote from their brief, that the testatrix
"could not rationally turn against her sisters and brother who did
nothing to her but try to help her." We disagree with that conclusion
and believe the decision reached below is inconsistent with the
uncontradicted evidence.
• 4 The act of suicide, or attempted suicide, is not, per se, proof of
insanity or insane delusions. (Wilkinson v. Service (1911), 249 Ill. 146,
94 N.E. 50; In re Lingenfelter's Estate (1952), 38 Cal.2d 571, 241 P.2d
990; In re Rein's Estate (1946), 139 N.J. Eq. 122, 50 A.2d 380.) Suicide
may, however, be part of a pattern of behavior which eludes rational
explanation. (Wilkinson v. Service.) The actions of the testatrix in the
case at bar do not defy rational explanation. The petitioners concede
that although their actions toward the decedent were prompted by
altruistic concerns, those actions were not always received or
interpreted in the same spirit. We believe Mrs. Bonjean's resentment
of her family's attempt to force her commitment provides a rational
explanation for their disinheritance. The trial court found that the
testatrix misunderstood her family's effort to assist her in her own
mental condition. Yet, "the mere misapprehension of the facts" does
not establish the existence of such a delusion as will invalidate a will.
Snell v. Weldon.
• 5 We find that the facts which fostered Mrs. Bonjean's hostility
toward her sisters and brother have a rational basis. The hostility is not
the product of a "perverted imagination." (Snell v. Weldon.) Mrs.
Bonjean's hostility toward her family can be rationally explained as
deriving from a threat to her personal liberty associated with those
same family members. Because this rational explanation appears
uncontradicted in the record, the burden of proof necessary to set
aside the will has not been met. Jackman v. North (1947), 398 Ill. 90,
75 N.E.2d 324.
• 6 Finally, the notice of appeal filed herein designated the will's
executor, Herget National Bank, as an appellant. The legatees under
the will who were defendants below were not expressly named as
appellants in the notice but were included by the designation "et al."
The petitioners argue that this designation is insufficient and that the
individual legatees are not party to this appeal. While the imprecision
of the designation "et al." should not be encouraged as the method of
enumerating appellants in the statutory notice, under these
circumstances we hold that such a procedure is sufficient. We note
that the signature of each appellant's attorney appears on the notice
(see Ill. Rev. Stat. 1979, ch. 110A, par. 303(c)(3)), as all appellants
including the executor are represented by the same counsel.
The decision of the court below is reversed as to all appellants and the
cause remanded to the Circuit Court of Peoria County for proceedings
not inconsistent with the views expressed herein.
Reversed and remanded.
6. Barnes v. Marshall

Brief Fact Summary. Testator made a will bequeathing a large

portion of his estate to several charities, churches and fraternal
organizations. Plaintiff, testator’s daughter, contested the will on
grounds that testator was not of sound mind at the time of
execution.

Synopsis of Rule of Law. Evidence showing occurrences

involving the testator year prior to the execution of a will can be
admissible to show the testator was not of sound mind at the
time of execution if such occurrences have a direct bearing on
the testator’s condition at the time of execution.

Facts. Testator made a will with the remainder of the estate

going to a trust with payments to be made to the Defendants;
various individuals, charities, churches, and fraternal
organizations. Plaintiff, the testator’s daughter, was to receive
five dollars per year. The estate was appraised at over half a
million dollars. Plaintiff alleged that the testator was not of
sound mind and did not have the mental capacity to make a will.
After testimony from several witnesses that testified that the
testator was of unsound mind and suffering from manic-
depressive psychosis, the trial court found for the Plaintiff.
Defendant appeals the ruling on several points.

Issue.
Whether the evidenced presented showed that the testator was
of sound mind on the day he executed his will?

Whether the trial court erred in refusing certain questions of the

Defendants to be asked of the jurors on voir dire?
Whether the trial court erred in admitting evidence of
occurrences years prior to the execution of the will because it
was too remote to have any probative value?

Whether the trial court erred in permitting lay witnesses to

express an opinion that the testator was of unsound mind?

Whether the trial court erred in refusing to permit a defense

witness to express an opinion that testator was of sound mind?

Whether the trial court erred in refusing to give jury instructions

offered by the Defendant?

Held.
Yes. Affirmed. The evidence showed that the testator’s views on
government, religion, morals, and finances went beyond
peculiarities and eccentricities and a reasonable jury could find
him of unsound mind.

No. Affirmed. The trial court did not abuse its discretion in
rulings relating to the voir dire examination as these rulings will
not be disturbed unless there is a clear indication of abuse of
discretion.

No. Affirmed. Evidence of a testator’s mental condition prior to 7. In re Honigman

the execution of the will is admissible if it tends to show his
condition at the time of the execution. Here the evidence was
that the testator suffered from an incurable mental disease
which has a direct bearing on the testator’s mental condition at
the time of the execution of the will.
No. Affirmed. The refusal to permit this witness to testify was
harmless error because ten other lay witnesses were allowed to
testify to the same opinion.
No. Affirmed. The proposed instructions were cautionary
instructions and these are usually within the discretion of the
trial court at to whether or not to include.
Brief Fact Summary. Decedent’s widow, appellant, appeals from
a decree wherein the court found that decedent was not
suffering from insane delusions. Appellant alleges the decedent
was suffering from insane delusions when he executed the will
because he cut her out of the will based on his belief that she
was unfaithful to him.
Synopsis of Rule of Law. If a person persistently believes
supposed facts, which have no real existence except in his
perverted imagination, and against all evidence and probability,
and conducts himself, however logically, upon the assumption
of their existence, he is, so far as they are concerned, under a
morbid delusion; and delusion in that sense is insanity.

Discussion. The Court affirms the trial court’s judgment finding
that a jury could have reasonably found the testator to be of
unsound mind based on the testimony presented to it. The Court
notes that in regard to questioning during voir dire, counsel has
no right on voir dire to have the prospective juror pledge or
speculate what their action will be in certain situations that may
arise later during trial.
Facts. On May 4, 1956, Frank Honigman, decedent, died and was
survived by his wife, Florence. Under a last will and testament
that decedent executed one month before his death, he gave
$5,000 to each of three named grandnieces, and cut off his wife
with a life use of her minimum statutory share, plus $2,500, with
the principal to be paid to his surviving brothers and sisters and
the descendents of any predeceased brothers or sisters, upon
his wife’s death. Decedent bequeathed the other half of his
estate in equal shares to his surviving brothers and sisters and to
the descendant’s of any predeceased brother or sister. At the
time the decedent executed his will, he was under the belief that
his wife was unfaithful to him, which affected the dispositions he
made in his will. When decedent’s will was offered for probate,
his widow Florence, appellant, filed objections alleging that
decedent was not of sound mind when he executed his will. The
jury found decedent was not of soundind and made a decree
denying admittance of the will to probate. On appeal the decree
was reversed and probate was directed. Appellant appeals.
Issue. Whether the decedent had any reasonable basis for
believing that his wife was unfaithful to him?

Held. No. The order should be reversed and a new trial granted.
Decedent persistently told of his suspicions that his wife was
unfaithful to anyone who would listen. That such a belief was an
obsession with him was clearly established by a preponderance
of the evidence, and there was presented a question of fact as to
whether it affected the will he made shortly before his death.

Dissent. The order should be affirmed. Even assuming the proof 8. G.R. No. L-1787 August 27, 1948
demonstrates that the decedent’s belief that his wife was
unfaithful was completely groundless, it does not follow from Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
this fact that the decedent suffered from such as delusion as to vs.
classify him as lacking the capacity to make a will. The evidence AGUSTIN LIBORO, oppositor-appellant.
adduced failed to prove that the decedent was suffering from an
insane delusion or lacked testamentary capacity. Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.

Discussion. A will is bad when its dispository provisions were or

TUASON, J.:
might have been caused or affected by an insane delusion.
In the Court of First Instance of Batangas the appellant opposed
unsuccessfully the probate of what purports to be the last will
and testament (Exhibit A) of Don Sixto Lopez, who died at the
age of 83 in Balayan, Batangas, on March 3, 1947, almost six
months after the document in question was executed. In the
court below, the present appellant specified five grounds for his
opposition, to wit: (1) that the deceased never executed the
alleged will; (2) that his signature appearing in said will was a
forgery; (3) that at the time of the execution of the will, he was
wanting in testamentary as well as mental capacity due to
advanced age; (4) that, if he did ever execute said will, it was not
executed and attested as required by law, and one of the alleged
instrumental witnesses was incapacitated to act as such; and it
was procured by duress, influence of fear and threats and undue
and improper pressure and influence on the part of the
beneficiaries instituted therein, principally the testator's sister,
Clemencia Lopez, and the herein proponent, Jose S. Lopez; and
(5) that the signature of the testator was procured by fraud or
trick.

In this instance only one of these objections is reiterated,

formulated in these words: "That the court a quo erred in holding
that the document Exhibit "A" was executed in all particulars as
required by law." To this objection is added the alleged error of
the court "in allowing the petitioner to introduce evidence that
Exhibit "A" was written in a language known to the
decedent after petitioner rested his case and over the vigorous
objection of the oppositor.

The will in question comprises two pages, each of which is

written on one side of a separate sheet. The first sheet is not
paged either in letters or in Arabic numerals. This, the appellant
believes, is a fatal defect.

The purpose of the law in prescribing the paging of wills is guard

against fraud, and to afford means of preventing the substitution
or of defecting the loss of any of its pages. (Abangan vs.
Abangan, 40 Phil., 476.) In the present case, the omission to put
a page number on the first sheet, if that be necessary, is
supplied by other forms of identification more trustworthy than
the conventional numerical words or characters. The
unnumbered page is clearly identified as the first page by the
internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence,
the first and second lines on the second page are undeniably a
continuation of the last sentence of the testament, before the
attestation clause, which starts at the bottom of the preceding
page. Furthermore, the unnumbered page contains the caption
"TESTAMENTO," the invocation of the Almighty, and a recital
that the testator was in full use of his testamentary faculty, — all
of which, in the logical order of sequence, precede the direction
for the disposition of the marker's property. Again, as page two
contains only the two lines above mentioned, the attestation
clause, the mark of the testator and the signatures of the
witnesses, the other sheet can not by any possibility be taken for
other than page one. Abangan vs. Abangan, supra,
and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of
this issue.
Although not falling within the purview and scope of the first
assignment of error, the matter of the credibility of the witnesses
is assailed under this heading. On the merits we do not believe
that the appellant's contention deserves serious consideration.
Such contradictions in the testimony of the instrumental
witnesses as are set out in the appellant's brief are incidents not
all of which every one of the witnesses can be supposed to have
perceived, or to recall in the same order in which they occurred.
Everyday life and the result of investigations made in
the field of experimental psychology show that the
contradictions of witnesses generally occur in the
details of a certain incident, after a long series of
questioning, and far from being an evidence of
falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are
impressed in like manner, it is but natural that in relating
their impressions they should not agree in the minor
details; hence, the contradictions in their testimony.
(People vs. Limbo, 49 Phil., 99.)
In this jurisdiction this rule has been followed. After the parties
have produced their respective direct proofs, they are allowed to
offer rebutting evidence only, but, it has been held, the court, for
good reasons, in the furtherance of justice, may permit them to
offer evidence upon their original case, and its ruling will not be
disturbed in the appellate court where no abuse of discretion
appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs.
Alviar, 36 Phil., 804.) So, generally, additional evidence is
allowed when it is newly discovered, or where it has been
omitted through inadvertence or mistake, or where the purpose
of the evidence is to the evidence is to correct evidence
previously offered. (I Moran's Comments on the Rules of Court,
2d ed., 545; 64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of Spanish had not been
deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant
impugns the will for its silence on the testator's understanding of
the language used in the testament. There is no statutory
requirement that such knowledge be expressly stated in the will
itself. It is a matter that may be established by proof aliunde. This
Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in
which the probate of a will written in Tagalog was ordered
although it did not say that the testator knew that idiom. In fact,
there was not even extraneous proof on the subject other than
the fact that the testator resided in a Tagalog region, from which
the court said "a presumption arises that said Maria Tapia knew
the Tagalog dialect.
The order of the lower court ordering the probate of the last will
and testament of Don Sixto Lopez is affirmed, with costs.

The testator affixed his thumbmark to the instrument instead of

signing his name. The reason for this was that the testator was
suffering from "partial paralysis." While another in testator's place
might have directed someone else to sign for him, as appellant
contends should have been done, there is nothing curious or
suspicious in the fact that the testator chose the use of mark as
the means of authenticating his will. It was a matter of taste or
preference. Both ways are good. A statute requiring a will to be
"signed" is satisfied if the signature is made by the testator's
mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L.,
117.)

With reference to the second assignment of error, we do not

share the opinion that the trial court communicated an abuse of
discretion in allowing the appellant to offer evidence to prove
knowledge of Spanish by the testator, the language in which the
will is drawn, after the petitioner had rested his case and after
the opponent had moved for dismissal of the petition on the
ground of insufficiency of evidence. It is within the discretion of
the court whether or not to admit further evidence after the party
offering the evidence has rested, and this discretion will not be
reviewed except where it has clearly been abused. (64 C. J.,
160.) More, it is within the sound discretion of the court whether
or not it will allow the case to be reopened for the further
introduction of evidence after a motion or request for a nonsuit,
or a demurrer to the evidence, and the case may be reopened
after the court has announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it or has denied the
same, or after the motion has been granted, if the order has not
been written, or entered upon the minutes or signed. (64 C. J.,
164.)
9. 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.
10. In the Matter of the summary settlement of the Estate of the
deceased
ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga
City admitting to probate the will of one Anacleta Abellana. The case
was originally appealed to the Court of Appeals where the following
assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding
that the supposed testament, Exh. "A", was signed in accordance with
law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said
court has certified the case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"),
which is sought to be probated, is written in the Spanish language and
consists of two (2) typewritten pages (pages 4 and 5 of the record)
double space. The first page is signed by Juan Bello and under his
name appears typewritten "Por la testadora Anacleta Abellana,
residence Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page appears the signature of three
(3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael
Ignacio, at the bottom of which appears the signature of T. de los
Santos and below his signature is his official designation as the notary
public who notarized the said testament. On the first page on the left
margin of the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the last page of
said last Will and Testament, also appears the signature of the three (3)
instrumental witnesses and on that second page on the left margin
appears the signature of Juan Bello under whose name appears
handwritten the following phrase, "Por la Testadora Anacleta
Abellana'. The will is duly acknowledged before Notary Public Attorney
Timoteo de los Santos. (Emphasis supplied)
The appeal squarely presents the following issue: Does the signature of
Dr. Juan A. Abello above the typewritten statement "Por la Testadora
Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the
requirements of law prescribing the manner in which a will shall be
executed?
The present law, Article 805 of the Civil Code, in part provides as
follows:
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 witness in the
presence of the testator and of one another. (Emphasis supplied.)
The clause "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," is practically the same as the
provisions of Section 618 of the Code of Civil Procedure (Act No. 190)
which reads as follows:
No will, except as provided in the preceding section shall be valid to
pass any estate, real or personal, nor charge or affect the same, unless
it be in writing and signed by the testator, or by the testator's name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other. . . .
(Emphasis supplied).
Note that the old law as well as the new require that the testator
himself sign the will, or if he cannot do so, the testator's name must be
written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex Parte
Pedro Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of
Civil Procedure that where the testator does not know how, or is
unable, to sign, it will not be sufficient that one of the attesting
witnesses signs the will at the testator's request, the notary certifying
thereto as provided in Article 695 of the Civil Code, which, in this
respect, was modified by section 618 above referred to, but it is
necessary that the testator's name be written by the person signing in
his stead in the place where he could have signed if he knew how or
was able to do so, and this in the testator's presence and by his
express direction; so that a will signed in a manner different than that
prescribed by law shall not be valid and will not be allowed to be
probated.

Where a testator does not know how, or is unable for any reason, to
sign the will himself, it shall be signed in the following manner:

John Doe by the testator, Richard Doe; or in this form: "By the testator,
John Doe, Richard Doe." All this must be written by the witness signing
at the request of the testator.

Therefore, under the law now in force, the witness Naval A. Vidal
should have written at the bottom of the will the full name of the
testator and his own name in one forms given above. He did not do so,
however, and this is failure to comply with the law is a substantial
defect which affects the validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it.

The same ruling was laid down in the case of Cuison vs. Concepcion, 5
Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held
that the important thing is that it clearly appears that the name of the
testatrix was signed at her express direction; it is unimportant whether
the person who writes the name of the testatrix signs his own or not.
Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13
Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does
not appear written under the will by said Abellana herself, or by Dr.
Juan Abello. There is, therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or
that his name be affixed thereto by some other person in his presence
and by his express direction.

It appearing that the above provision of the law has not been complied
with, we are constrained to declare that the said will of the deceased
Anacleta Abellana may not be admitted to probate.

WHEREFORE, the decision appealed from is hereby set aside and the
petition for the probate of the will denied. With costs against
petitioner.
 (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.
11. 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:
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.

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.

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;
 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

12. 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.
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.

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:
13. In Re Estate of Weber
In the Matter of the Estate of Henry H. Weber, Deceased. BEN HEER,
Executor of the Estate of Henry H. Weber, Deceased, Appellee, v. R.R.
BENNETT, Guardian of the Person and Estate of Rosa Weber, an
Incompetent Person, et al., Appellant.No. 43,376Supreme Court of
Kansas.Opinion filed December 7, 1963.
Charles D. Green, of Manhattan, argued the cause, and Richard C.
Wells and Charles S. Arthur, of Manhattan, were with him on the briefs
for the appellant.
Richard D. Rogers, of Manhattan, argued the cause, and John F. Stites,
of Manhattan, C.L. Hoover and Robert A. Schermerhorn, of Junction
City, were with him on the brief for the appellee.
The opinion of the court was delivered by
WERTZ, J.:
This was a proceeding to admit a document to probate as the last will
and testament of Henry H. Weber. The facts are undisputed and are
substantially as follows:
Henry H. Weber, the decedent, died November 21, 1960. At the time
of his death he was seventy-three years of age, lawfully married to
Rosa Weber, who had been adjudicated an incompetent person, and
who, on the above-mentioned date, was, and had been for several
years prior thereto, hospitalized at Topeka State Hospital.
Shortly after 12:00 p.m. on November 16, 1960, Henry Weber went to
the home of Ben Heer in Riley. Mr. Heer was not at home but his wife
was, and Mr. Weber advised Mrs. Heer he was ill and needed help to
get into the hospital. He stated he wished to go to the Riley County
Hospital in Manhattan. Mrs. Heer telephoned the hospital and made
arrangements to have Mr. Weber admitted.
*259 After arrangements were completed Mrs. Heer offered to put Mr.
Weber's clothes in a suitcase and otherwise help him prepare to go to
the hospital. Next, she called a neighbor who in turn went to where
Mr. Heer was working, which was about four miles from Riley, and told
Mr. Heer that Henry Weber was at Heer's home and wanted to see
him. Heer went immediately to his home. When he arrived Weber
advised Heer of his illness and of his desire to make a will leaving one-
half of his estate to his wife and one-half to his niece, Lillian Price. Heer
and Weber then decided to go to see Harold Holmes, president of the
Riley State Bank, to have the will prepared.
The distance from the Heer residence to the bank was three or four
blocks. The two men drove to the bank, each in his own automobile.
Mr. Weber parked his car at an angle against the curb of the street and
beneath a window on the north side of the bank and asked Mr. Heer,
who had parked on the east side and had come over to the Weber car,
to see if Mr. Holmes would come out to the car and talk to him. Weber
remained in his car and Heer went into the bank and talked to Holmes
who then came out and got into the front seat of Weber's car. At
Weber's request Heer got into the back seat of the automobile. It was
a chilly November day and the car windows were kept closed. Weber
explained to Holmes how he desired to dispose of his property, one-
half to be left to his wife and one-half to his niece, and that he wanted
Heer to be his executor. Holmes took notes as Weber talked. After
Holmes concluded taking notes he went back into the bank and
prepared the purported will on a printed form captioned "Last Will and
Testament" by filling in a portion of the blank spaces thereof with the
information contained in the notes he had made, except that he failed
to mention Weber's wife in the purported will.
The third paragraph of the will reads:
"Third. I give, devise and bequeath to My Niece, Lillian Price of
Junction City, Kansas My share of land situated in the Eureka Valley in
Ogden and Manhattan Townships also My share of all Real estate
located in Madison Township, Riley County Kansas and I do devise and
bequeath all the rest and residue of my estate both real, personal and
mixed to My Niece Lillian Price, any and all, money, stocks or Bonds,
any and all personal property which I may possess at my death,
whatsoever."
The italicized portion of the above quotation was that part typed from
Holmes' notes onto the printed will form.
While Holmes was inside the bank he directed three bank employees,
*260 Mr. and Mrs. Chamberlain and Mrs. Carlson, to go to and stand in
front of a closed window in the bank in order that they could serve as
witnesses to the signing of the will. The window was approximately
eight to ten feet from where Weber was sitting in his closed
automobile.
About fifteen minutes later Holmes returned to Weber's automobile
with a clipboard to which the purported will was fastened. Holmes re-
entered Weber's automobile and handed the document to him. Weber
read the document, Holmes and Heer being in the automobile at this
time.
Holmes and Weber having previously discussed the need for
witnesses, Holmes directed Weber's attention to the window of the
bank where the above-named bank employees were standing. By
waving to them, Weber indicated he saw them, and they in turn waved
back to him. After looking the purported will over, Weber placed the
clipboard on the steering wheel of his automobile where it could be
seen through the closed windows by the witnesses, and signed the
document.
Holmes then returned to the bank with the document, and there,
standing before the bank window as heretofore described, the
witnesses signed their names. The table upon which the signing
occurred was against the window but the table top was a foot to a foot
and a half beneath the window sill. Hence Weber could see the
witnesses in the window as they signed but could not see the pen or
the purported will on the table at the time of signing. Only that portion
of the body of each witness in the window could be seen by him.
After the three witnesses signed the purported will Holmes took it
back out to Weber's automobile, showed it to him, Weber looked it
over, and at Weber's request Holmes retained the document at the
bank.
The record disclosed that all three witnesses were acquainted with
Weber prior to November 16, 1960, and knew his signature when they
saw it. They recognized Weber's signature on the purported will.
However, none of the witnesses could read any of the writing or
printing on the document while it was being signed by Weber in his
automobile.
It is noted from the record that at no time was there any type of
communication between Weber and the witnesses other than their
waving to one another; no verbal communication whatsoever. Weber
never entered the bank building during this period of time *261 and
heard nothing of what was said inside the building; and even more
important, the witnesses never left the building, so they couldn't
possibly have heard any of the conversation that occurred in Weber's
automobile.
The transaction at the bank took approximately one to one and a half
hours to complete. Weber then proceeded to drive his automobile,
unaccompanied, approximately twenty miles to the Riley County
Hospital where the earlier admittance arrangements had been made,
and it was there on November 21, 1960, just five days later, he died.
At the conclusion of the evidence the trial court made findings of fact
and concluded as a matter of law that the will was duly executed by
the decedent and attested by two competent witnesses in conformity
with the provisions of G.S. 1949, 59-606; that it was a valid will of the
decedent and should be admitted to probate as the last will and
testament of Henry H. Weber, deceased; and entered judgment
accordingly.
From an order overruling his motion for a new trial, R.R. Bennett,
guardian of the person and estate of Rosa Weber, an incompetent
person, has appealed.
The determinative question in this case is whether or not the
purported will was duly executed and attested in accordance with the
provisions of G.S. 1949, 59-606, which reads:
"Every will, except an oral will as provided in section 44 [59-608], shall
be in writing, and signed at the end thereof by the party making the
same, or by some other person in his presence and by his express
direction, and shall be attested and subscribed in the presence of such
party by two or more competent witnesses, who saw the testator
subscribe or heard him acknowledge the same."
The mentioned statute, insofar as is pertinent to the issues involved,
contains the following elements: (1) The will must be attested and
subscribed by two competent witnesses in the presence of the
testator; (2) the witnesses must have either seen the testator
subscribe or have heard him acknowledge the will. It is apparent that
the statute clearly requires two essential factors: (1) presence, and (2)
sight or hearing. There must be presence and sight or presence and
hearing. Presence only, sight only, hearing only, or sight and hearing
only are not sufficient. It is quite possible that one could see a testator
subscribe to his will, i.e., by television, or one could hear the testator
acknowledge his will, i.e., by telephone, but in either instance the
witnesses would not be in the presence of the testator as
contemplated by our statute. Conversely, one could *262 be in the
testator's presence and yet not see him sign or hear him acknowledge
his will. The witnessing of a will is a matter of great importance and
solemnity, and this is especially so because dispute about it does not
arise until the testator's lips are sealed. (Rice v. Monroe, 108 Kan. 526,
527, 196 Pac. 756.)
In In re Estate of Bond, 159 Kan. 249, 252, 153 P.2d 912, we stated:
"The fact is that aside from an oral will, as provided in G.S. 1943 Supp.,
59-608 there is only one way to make a will in Kansas and that is by
signing in the presence of two witnesses who saw the testator sign or
heard him acknowledge it."
In Fuller v. Williams, 125 Kan. 154, 163, 264 Pac. 77, this court stated:
"One who attests and subscribes a will as a witness should do so with
the understanding that he is competent to testify on the probate of
the will that the testator had mental capacity to make a will and was
not under restraint or undue influence. (Lawrie v. Lawrie, 39 Kan. 480,
18 Pac. 499; Hospital Co. v. Hale, 69 Kan. 616, 619, 77 Pac. 537;
McConnell v. Keir, 76 Kan. 527, 531, 92 Pac. 540.) The attesting
witnesses to a will must not only witness the signing or publishing of it
by the testator, but it is also their duty to satisfy themselves that the
testator is of sound and disposing mind and memory and capable of
executing a will. (Smith et al. v. Young et al., 134 Miss. 738; In re Swan's
Estate, 51 Utah, 410.) `A witness to a will must ... satisfy himself ... of
his (the testator's) testamentary capacity.' (40 Cyc. 1110; Dunkeson v.
Williams, 242 S.W. 653 [Mo.]; Schouler on Wills, 6th ed., §§ 229, 514;
Page on Wills, 2d ed., § 332; and see cases collected in annotation 35
A.L.R. 79.) This duty necessarily requires that the attesting witnesses to
a will should know and understand that the instrument they are
signing as witnesses is a will, and they should do so prepared to testify
to the testamentary capacity of the testator, and that he is free from
restraint and undue influence. "We are aware there is a line of
authorities to the effect that a witness to a will need not know
whether he is witnessing a will or some other instrument, but we do
not regard such authorities as being in accord with the duties required
by an attesting and subscribing witness to a will under our statute, in
accordance with the decision of our court."
In In re Estate of Bond, supra, it was stated that we prefer the strict
construction of the statute to one which would tend to break down
the formalities with which our legislature has seen fit to cloak the
passing of property by devise. This strict construction rule was
reaffirmed in the case of In re Estate of Davis, 168 Kan. 314, 322, 212
P.2d 343. It is possible that at times an honest attempt to execute a last
will and testament is defeated by the failure to include some one or
more of the statutory requirements. *263 However, it is far more
important that this should happen under a proper construction of the
statute than that the individual case should be permitted to weaken
the legislative mandate calculated to protect testators generally from
fraud, duress, bad faith, overreaching, or undue influence in the
making of their wills. The right to make a testamentary disposition of
property is wholly statutory and the testator's intent to execute a valid
will is not by itself sufficient to give validity to an instrument not
executed in accordance with the statutory requirements.
communication whatsoever between Weber and themselves. There is
nothing in the record to show that the witnesses read the provisions of
the purported will but only knew Weber's signature appeared thereon.
Appellee seems to place much stress upon conscious presence and
substantial compliance. However, where the execution of a will in
testator's presence is at issue, neither words nor intentions suffice. The
rule is that the burden of proof rests upon proponent of a will to
establish that the will was executed according to the provisions of the
statute. To hold that the requirements of the statute were complied
with in the instant case would subvert the purpose and intent of the
statute and would amount to a disregard of its substance. Failure to
halt here under the facts in the instant case would permit substantial
compliance and conscious presence to run wild so that if in any given
case the intention of the testator is ascertained his will may be
sustained. Application of the rule of substantial compliance or
conscious presence under the facts in the instant case is to ignore the
statute intended to prevent fraud.

The proponent of the will (the executor) in his brief invites our
attention to Kitchell v. Bridgeman, 126 Kan. 145, 267 Pac. 26. However, While it is unfortunate in this case that Lillian Price must suffer from
in that case the will was executed by the testator in his room before the lack of legal ability and understanding of a scrivener who sought to
two witnesses who saw him sign the will. In re Estate of Davis, 168 perform a legal act of great importance and solemnity, that of drafting
Kan. 314, 212 P.2d 343, is cited to us. In this case the testator signed in a will and purporting to supervise the execution thereof, it is better
the presence of one witness and subsequently the second witness was that she be denied her would-be beneficial interests in the will than to
brought into the room where the testator acknowledged to her and open the door and set a pattern, by those not versed in the law of wills
the witness signed in the testator's presence. The proponent also cites and in utter disregard to the plain provisions of the statute, for the
Humphrey v. Wallace, 169 Kan. 58, 216 P.2d 781, where the witnesses drafting of future wills so as to permit fraud, undue influence,
did not see the testatrix sign but did in their presence hear her overreaching and bad faith which might in some other instances be
acknowledge her signature and that it was her last will and testament. practiced upon the weak, aged or infirm testators in the disposition of
Attention is invited to Moore v. Glover, 196 Okla. 177, 163 P.2d 1003, their worldly goods.
where the testatrix handed the witnesses the will and stated that it
was her will and requested the witnesses to sign as witnesses to her
will. The witnesses clearly heard testatrix acknowledge it as her will,
and after they signed as witnesses returned it to her. None of these
cases supports the very liberal construction which the proponent We are of the opinion that the facts of the instant case disclose the
wishes to place upon the statute under the facts of the instant case. proximity between the witnesses and the testator was not sufficient
*265 to establish "presence," and, therefore, the will does not meet
the necessary requirements of G.S. 1949, 59-606, authorizing its
admission to probate as the last will and testament of Henry H. Weber,
deceased. The judgment of the trial court is reversed and the case is
The statute was designed to require the attestation to be made in the remanded with instructions to set aside the judgment admitting the
presence of the testator so as to prevent the substitution of a will to probate.
surreptitious will. The testator must be able to see the witnesses attest
the will; or, to speak with more precision, their relative position to him
It is so ordered.
at the time they are subscribing their names as witnesses must be such
that he may see them, if he thinks it proper to do so, and satisfy
himself by actual view that they are witnessing the very paper he
signed to be his last will. In the instant case there is evidence that
Weber told Mr. Heer and Banker Holmes that he wanted one-half of
his property to go to his wife and one-half to his niece. The document,
as prepared, failed to mention the wife in any manner. It is further
noted that Holmes took some time *264 in preparing the purported
will, placed it upon a clipboard and then stationed three of his
employees at the window and had them remain there while he took
the instrument through the door and into the closed car where the
witnesses saw Weber sign a paper, or document, which Holmes
advised the witnesses was Weber's will. A statement by the person
who supervises the execution of the document that it is the testator's
will and the like does not amount to an acknowledgment by testator if
he does not hear such statement. (2 Bowe-Parker: Page on Wills, §
19.115, p. 224.) The witnesses testified that there was no
14. YAP TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.

Chicote and Miranda for appellants.

O'Brien and DeWitt for appellee.

JOHNSON, J.:

It appears from the record that on the 23d day of August, 1909, one
Perfecto Gabriel, representing the petitioner, Yap Tua, presented a
petition in the Court of First Instance of the city of Manila, asking that
the will of Tomasa Elizaga Yap Caong be admitted to probate, as the
last will and testament of Tomasa Elizaga Yap Caong, deceased. It
appears that the said Tomasa Elizaga Yap Caong died in the city of
Manila on the 11th day of August, 1909. Accompanying said petition
and attached thereto was the alleged will of the deceased. It appears
that the will was signed by the deceased, as well as Anselmo Zacarias,
Severo Tabora, and Timoteo Paez.

Said petition, after due notice was given, was brought on for hearing
on the 18th day of September, 1909. Timoteo Paez declared that he
was 48 years of age; that he had known the said Tomasa Elizaga Yap
Caong; that she had died on the 11th day of August, 1909; that before
her death she had executed a last will and testament; that he was
present at the time of the execution of the same; that he had signed
the will as a witness; that Anselmo Zacarias and Severo Tabora had
also signed said will as witnesses and that they had signed the will in
the presence of the deceased.

Pablo Agustin also declared as a witness and said that he was 40 years
of age; that he knew Tomasa Elizaga Yap Caong during her lifetime;
that she died on the 11th day of August, 1909, in the city of Manila;
that before her death she had executed a last will and testament; that
he was present at the time said last will was executed; that there were
also present Timoteo Paez and Severo Tabora and a person called
Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the
presence of the witnesses; that he had seen her sign the will with his
own eyes; that the witnesses had signed the will in the presence of the
said Tomasa Elizaga Yap Caong and in the presence of each other; that
the said Tomasa Elizaga Yap Caong signed the will voluntarily, and in his
judgment, she was in the possession of her faculties; that there were
no threats or intimidation used to induce her to sign the will; that she
signed it voluntarily.

No further witnesses were called and there was no further opposition

presented to the legalization of the said will.

After hearing the foregoing witnesses, the Honorable A. S. Crossfield,

judge, on the 29th day of September, 1909, ordered that the last will
and testament of Tomasa Elizaga Yap Caong be allowed and admitted
to probate. The will was attached to the record and marked Exhibit A.
The court further ordered that one Yap Tua be appointed as executor
of the will, upon the giving of a bond, the amount of which was to be
fixed later.

From the record it appears that no further proceedings were had until
the 28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared
and presented a petition, alleging that they were interested in the
matters of the said will and desired to intervene and asked that a
guardian ad litem be appointed to represent them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as
guardian ad litem of said parties. Gabriel La O accepted said
appointment, took the oath of office and entered upon the
performance of his duties as guardian ad litem of said parties. On the
2d day of March, 1910, the said Gabriel La O appeared in court and
presented a motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to
probate by order of the court on the 29th day of September, 1909, was
null, for the following reasons:
(a) Because the same had not been authorized nor signed by the
witnesses as the law prescribes.
(b) Because at the time of the execution of the will, the said Tomasa
Elizaga Yap Caong was not then mentally capacitated to execute the
same, due to her sickness.
(c) Because her signature to the will had been obtained through fraud
and illegal influence upon the part of persons who were to receive a
benefit from the same, and because the said Tomasa Elizaga Yap Caong
had no intention of executing the same.
Second. That before the execution of the said will, which they alleged
to be null, the said Tomasa Elizaga Yap Caong had executed another
will, with all the formalities required by law, upon the 6th day of
August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that,
even though they had been negligent in presenting their opposition to
the legalization of the will, said negligence was excusable, on account
of their age.
Upon the foregoing facts the court was requested to annul and set
aside the order of the 29th day of September, 1909, and to grant to
said minors an opportunity to present new proof relating to the due
execution of said will. Said petition was based upon the provisions of
section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in
their petition for a new trial, attached to said petition the alleged will
of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the
affidavits of Severo Tabora, Clotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion
for a rehearing, the Honorable A. S. Crossfield, judge, granted said
motion and ordered that the rehearing should take place upon the
18th day of March, 1910, and directed that notice should be given to
the petitioners of said rehearing and to all other persons interested in
the will. At the rehearing a number of witnesses were examined.
It will be remembered that one of the grounds upon which the new
trial was requested was that the deceased, Tomasa Elizaga Yap Caong,
had not signed the will (Exhibit A) of the 11th of August, 1909; that in
support of that allegation, the protestants, during the rehearing,
presented a witness called Tomas Puzon. Puzon testified that he was a
professor and an expert in handwriting, and upon being shown the will
(of August 11, 1909) Exhibit A, testified that the name and surname on
Exhibit A, in his judgment were written by two different hands, though
the given name is the same as that upon Exhibit 1 (the will of August 6,
1909), because he found in the name "Tomasa" on Exhibit A a
similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing
the surname on Exhibit A with the surname on Exhibit 1 he found that
the character of the writing was thoroughly distinguished and different
by the tracing and by the direction of the letters in the said two
exhibits; that from his experience and observation he believed that the
name "Tomasa" and "Yap Caong," appearing in the signature on Exhibit
A were written by different person.
Puzon, being cross-examined with reference to his capacity as an
expert in handwriting, testified that while he was a student in the
Ateneo de Manila, he had studied penmanship; that he could not tell
exactly when that was, except that he had concluded his course in the
year 1882; that since that time he had been a telegraph operator for
seventeen years and that he had acted as an expert in hand- writing in
the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified
that he had drawn the will of the 6th of August, 1909, at the request of
Tomasa Elizaga Yap Caong; that it was drawn in accordance with her
request and under her directions; that she had signed it; that the same
had been signed by three witnesses in her presence and in the
presence of each other; that the will was written in her house; that she
was sick and was lying in her bed, but that she sat up to sign the will;
that she signed the will with great difficulty; that she was signed in her
right mind.
The said Severo Tabora was also called as a witness again during the
rehearing. He testified that he knew Tomasa Elizaga Yap Caong during
her lifetime; that she was dead; that his signature as a witness to
Exhibit A (the will of August 11, 1909) was placed there by him; that
the deceased, Tomasa Elizaga Yap Caong, became familiar with the
contents of the will because she signed it before he (the witness) did;
that he did not know whether anybody there told her to sign the will
or not; that he signed two bills; that he did not know La O; that he did
not believe that Tomasa had signed the will (Exhibit A) before he
arrived at the house; that he was not sure that he had seen Tomasa
Elizaga Yap Caong sign Exhibit A because there were many people and
there was a screen at the door and he could not see; that he was
called a a witness to sign the second will and was told by the people
there that it was the same as the first; that the will (Exhibit A) was on a
table, far from the patient, in the house but outside the room where
the patient was; that the will was signed by Paez and himself; that
Anselmo Zacarias was there; that he was not sure whether Anselmo
Zacarias signed the will or not; that he was not sure whether Tomasa
Elizaga Yap Caong could see the table on which the will was written at
the time it was signed or not; that there were many people in the
house; that he remembered the names of Pedro and Lorenzo; that he
could not remember the names of any others; that the will remained
on the table after he signed it; that after he signed the will he went to
the room where Tomasa was lying; that the will was left on the table
outside; that Tomasa was very ill; that he heard the people asking
Tomasa to sign the will after he was (the witness) had signed it; that he
saw Paez sign the will, that he could not remember whether Anselmo
Zacarias had signed the will, because immediately after he and Paez
signed it, he left because he was hungry; that the place where the
table was located was in the same house, on the floor, about two steps
down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting
the allegation that Tomasa Elizaga Yap Caong was mentally
incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa
declared that he was a physician; that he knew Tomasa Elizaga Yap
Caong; that he had treated her in the month of August; that he visited
her first on the 8th day of August; that he visited her again on the 9th
and 10th days of August; that on the first visit he found the sick
woman completely weak — very weak from her sickness, in the third
stage of tuberculosis; that she was lying in bed; that on the first visit he
found her with but little sense, the second day also, and on the third
day she had lost all her intelligence; that she died on the 11th of
August; tat he was requested to issue the death certificate; that when
he asked her (Tomasa) whether she was feeling any pain or anything of
that kind, she did not answer at all; that she was in a condition of
stupor, induced, as he believed, by the stage of uraemia from which
she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was
also called as a witnesses during the rehearing. He testified that he
had known Tomasa Elizaga Yap Caong since he was a child; that
Tomasa was dead; that he had written the will exhibit A; that it was all
in his writing except the last part, which was written by Carlos Sobaco;
that he had written the will Exhibit A at the request of the uncle of
Tomasa; that Lorenzo, the brother of the deceased, was the one who
had instructed him as to the terms of the will ; that the deceased had
not spoken to him concerning the terms of the will; that the will was
written in the dining room of the residence of the deceased; that
Tomasa was in another room different from that in which the will was
written; that the will was not written in the presence of Tomasa; that
he signed the will as a witness in the room where Tomasa was lying;
that the other witnesses signed the will in the same room that when
he went into the room where the sick woman was (Tomasa Elizaga Yap
Caong) Lorenzo had the will in his hands; that when Lorenzo came to
the bed he showed the will to his sister (Tomasa) and requested her to
sign it; that she was lying stretched out on the bed and two women,
who were taking care of her, helped her to sit up, supporting her by
lacing their hands at her back; that when she started to write her
name, he withdrew from the bed on account of the best inside the
room; when he came back again to the sick bed the will was signed
and was again in the hands of Lorenzo; that he did not see Tomasa sign
the will because he withdrew from the room; that he did not know
whether Tomasa had been informed of the contents of the will or not;
he supposed she must have read it because Lorenzo turned the will
over to her; that when Lorenzo asked her to sign the will, he did not
know what she said — he could not hear her voice; that he did not
know whether the sick woman was him sign the will or not; that he
believed that Tomasa died the next day after the will had been signed;
that the other two witnesses, Timoteo Paez and Severo Tabora, had
signed the will in the room with the sick woman; that he saw them
sign the will and that they saw him sign it; that he was not sure
whether the testatrix could have seen them at the time they signed
the will or not; that there was a screen before the bed; that he did not
think that Lorenzo had been giving instructions as to the contents of
the will; that about ten or fifteen minutes elapsed from the time
Lorenzo handed the will to Tomasa before she started to sign it; that
the pen with which she signed the will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew
Tomasa Elizaga Yap Caong and that she was dead; that she had made
two wills; that the first one was written by La O and the second by
Zacarias; that he was present at the time Zacarias wrote the second
one; that he was present when the second will was taken to Tomasa
for signature; that Lorenzo had told Tomasa that the second will was
exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there;
that Zacarias was not there; that Paez and Tabora were there; that he
had told Tomasa that the second will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco were also
examined as witnesses. There is nothing in their testimony, however,
which in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she
was 19 years of age; that she knew Tomasa Elizaga Yap Caong during
her lifetime; that she lived in the house of Tomasa during the last week
of her illness; that Tomasa had made two wills; that she was present
when the second one was executed; that a lawyer had drawn the will
in the dining room and after it had been drawn and everything finished
, it was taken to where Doña Tomasa was, for her signature; that it was
taken to her by Anselmo Zacarias; that she was present at the time
Tomasa signed the will that there were many other people present
also; that she did not see Timoteo Paez there; that she saw Severo
Tabora; that Anselmo Zacarias was present; that she did not hear
Clotilde Mariano ask Tomasa to sign the will; that she did not hear
Lorenzo say to Tomasa that the second will was the same sa the first;
that Tomasa asked her to help her to sit up and to put a pillow to her
back when Zacarias gave her some paper or document and asked her
to sign it; that she saw Tomasa take hold of the pen and try to sign it
but she did not see the place she signed the document, for the reason
that she left the room; that she saw Tomasa sign the document but did
not see on what place on the document she signed; and that a notary
public came the next morning; that Tomasa was able to move about in
the bed; that she had seen Tomasa in the act of starting to write her
signature when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified
that he knew Tomasa Elizaga Yap Caong and knew that she had made a
will; that he saw the will at the time it was written; that he saw Tomasa
sign it on her head; that he did not hear Lorenzo ask Tomasa to sign
the will; that Lorenzo had handed the will to Tomasa to sign; that he
saw the witnesses sign the will on a table near the bed; that the table
was outside the curtain or screen and near the entrance to the room
where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he
knew Anselmo Zacarias and that Zacarias wrote the will of Tomasa
Elizaga Yap Caong; that Tomasa had given him instructions; that
Tomasa had said that she sign the will; that the will was on a table near
the bed of Tomasa; that Tomasa, from where she was lying in the bed,
could seethe table where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in
our opinion, however, it is necessary to quote from them for the
reason that their testimony in no way affects the preponderance of
proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in
an extended opinion, reached the conclusion that the last will and
testament of Tomasa Elizaga Yap Caong, which was attached to the
record and marked Exhibit A was the last will and testament of the said
Tomasa Elizaga Yap Caong and admitted it to probate and ordered that
the administrator therefore appointed should continue as such
administrator. From that order the protestants appealed to this court,
and made the following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was executed by
the deceased Tomasa Yap Caong, without the intervention of any
external influence on the part of other persons.
II. The court erred in declaring that the testator had clear knowledge
and knew what she was doing at the time of signing the will.
III. The court erred in declaring that the signature of the deceased
Tomasa Yap Caong in the first will, Exhibit 1, is identical with that which
appears in the second will, Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, was executed in
accordance with the law.
With reference to the first assignment of error, to wit, that undue
influence was brought to bear upon Tomasa Elizaga Yap Caong in the
execution of her will of August 11th, 1909 (Exhibit A), the lower court
found that no undue influence had been exercised over the mind of
the said Tomasa Elizaga Yap Caong. While it is true that some of the
witnesses testified that the brother of Tomasa, one Lorenzo, had
attempted to unduly influence her mind in the execution of he will,
upon the other hand, there were several witnesses who testified that
Lorenzo did not attempt, at the time of the execution of the will, to
influence her mind in any way. The lower court having had an
opportunity to see, to hear, and to note the witnesses during their
examination reached the conclusion that a preponderance of the
evidence showed that no undue influence had been used. we find no
good reason in the record for reversing his conclusions upon that
question.
With reference to the second assignment of error to wit, that Tomasa
Elizaga Yap Caong was not of sound mind and memory at the time of
the execution of the will, we find the same conflict in the declarations
of the witnesses which we found with reference to the undue
influence. While the testimony of Dr. Papa is very strong relating to the
mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
testimony related to a time perhaps twenty-four hours before the
execution of the will in question (Exhibit A). Several witnesses testified
that at the time the will was presented to her for her signature, she
was of sound mind and memory and asked for a pen and ink and kept
the will in her possession for ten or fifteen minutes and finally signed
it. The lower court found that there was a preponderance of evidence
sustaining the conclusion that Tomasa Elizaga Yap Caong was of sound
mind and memory and in the possession of her faculties at the time
she signed this will. In view of the conflict in the testimony of the
witnesses and the finding of the lower court, we do not feel justified in
reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower
court committed an error in declaring that the signature of Tomasa
Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is
identical with that which appears in the second will (August 11, 1909,
Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will
of August 6, 1909 (Exhibit 1), was not the question presented to the
court. The question presented was whether or not she had duly
executed the will of August 11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap
Caong did execute the will of August 6, 1909. Several witnesses
testified to that fact. The mere fact, however, that she executed a
former will is no proof that she did not execute a later will. She had a
perfect right, by will, to dispose of her property, in accordance with the
provisions of law, up to the very last of moment her life. She had a
perfect right to change, alter, modify or revoke any and all of her
former wills and to make a new one. Neither will the fact that the new
will fails to expressly revoke all former wills, in any way sustain the
charge that she did not make the new will.
Third. In said third assignment of error there is involved in the
statement that "The signature of Tomasa Elizaga Yap Caong, in her first
will (Exhibit 1) was not identical with that which appears in her second
will (Exhibit A)" the inference that she had not signed the second will
and all the argument of the appellants relating to said third assignment
of error is based upon the alleged fact that Tomasa Elizaga Yap Caong
did not sign Exhibit A. Several witnesses testified that they saw her
write the name "Tomasa." One of the witnesses testified that she had
written her full name. We are of the opinion, and we think the law
sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any
portion of her name tot he will, with the intention to sign the same,
that the will amount to a signature. It has been held time and time
again that one who makes a will may sign the same by using a mark,
the name having been written by others. If writing a mark simply upon
a will is sufficient indication of the intention of the person to make and
execute a will, then certainly the writing of a portion or all of her name
ought to be accepted as a clear indication of her intention to execute
the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr.,
504; Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400;
Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods
of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylvania State, 220
(6 L. R. A., 353), and cited by the appellees, which was known as
"Knox's Appeal." In this case one Harriett S. Knox died very suddenly
on the 17th of October, 1888, at the residence of her father. After her
death a paper was found in her room, wholly in her handwriting,
written with a lead pencil, upon three sides of an ordinary folded sheet
of note paper and bearing the signature simply of "Harriett." In this
paper the deceased attempted to make certain disposition of her
property. The will was presented for probate. The probation was
opposed upon the ground that the same did not contain the signature
of the deceased. That was the only question presented to the court,
whether the signature, in the form above indicated, was a sufficient
signature to constitute said paper the last will and testament of
Harriett S. Knox. It was admitted that the entire paper was in the
handwriting of the deceased. In deciding that question, Justice
Mitchell said:
The precise case of a signature by the first name only, does not appear
to have arisen either in England or the United States; but the principle
on which the decisions already referred to were based, especially
those in regard to signing by initials only, are equally applicable to the
present case, and additional force is given to them by the decisions as
to what constitutes a binding signature to a contract. (Palmer vs.
Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs.
Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.),
446.)
The man who cannot write and who is obliged to make his mark simply
therefor, upon the will, is held to "sign" as effectually as if he had
written his initials or his full name. It would seem to be sufficient,
under the law requiring a signature by the person making a will, to
make his mark, to place his initials or all or any part of his name
thereon. In the present case we think the proof shows, by a large
preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her
full name, did at least sign her given name "Tomasa," and that is
sufficient to satisfy the statute.
With reference to the fourth assignment of error, it may be said that
the argument which was preceded is sufficient to answer it also.
During the trial of the cause the protestants made a strong effort to
show that Tomasa Elizaga Yap Caong did not sign her name in the
presence of the witnesses and that they did not sign their names in
their presence nor in the presence of each other. Upon that question
there is considerable conflict of proof. An effort was made to show that
the will was signed by the witnesses in one room and by Tomasa in
another. A plan of the room or rooms in which the will was signed was
presented as proof and it was shown that there was but one room;
that one part of the room was one or two steps below the floor of the
other; that the table on which the witnesses signed the will was
located upon the lower floor of the room. It was also shown that from
the bed in which Tomasa was lying, it was possible for her to see the
table on which the witnesses signed the will. While the rule is absolute
that one who makes a will must sign the same in the presence of the
witnesses and that the witnesses must sign in the presence of each
other, as well as in the presence of the one making the will, yet,
nevertheless, the actual seeing of the signatures made is not
necessary. It is sufficient if the signatures are made where it is possible
for each of the necessary parties, if they desire to see, may see the
signatures placed upon the will.
In cases like the present where there is so much conflict in the proof, it
is very difficult for the courts to reach conclusions that are absolutely
free from doubt. Great weight must be given by appellate courts who
do not see or hear the witnesses, to the conclusions of the trial courts
who had that opportunity.
Upon a full consideration of the record, we find that a preponderance
of the proof shows that Tomasa Elizaga Yap Caong did execute, freely
and voluntarily, while she was in the right use of all her faculties, the
will dated August 11, 1909 (Exhibit A). Therefore the judgment of the
lower court admitting said will to probate is hereby affirmed with
costs.
15. Burns v. Adamson
Annotate this Case
854 S.W.2d 723 (1993)
313 Ark. 281
Larry BURNS, Executor of the Nettie Frost Estate, Appellant, v.
Bill ADAMSON, et al., Appellees.
No. 92-1341.
Supreme Court of Arkansas.
May 24, 1993.
Fletcher Long, Jr., Forrest City, for appellant.
George R. Wadley, Jr., Jonesboro, for appellees.
HAYS, Justice.
The question in this will contest is whether one of the two
attesting witnesses' signatures on a will satisfies the statutory
requirements of attestation.
On February 3, 1992, Nettie Frost signed a will in her hospital
room in Memphis, Tennessee. She died the following day.
Appellant, Larry Burns, nephew of Ms. Frost, filed a petition for
probate of the will as sole beneficiary. Other nephews and a
niece contested the will.
A hearing established that around noon February 3, Ms. Frost
asked a friend, Jewell Burns, to sign her will, which Ms. Burns
did. Ms. Burns signed in the presence of Ms. Frost but at that
time Ms. Frost had not yet signed the will, and did not sign it until
several hours later, out of the presence of Ms. Burns. Ms. Burns
testified unequivocally that Ms. Frost's signature was not on the
will at the time she signed as a witness, and that she did not see
Ms. Frost again before she died.
At approximately 5:00 p.m. the same day, Ms. Frost was visited
by Faye Burns, Larry's wife, and Ethel Pettus, a long time friend
of Ms. Frost. Ms. Frost then signed the will in the presence of
both of them and Ms. Pettus signed the will as a witness in the
presence of Ms. Frost. Faye Burns did not sign the will as a
witness. There is no dispute that Jewell Burns was not there at
the time Ms. Frost signed her name to the will, and Ms. Pettus
testified that when she signed the will, Jewell Burns's signature
was on it.
The trial court entered an order finding the will was not validly
executed in the presence of two persons and that the estate of
Nettie Frost should be administered according to the laws of
descent and distribution. Larry Burns brings this appeal
challenging the trial court's holding. We agree with the ruling of
the probate judge.
The statute setting out the requirements for proper execution of a
will provides:
Ark.Code Ann. § 28-25-103 (1987). Execution generally.
(a) The execution of a will, other than holographic, must be by
the signature of the testator and of at least two (2) witnesses. (b)
The testator shall declare to the attesting witnesses that the
instrument is his will and either: (1) Himself sign; or *724 (2)
Acknowledge his signature already made; or (3) Sign by mark,
his name being written near it and witnessed by a person who
writes his own name as witness to the signature; or (4) At his
discretion and in his presence have someone else sign his name
for him. The person so signing shall write his own name and
state that he signed the testator's name at the request of the
testator; and (5) In any of the above cases, the signature must
be at the end of the instrument and the act must be done in the
presence of two (2) or more attesting witnesses. (c) The attesting
witnesses must sign at the request and in the presence of the
testator.
The provision governing this case is Section (5), which provides
that the act of the testator signing must be done in the presence
of two or more attesting witnesses.
Clearly the statute was not complied with in this case and
appellant acknowledges that. He argues that because we have
accepted substantial compliance with this procedure in the past,
we should do so now.
While we have found substantial compliance in some situations,
we have never extended it to allow a witness to attest a will
before the testator signs it and who in fact never sees the
testator sign. Where substantial compliance has been found, it
was on circumstances much less substantive and material than
these. We have found substantial compliance with the
requirement that a signature be placed at the "end" of the will,
Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d
452 (1991); Weems, Administrator v. Smith, 218 Ark. 554, 237
S.W.2d 880 (1951). And we have applied it to the requirement
that the testator declare to the witnesses that this is his will, Faith
v. Singleton, 286 Ark. 403, 692 S.W.2d 239(1985); Green v.
Holland, 9 Ark.App. 233, 657 S.W.2d 572 (1983); and to the
requirement that the witnesses must sign at the request of the
testator, Hanel v. Springle, Adm'r, 237 Ark. 356, 372 S.W.2d
822 (1963).
Appellant cites Anthony v. College of the Ozarks, 207 Ark. 212,
180 S.W.2d 321 (1944), as controlling in this case. In Anthony,
one of the two witnesses' signatures was in question, that of L.M.
Guthrie. The testator had brought the will to Guthrie's office and
asked him to sign it as a witness. The two were well acquainted.
Guthrie testified as follows:
I did not read the instrument thus presented to me, but signed
same and then asked him if this was his will and he said that it
was. He did not sign the instrument in my presence. Nothing was
said at the time whether he had signed it, and nothing was said
about his signature. The [other witness] was not present when I
signed the instrument, and I was not present when he signed it, if
he did sign it, and did not see him sign it.
But, we know of no case which holds the will is valid where one
of the necessary witnesses attested the will before the testator
signed it and the attestation of the witness and signature of the
testator were at different times and places, so that the witness
did not see the testator sign or hear him acknowledge his
signature after signing. There are a number of cases on the
other hand, which expressly hold that under such circumstances
the will cannot stand. (Citations omitted). [Our emphasis.]
To the same effect, see the selected cases in Annotation, Validity
of Will as Affected by Fact that Witnesses Signed Before
Testator, 91 A.L.R.2d 737 (1963).
In sum, where the witness did not see the testatrix sign the will or
acknowledge it, there was a failure to follow the requirements of
§ 28-25-103 and the probate judge was correct in so ruling.
AFFIRMED.

The court noted that Guthrie did not say the testator's signature
was not on the instrument at the time he signed it and it would
presume the testator's name was on the instrument at the time
he gave it to Guthrie to sign.

When [the testator] presented the instrument to the witness,

Guthrie, it was for the purpose of securing Guthrie's signature as
a witness, not to the will, but as a witness to [the testator's]
signature on the will. When Guthrie signed the will as a witness
the testator told him the instrument was a will. It could not have
been a will without his signature being on it at that time, and
while the testator said nothing about his signature, the
presumption is, in the absence of proof to the contrary, that his
signature was on the will when he presented it to Guthrie. [Our
emphasis.]

Id. at 216, 180 S.W.2d 321.

This case is distinguishable from Anthony, where we could

indulge in the presumption that the testator's signature was on
the will, there being no evidence to the contrary. Here there is
clear evidence to the contrary and no presumption is
permissible. We believe this result is consistent with other
authorities on this issue.

*725 It is stated in 2 W. Bowe & D. Parker, Page on The Law of

Wills, § 19.138 (1960), that under the great weight of authority if
the subscribing witnesses sign their names to the will before the
testator signs, the will is not executed in compliance with the
statutes. And in In re Brasher's Estate, 54 Ariz. 430, 96 P.2d 747
(1940) it was pointed out there were two lines of authority on the
strictness of this ruleone being the English rule holding
unanimously the attestation of a will is not valid unless the
testator signs before the attesting witnesses and this is followed
by a number of American jurisdictions. The other line of cases
holds when the execution and attestation of a will occur at the
same time and place and form part of the same transaction, it is
immaterial that the witnesses subscribe before the testator. The
opinion reads:

16. 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

17. 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.

18. In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.

Filemon Sotto for appellants.

M. Jesus Cuenco for appellee.

AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted

to probate Ana Abangan's will executed July, 1916. From this decision
the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two
sheets, the first of which contains all of the disposition of the testatrix,
duly signed at the bottom by Martin Montalban (in the name and
under the direction of the testatrix) and by three witnesses. The
following sheet contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. Neither of these sheets is
signed on the left margin by the testatrix and the three witnesses, nor
numbered by letters; and these omissions, according to appellants'
contention, are defects whereby the probate of the will should have
been denied. We are of the opinion that the will was duly admitted to
probate.
In requiring that each and every sheet of the will should also be signed
on the left margin by the testator and three witnesses in the presence
of each other, Act No. 2645 (which is the one applicable in the case)
evidently has for its object (referring to the body of the will itself) to
avoid the substitution of any of said sheets, thereby changing the
testator's dispositions. But when these dispositions are wholly written
on only one sheet signed at the bottom by the testator and three
witnesses (as the instant case), their signatures on the left margin of
said sheet would be completely purposeless. In requiring this signature
on the margin, the statute took into consideration, undoubtedly, the
case of a will written on several sheets and must have referred to the
sheets which the testator and the witnesses do not have to sign at the
bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed twice.
We cannot attribute to the statute such an intention. As these
signatures must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at the bottom
of the sheet guaranties its authenticity, another signature on its left
margin would be unneccessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would add nothing.
We cannot assume that the statute regards of such importance the
place where the testator and the witnesses must sign on the sheet that
it would consider that their signatures written on the bottom do not
guaranty the authenticity of the sheet but, if repeated on the margin,
give sufficient security.
In requiring that each and every page of a will must be numbered
correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether any
sheet of the will has been removed. But, when all the dispositive parts
of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause.
Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet
are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies,
appertains only to the witnesses and not to the testator since the
latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two
sheets the first of which contains all the testamentary dispositions and
is signed at the bottom by the testator and three witnesses and the
second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or
be paged.
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a way as to
attain these primordal ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show
that the testarix knew the dialect in which the will is written. But the
circumstance appearing in the will itself that same was executed in the
city of Cebu and in the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the contrary, to
presume that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is
hereby affirmed with costs against the appellants. So ordered.
19. ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA,
RAYMUNDO A. DANILA, CONSOLACION SANTOS, MIGUEL G. DANILA,
AMOR DANILA, MOISES MARTINEZ, MIGUELA GAVINO, MELITON
NISTA, PRIMITIVA NISTA, HEIRS OF DANIEL NISTA, MOISES NISTA,
DOMINGO NISTA and ADELAIDA NISTA, petitioners,
vs.
COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and THE HEIRS
OF BUENAVENTURA GUERRA, respondents.
Ernesto C. Hidalgo for petitioners.
Romulo S. Brion & Florentino M. Poonin for private respondents.
GUERRERO, J.:
Appeal by way of certiorari of the decision 1 of the Court of Appeals in
CA-G.R. No. 49915-R, entitled "Adelaida Nista Petitioner-appellee,
versus Buenaventura Guerra, et al., Oppositors -Appellants, " denying
and disallowing the probate of the second last will and codicil of the
late Eugenia Danila previously probated by the Court of First Instance
of Laguna Branch III at San Pablo City.
The facts are rotated in the appealed decision. the pertinent portions
of which state:
It appears that on June 2, 1966, Adelaida Nista who claimed to be one
of the instituted heirs, filed a petition for the probate of the alleged
will and testament dated March 9, 1963 (Exhibit H) and codicil dated
April 18, 1963 (Exhibit L) of the late Eugenia Danila who died on May
21, 1966. The petitioner prayed that after due notice and proper
hearing, the alleged will and codicil be probates and allowed and that
she or any other person be appointed as administrator of the
testatrix's estate. She also prayed that in case no opposition thereto be
interposed and the value of the estate be less than P10,000.00, said
estate be summarily settled in accordance with the Rules.
Buenaventura and Marcelina (Martina) both surnamed Guerra filed an
opposition on July 18, 1966 and an amended opposition on August 19,
1967, to the petition alleging among others that they are the legally
adopted son and daughter of the late spouses Florentino Guerra and
Eugenia Danila (Exhibit 1); that the purported will and codicil subject
of the petition (Exhibits H and L) were procured through fraud and
undue influence; that the formalities requited by law for the execution
of a will and codicil have not been complied with as the same were not
properly attested to or executed and not expressing the free will and
deed of the purported testatrix; that the late Eugenia Danila had
already executed on November 5, 1951 her last will and testament
(Exhibit 3) which was duly probated (Exhibit 4) and not revoked or
annulled during the lifetime of the testatrix, and that the petitioner is
not competent and qualified to act as administration of the estate.
On November 4, 1968, the petitioner and the oppositors, assisted by
their respective counsels, entered into a Compromise Agreement with
the following terms and conditions, thus:
1. That oppositors Buenaventura Guerra and Marcelina (Martina)
Guerra are the legally adopted son and daughter, respectively, of the
deceased spouses, Florentino Guerra and Eugenia Manila;
2. That Florentino Guerra pre-deceased Eugenia Danila that Eugenia
Danila died on May 21, 1966, at San Pablo City, but during her lifetime,
she had already sold, donated or disposed of all her properties, some
of which to Marcelina Martina Guerra, as indicated and confirmed in
paragraph 13 of the Complaint in Civil Case No. SP620,
entitled Marcelina Guerra versus Adelaida Nista, et al., and Which We
hereby 'likewise admit and confirm;
3. That, however, with respect to the parcel of riceland covered by TCT
No. T-5559 of the Register of Deeds of San Pablo City, which oppositors
believe to be the estate left and undisposed of at the time of the death
of the owner thereof, Eugenia Danila it now appears that there is a
Deed of Donation covering the same together with another parcel of
coconut land situated at Barrio San Ignacio, San Pablo City, with an
area of 19,905 sq.m., and covered by Tax Declaration No. 31286,
executed by the late Eugenia Danila in favor of Adelaida Nista, as per
Doc. No. 406, Page No. 83, Series of 1966 under Notarial Register III of
Notary Public Pio Aquino of San Pablo city;
4. That inasmuch as the above-mentioned parcel of coconut and has
been earlier donated inter vivos and validly conveyed on November
15, 1965 by the late Eugenia Danila to Marcelina (Martina) Guerra as
shown by Doc. No. 237, Page No. 49, Series of 1965, under Notarial
Register XV of Notary Public Atty. Romulo S. Brion of San Pablo City,
the inclusion of said parcel in the subsequent donation to Adelaida
Nista is admittedly considered a mistake and of no force and effect and
will in no way prejudice the ownership and right of Marcelina Martina
Guerra over the said parcel; that as a matter of fact Whatever rights
and interests Adelaida Nista has or may still have thereon are already
considered waived and renounced in favor of Marcelina Martina
Guerra;
5. That in view of the fact that the riceland mentioned in paragraph 3
of the foregoing appears to have already been disposed of by Eugenia
Danila in favor of petitioner Adelaida Nista which the parties hereto do
not now contest, there is therefore no more estate left by the said
deceased Eugenia Danila to he disposed of by the will sought to be
probated in this proceedings; that consequently, and for the sake of
peace and harmony money among the relations and kins and adopted
children of the deceased Eugenia Danila and with the further aim of
settling differences among themselves, the will and codicil of Eugenia
Danila submitted to this Honorable Court by the petitioner for probate,
are considered abrogated and set aside;
6. That as the late Eugenia Danila has incurred debts to private persons
during her lifetime, which in addition to the burial and incidental
expenses amounts to SIX THOUSAND EIGHT HUNDRED PESOS
(P6,800.00) her adopted daughter, Marcelina (Martina) Guerra is now
determined to settle the same, but herein petitioner Adelaida Nista
hereby agrees to contribute to Marcelina (Martina) Guerra for the
settlement of the said indebtedness in the amount of THREE
THOUSAND FOUR HUNDRED PESOS (P3,400.00), Philippine Currency,
the same to be delivered by Adelaida Nista to Marcelina (Martina)
Guerra at the latter's residence at Rizal Avenue, San Pablo City, on or
about February 28, 1969;
7. That should there be any other property of the deceased Eugenia
Danila that may later on be discovered to be undisposed of as yet by
Eugenia Danila during her lifetime, the same should be considered as
exclusive property of her adopted children and heirs, Buenaventura
Guerra and Marcelina (Martina) Guerra and any right of the petitioner
and signatories hereto, with respect to said property or properties,
shall be deemed waived and renounced in favor of said Buenaventura
and Marcelina (Martina) Guerra; and
8. That with the exception of the foregoing agreement, parties hereto
waived and renounce further claim against each other, and the above-
entitled case. (Exh. 6)
This Agreement was approved by the lower court in a judgment
readings as follows:
WHEREFORE, said compromise agreement, being not contrary to
public policy, law and moral, the same is hereby approved and
judgment is hereby rendered in accordance with the terms and
conditions set forth in the above- quoted compromise agreement,
which is hereby made an integral part of the dispositive portion of this
decision, and the parties are strictly enjoined to comply with the same.
(Exh. 7)
On November 16, 1968, Rosario de Ramos, Miguel Danila Felix Danila
Miguel Gavino Amor Danila Consolacion Santos and Miguel Danila son
of the late Fortunato Danila filed a motion for leave to intervene as co-
petitioners alleging that being instituted heirs or devisees, they have
rights and interests to protect in the estate of the late Eugenia Danila
They also filed a reply partly admitting and denying the material
allegations in the opposition to the petition and alleging among other
things, that oppositors repudiated their institution as heirs and
executors when they failed to cause the recording in the Register of
Deeds of San Pablo City the will and testament dated November 5,
1951 (Exhibit 3) in accordance with the Rules and committed acts of
ingratitude when they abandoned the testatrix and denied her support
after they managed, through fraud and undue influence, to secure the
schedule of partition dated January 15, 1962. The Intervenors prayed
for the probate and/or allowance of the will and codicil (Exhibits H and
L), respectively and the appointment of any of them in as
administrator of said estate.
On December 6, 1968, the intervenors also filed a motion for new trial
and/or re-hearing and/or relief from judgment and to set aside the
judgment based on compromise dated November 5, 1968. The
oppositors interposed an opposition to the motion to which the
intervenors filed their reply.
The lower court resolved the motions in an order the dispositive
portion reading, thus:
FOR ALL THE FOREGOING the Court hereby makes the following
dispositions —
(1) Movants Rosario de Ramos, Miguel C. Danila Miguela Gavino Amor
Danila Consolacion Santos, Miguel A. Danila and Raymundo Danila are
allowed and admitted to intervene to this proceeding as Party
Petitioners; and likewise admitted in their reply to the amended
opposition of November 11, 1968;
(2) The compromise agreement dated October 15, 1968 by and
between Petitioner Adelaida Nista and oppositors Buenaventura
Guerra and Marcelina Guerra Martina is disapproved, except as
regards their respective lawful rights in the subject estate; and,
accordingly, the judgment on compromise rendered by this Court on
November 5, 1968 is reconsidered and set aside; and
(3) The original Petition and amended opposition to probate of the
alleged will and codicil stand.
xxx xxx xxx
The lower court also denied the motion for the appointment of a
special administrator filed by the intervenors.
xxx xxx xxx
A motion for reconsideration of the foregoing order was filed by the
intervenors co-petitioners but the motion was denied.
xxx xxx xxx
On February 9, 1971, a motion for the substitution of Irene, Crispina,
Cristina Casiano, Edilberto Felisa, Guerra in place of their father, the
oppositor Buenaventura Guerra who died on January 23, 1971, was
filed and granted by the lower court.
After trial on the merits, the lower court rendered its decision dated
July 6, 1971 allowing the probate of the wilt In that decision, although
two of the attesting witness Odon Sarmiento and Rosendo Paz,
testified that they did not see the testatrix Eugenia Danila sign the will
but that the same was already signed by her when they affixed their
own signatures thereon, the trial court gave more weight and ment to
the .'straight-forward and candid" testimony of Atty. Ricardo Barcenas,
the Notary Public who assisted in the execution of the wilt that the
testatrix and the three (3) instrumental witnesses signed the will in the
presence of each other, and that with respect to the codicil the same
manner was likewise observed as corroborated to by the testimony of
another lawyer, Atty. Manuel Alvero who was also present during the
execution of the codicil.
The dispositive portion of the decision reads:
WHEREFORE, it appearing that the late Eugenia Danila had
testamentary capacity when she executed the will, Exh. H., and the
codicil Exh. L, and that said will and codicil were duly signed by her and
the three attesting witnesses and acknowledged before a Notary
Public in accordance with the formalities prescribed by law, the said
will and codicil are hereby declared probated. No evidence having
been adduced regarding the qualification and fitness of any of the
intervenors- co-petitioners to act as executors, the appointment of
executors of the will and codicil is held pending until after due hearing
on the matter.
SO ORDERED.
Oppositors Marcelina Guam and the heirs of Buenaventura Guam
appealed the foregoing decision to the Court of Appeals The latter
court, in its derision dated May 12, 1975 ruled that the lower court
acted correctly in setting aside its judgment approving the
Compromise Agreement and in allowing the intervenor petitioners to
participate in the instant probate proceedings; however, it disallowed
the probate of the will on the that the evidence failed to establish that
the testatrix Eugenia Danila signed her will in the presence of the
instrumental witness in accordance with Article 805 of the Civil Code,
as testified to by the two surviving instrumental witnesses.
In this present appeal petitioners vigorously insists on constitutional
grounds the nullity of the decision of respondent court but We deem it
needless to consider the same as it is not necessary in resolving this
appeal on the following assigned errors:
(A) THE COURT OF APPEALS ERRED GRAVELY IN NOT HAVING GIVEN
WEIGHT TO THE MANIFESTATION CLAUSES IN THE TESTAMENT AND
CODICIL ANNEX B (PETITION) AND INSTEAD IT GAVE CREDENCE TO THE
TESTIMONIES OR BIASED WITNESSES OVER THEIR OWN ATTESTATION
CLAUSES AND THE TESTIMONIAL EVIDENCE AND NOTARIAL
ACKNOWLEDGEMENT OF THE NOTARY PUBLIC; AND
(B) THAT THE COURT OF APPEALS ERRED IN HAVING DENIED THE
PROBATE OF THE WILL AND CODICIL DESPITE CONVINCING EVIDENCE
FOR THEIR ALLOWANCE.
We reverse the judgment of the Court of Appeals and restore the
decision of the trial court allowing probate of the will and codicil in
question.
The main point in controversy here is whether or not the last
testament and its accompanying codicil were executed in accordance
with the formalities of the law, considering the complicated
circumstances that two of the attesting witnesses testified against
their due execution while other non-subscribing witnesses testified to
the contrary.
Petitioners argue that the attestation clauses of the win and codicil
which were signed by the instrumental witnesses are admissions of
due execution of the deeds, thus, preventing the said witnesses from
prevaricating later on by testifying against due execution. Petitioners
further maintain that it is error for respondent court to give credence
to the testimony of the biased witnesses as against their own
attestation to the fact of due execution and over the testimonial
account of the Notary Public who was also present during the
execution and before whom right after, the deeds were acknowledged.
Private respondents, on the other hand reiterate in their contention
the declaration of the two surviving witnesses, Odon Sarmiento and
Rosendo Paz, that the win was not signed by the testatrix before their
presence, which is strengthened by two photographic evidence
showing only the two witnesses in the act of signing, there being no
picture of the same occasion showing the testatrix signing the will.
Respondent court holds the view that where there was an opportunity
to take pictures it is not understandable why pictures were taken of
the witnesses and not of the testatrix. It concludes that the absence of
the latter's picture to complete the evidence belies the testimony of
Atty. Barcenas that the testatrix and the witnesses did sign the will and
the codicil in the presence of each other.
The oppositors' argument is untenable. There is ample and satisfactory
evidence to convince us that the will and codicil were executed in
accordance with the formalities required by law. It appears positively
and convincingly that the documents were prepared by a lawyer, Atty.
Manuel Alvero The execution of the same was evidently supervised by
his associate, Atty. Ricardo Barcenas and before whom the deeds were
also acknowledged. The solemnity surrounding the execution of a will
is attended by some intricacies not usually within the comprehension
of an ordinary layman. The object is to close the door against bad faith
and fraud, to avoid substitution of the will and testament, and to
guarantee their truth and authenticity. 2 If there should be any stress
on the participation of lawyers in the execution of a wig, other than an
interested party, it cannot be less than the exercise of their primary
duty as members of the Bar to uphold the lofty purpose of the law.
There is no showing that the above-named lawyers had been remiss in
their sworn duty. Consequently, respondent court failed to consider
the presumption of ty in the execution of the questioned documents.
There were no incidents brought to the attention of the trial court to
arouse suspicion of anomaly. While the opposition alleged fraud and
undue influence, no evidence was presented to prove their
occurrence. There is no question that each and every page of the will
and codicil carry the authentic signatures of Eugenia Danila and the
three (3) attesting witnesses. Similarly, the attestation claim far from
being deficient, were properly signed by the attesting witnesses.
Neither is it disputed that these witnesses took turns in signing the will
and codicil in the presence of each other and the testatrix. Both
instruments were duly acknowledged before a Notary Public who was
all the time present during the execution.
The presumption of regularity can of course be overcome by clear and
convincing evidence to the contrary, but not easily by the mere
expediency of the negative testimony of Odon Sarmiento and Rosendo
Paz that they did not see the testatrix sign the will. A negative
testimony does not enjoy equal standing with a positive assertion, and
faced with the convincing appearance of the will, such negative
statement must be examined with extra care. For in this regard —
It has also been held that the condition and physical appearance of a
questioned document constitute a valuable factor which, if correctly
evaluated in the light of surrounding circumstances, may help in
determining whether it is genuine or forged. Subscribing witnesses
may forget or exaggerating what they really know, saw, heard or did;
they may be biased and, therefore, tell only half-truths to mislead the
court or favor one party to the prejudice of the others. This cannot be
said of the condition and Physical appearance of the questioned
document. Both, albeit silent, will reveal the naked truth, hiding
nothing, forgetting nothing, and exaggerating nothing. 3
Unlike other deeds, ordinary wills by necessity of law must contain an
attestation clause Which, significantly is a separate memorandum or
record of the facts surrounding that the conduct of execution. Once
signed by the attesting witnesses, it that compliance with the
indispensable legal formalities had been observed. This Court had
previously hold that the attestation clause basically contracts the
pretense of undue ex execution which later on may be made by the
attesting witnesses. 4 In the attestation clause, the witnesses do not
merely attest to the signature of the testatrix but also to the proper
execution of the will, and their signature following that of the testatrix
show that they have in fact at not only to the genuineness of the
testatrix's signature but also to the due execution of the will as
embodied in the attention clause. 5 By signing the wilt the witnesses
impliedly to the truth of the facts which admit to probate, including
the sufficiency of execution, the capacity of the testatrix, the absence
of undue influence, and the like. 6
In this jurisdiction, all the attesting witness to a will if available, must
be called to prove the wilt Under this circumstance, they become
"forced witnesses" " and their declaration derogatory to the probate of
the will need not bind the proponent hence, the latter may present
other proof of due exemption even if contrary to the testimony of or
all of the at, testing witness. 7 As a rule, if any or all of the submitting
witness testify against the due execution of the will, or do not
remember having attested to it, or are otherwise of doubtful ability,
the will may, nevertheless, be allowed if the court is satisfied from the
testimony of other witness and from all the evidence presented that
the will was executed and attested in the manner by law. 8 Accordingly,
although the subscribing witnesses to a contested will are the best
witness in connection with its due execution, to deserve full credit,
their testimony must be reasonable, and unbiased; if otherwise it may
be overcome by any competent evidence, direct or circubstantial. 9
In the case at bar, the s bear a disparity in the quality of the
testimonies of Odon Sarmiento and Rosendo Paz on one hand, and the
Notary Public, Atty. Ricardo A. Barcenas, on the other. The testimony of
Odon Sarmiento was contradicted by his own admission. Though his
admission to the effect that "when Eugenia Danila signed the
testament (he) and the two other attesting witnesses Rosendo Paz and
Calixto Azusada were present" (t.s.n., Feb. 12, 1970, p. 115) was made
extrajudicially, it was not squarely refuted when inquired upon during
the trial.
With respect to the testimony of Rosendo Paz, it had been refuted by
the declaration of Atty. Ricardo A. Barcenas. The records show that this
attesting witness was fetched by Felix Danila from his place of work in
order to act as witness to a wilt Rosendo Paz did not know what the
document he signed was all about. Although he performed his
function as an attesting witness, his participation was rather passive.
We do not expect, therefore, that his testimony, "half-hearted" as that
of Odon Sarmiento, be as candid and complete as one proceeding
from a keen mind fully attentive to the details of the execution of the
deeds. Quite differently, Atty. Ricardo A. Barcenas, more than a direct
witness himself, was Purposely there to oversee the accomplishment
of the will and codicil. His testimony is an account of what he actually
heard and saw during the conduct of his profession. There is no
evidence to show that this lawyer was motivated by any material
interest to take sides or that his statement is truth perverted.
It has been regarded that the function of the Notary Public is, among
others, to guard against any illegal or immoral arrangements in the
execution of a will. 10 In the absence of any showing of self-interest
that might possibly have warped his judgment and twisted his
declaration, the intervention of a Notary Public, in his professional
capacity, in the execution of a will deserves grave consideration. 11 An
appraise of a lawyer's participation has been succinctly stated by the
Court in Fernandez v. Tantoco, supra, this wise:
In weighing the testimony of the attesting witnesses to a will, his
statements of a competent attorney, who has been charged with the
responsibility of seeing to the proper execution of the instrument, is
entitled to greater weight than the testimony of a person casually
called to anticipate in the act, supposing of course that no motive is
revealed that should induce the attorney to prevaricate. The reason is
that the mind of the attorney being conversant of the instrument, is
more likely to become fixed on details, and he is more likely than other
persons to retain those incidents in his memory.

One final point, the absence of a photograph of the testator Eugenia

Danila in the act of signing her will. The fact that the only pictures
available are those which show the Witnesses signing the will in the
presence of the testatrix and of each other does not belie the
probability that the testatrix also signed the will before the presence of
the witnesses. We must stress that the pictures are worthy only of
what they show and prove and not of what they did not speak of
including the events they failed to capture. The probate of a will is a
proceeding not embued with adverse character, wherein courts should
relax the rules on evidence "to the end that nothing less than the best
evidence of which the matter is susceptible" should be presented to
the court before a reported will may be probated or denied probate. 12

We find here that the failure to imprint in photographs all the stages in
the execution of the win does not serve any persuasive effect nor have
any evidentiary value to prove that one vital and indispensable
requisite has not been acted on. Much less can it defeat, by any
ordinary or special reason, the presentation of other competent
evidence intended to confirm a fact otherwise existent but not
confirmed by the photographic evidence. The probate court having
satisfied itself that the win and codicil were executed in accordance
with the formalities required by law, and there being no indication of
abuse of discretion on its part, We find no error committed or any
exceptional circumstance warranting the subsequent reversal of its
decision allowing the probate of the deeds in question.

WHEREFORE, the decision of respondent Court of Appeals is hereby

reversed in so far its it disallowed the probate of the will and codicil.
With costs against respondents.

SO ORDERED.
 kaugalian at patakaran ng simbahang katoliko at
ang taga-pag-ingat (Executor) ng habiling ito ay
magtatayo ng bantayog upang silbing ala-ala sa
akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang

20. 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.
lahat ng karapatan sa aking pamangkin na si Felix
Azuela, na siyang nag-alaga sa akin sa mahabang
panahon, yaong mga bahay na nakatirik sa lote
numero 28, Block 24 at nakapangalan sa Pechaten
Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong
lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang
lahat ng karapatan sa bahay at lupa na nasa 500
San Diego St., Lot 42, Block 24, Sampaloc, Manila
kay Felix Azuela at ang pagkakaloob kong ito ay
walang pasubali’t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na
siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang
mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa
Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

There is a distinct and consequential reason the Civil Code provides a PATUNAY NG MGA SAKSI
comprehensive catalog of imperatives for the proper execution of a
notarial will. Full and faithful compliance with all the detailed
Ang kasulatang ito, na binubuo ng ____ dahon pati
requisites under Article 805 of the Code leave little room for doubt as
ang huling dahong ito, na ipinahayag sa amin ni
to the validity in the due execution of the notarial will. Article 806
Eugenia E. Igsolo, tagapagmana na siya niyang
likewise imposes another safeguard to the validity of notarial wills —
Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
that they be acknowledged before a notary public by the testator and
nilagdaan ng nasabing tagapagmana sa ilalim ng
the witnesses. A notarial will executed with indifference to these two
kasulatang nabanggit at sa kaliwang panig ng lahat
codal provisions opens itself to nagging questions as to its legitimacy.
at bawa’t dahon, sa harap ng lahat at bawa’t sa
amin, at kami namang mga saksi ay lumagda sa
The case stems from a petition for probate filed on 10 April 1984 with harap ng nasabing tagapagmana at sa harap ng
the Regional Trial Court (RTC) of Manila. The petition filed by petitioner lahat at bawa’t isa sa amin, sa ilalim ng nasabing
Felix Azuela sought to admit to probate the notarial will of Eugenia E. kasulatan at sa kaliwang panig ng lahat at bawa’t
Igsolo, which was notarized on 10 June 1981. Petitioner is the son of dahon ng kasulatan ito.
the cousin of the decedent.
EUGENIA E. IGSOLO
The will, consisting of two (2) pages and written in the vernacular address: 500 San Diego St.
Pilipino, read in full: Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
HULING HABILIN NI EUGENIA E. IGSOLO
QUIRINO AGRAVA
SA NGALAN NG MAYKAPAL, AMEN: address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Issued at Manila on Jan. 21, 1981
Diego St., Sampaloc, Manila, pitongput siyam (79)
na gulang, nasa hustong pagi-isip, pag-unawa at LAMBERTO C. LEAÑO
memoria ay nag-hahayag na ito na ang aking huling address: Avenue 2, Blcok 7,
habilin at testamento, at binabali wala ko lahat ang Lot 61, San Gabriel, G.MA., Cavite Res.
naunang ginawang habilin o testamento: Cert. No. A-768277 issued at Carmona, Cavite on
Feb. 7, 1981
Una-Hinihiling ko na ako ay mailibing sa
Sementerio del Norte, La Loma sang-ayong sa
 JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo
10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the
left-hand margin of both pages of the will, but not at the bottom of the
attestation clause.
The probate petition adverted to only two (2) heirs, legatees and
devisees of the decedent, namely: petitioner himself, and one Irene
Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed
that the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo),
who represented herself as the attorney-in-fact of "the 12 legitimate
heirs" of the decedent. 2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was so it could be
utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real
property, all centering on petitioner’s right to occupy the properties of
the decedent.3 It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs,
namely her grandchildren, who were then residing abroad. Per
records, it was subsequently alleged that decedent was the widow of
Bonifacio Igsolo, who died in 1965, 4 and the mother of a legitimate
child, Asuncion E. Igsolo, who predeceased her mother by three (3)
months.5
Oppositor Geralda Castillo also argued that the will was not executed
and attested to in accordance with law. She pointed out that
decedent’s signature did not appear on the second page of the will,
and the will was not properly acknowledged. These twin arguments
are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated
10 August 1992.6 The RTC favorably took into account the testimony of
the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano,
and Juanito Estrada. The RTC also called to fore "the modern tendency
in respect to the formalities in the execution of a will x x x with the end
in view of giving the testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted oppositor’s arguments
that the will was not properly executed and attested to in accordance
with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having in
mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the
law on the formal requirements of a will with the end in view of giving
the testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at
the end of the will after the signature of the testatrix, the following
statement is made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana
na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit
at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at
bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t
dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not
signed by the subscribing witnesses at the bottom thereof, this Court is
of the view that the signing by the subscribing witnesses on the left
margin of the second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof, substantially
satisfies the purpose of identification and attestation of the will.
With regard to the oppositor’s argument that the will was not
numbered correlatively in letters placed on upper part of each page
and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first
page contains the entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation clause and
acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page,
which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix
on the will is a forgery, the testimonies of the three subscribing
witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and 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. Sioca 13 and In re: Will
of Andrada.14 In Uy Coque, the Court noted that among the defects of
the will in question was 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 Appeals 26 features an extensive discussion made by
Justice Regalado, speaking for the Court on the conflicting views on the
manner of interpretation of the legal formalities required in the
execution of the attestation clause in wills. 27 Uy
Coque and Andrada are cited therein, along with several other cases,
as examples of the application of the rule of strict
construction.28 However, the Code Commission opted to recommend a
more liberal construction through the "substantial compliance rule"
under Article 809. A cautionary note was struck though by Justice J.B.L.
Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.29 (Emphasis
supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in
its assailed decision, considering that the failure to state the number of
pages of the will in the attestation clause is one of the defects which
cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that
the witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other,30 the other omission cited
by Justice J.B.L. Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an examination of
the will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will
itself."31 Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact
can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one another’s
presence should be considered a fatal flaw since the attestation is the
only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Article 809. The
purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages. 33 The failure to state the
number of pages equates with the absence of an averment on the part
of the instrumental witnesses as to how many pages consisted the will,
the execution of which they had ostensibly just witnessed and
subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson and Taboada. However,
in this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article
805. Whatever the inclinations of the members of the Code
Commission in incorporating Article 805, the fact remains that they
saw fit to prescribe substantially the same formal requisites as
enumerated in Section 618 of the Code of Civil Procedure, convinced
that these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these requirements,
however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.35 The
transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the
testator’s incontestable desires, and not for the indulgent admission
of wills to probate.
The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of even
more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear
on the left-hand margin of the will, they do not appear at the bottom
of the attestation clause which after all consists of their averments
before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin." 37 While
three (3) Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly
signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the
will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-
hand margin.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its
pages. If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will be
"attested and subscribed by [the instrumental witnesses]." The
respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an unattested will. Even if
the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the witnesses in this
case signed the attestation clause itself, but not the left-hand margin of
the page containing such clause. Without diminishing the value of the
instrumental witnesses’ signatures on each and every page, the fact
must be noted that it is the attestation clause which contains the
utterances reduced into writing of the testamentary witnesses
themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the
will is written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental
facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly
attested to by the instrumental witnesses, as they failed to sign the
attestation clause.
Yet, there is another fatal defect to the will on which the denial of this
petition should also hinge. The requirement under Article 806 that
"every will must be acknowledged before a notary public by the
testator and the witnesses" has also not been complied with. The
importance of this requirement is highlighted by the fact that it had
been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance
of Article 806 in this case is equally as critical as the other cited flaws in
compliance with Article 805, and should be treated as of equivalent
import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation
can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act
or deed.41 It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though
it does not hew to the usual language thereof. A jurat is that part of an
affidavit where the notary certifies that before him/her, the document
was subscribed and sworn to by the executor. 42 Ordinarily, the
language of the jurat should avow that the document was subscribed
and sworn before the notary public, while in this case, the notary
public averred that he himself "signed and notarized" the document.
Possibly though, the word "ninotario" or "notarized" encompasses the
signing of and swearing in of the executors of the document, which in
this case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as
a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another
all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not
an empty meaningless act.43 The acknowledgment coerces the testator
and the instrumental witnesses to declare before an officer of the law
that they had executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent
of the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions
to those persons he/she 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.

21. G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI
MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the
First Civil Cases Division of the then Intermediate Appellate Court, now
Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the
Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last
will and testament3 with codicil4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a
notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4
of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public
and by private respondent who were present at the execution, the
testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eight-paged document,
read the same aloud in the presence of the testator, the three
instrumental witnesses and the notary public. The latter four followed
the reading with their own respective copies previously furnished
them.
Meanwhile, Brigido's holographic will was subsequently admitted to
probate on 9 December 1977. On the 29th day of the same month, a
codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the notarial will
to generate cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the presence of
the three instrumental witnesses (same as those of the notarial will)
and the notary public who followed the reading using their own
copies.
A petition for the probate of the notarial will and codicil was filed upon
the testator's death on 3 January 1979 by private respondent as
executor with the Court of First Instance, now Regional Trial Court, of
Siniloan, Laguna.5Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane
or otherwise mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was executed under
duress, or influence of fear and threats; that it was procured by undue
and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly,
that the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds
relied upon in the Opposition, a Probate Order was issued on 27 June
1983 from which an appeal was made to respondent court. The main
thrust of the appeal was that the deceased was blind within the
meaning of the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading required by Art.
808 of the Civil Code was admittedly not complied with, probate of the
deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under
review with the following findings: that Brigido Alvarado was not blind
at the time his last will and codicil were executed; that assuming his
blindness, the reading requirement of Art. 808 was substantially
complied with when both documents were read aloud to the testator
with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments.
The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its
purpose of making known to the testator the contents of the drafted
will was served.
The issues now before us can be stated thus: Was Brigido Alvarado
blind for purpose of Art, 808 at the time his "Huling Habilin" and its
codicil were executed? If so, was the double-reading requirement of
said article complied with?
Regarding the first issue, there is no dispute on the following facts:
Brigido Alvarado was not totally blind at the time the will and codicil
were executed. However, his vision on both eyes was only of "counting
fingers at three (3) feet" by reason of the glaucoma which he had been
suffering from for several years and even prior to his first consultation
with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would
qualify Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when
the will and codicil were executed, he can be so considered within the
scope of the term as it is used in Art. 808. To support his stand,
petitioner presented before the trial court a medical certificate issued
by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology
(Philippine Eye Research Institute),6 the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise
was admitted by private respondent. 7 Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet, he could
no longer read either printed or handwritten matters as of 14
December 1977, the day of his first consultation.8
On the other hand, the Court of Appeals, contrary to the medical
testimony, held that the testator could still read on the day the will and
the codicil were executed but chose not to do so because of "poor
eyesight."9 Since the testator was still capable of reading at that time,
the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was
still capable of reading at the time his will and codicil were prepared,
the fact remains and this was testified to by his witnesses, that Brigido
did not do so because of his "poor," 10 "defective," 11 or
"blurred"12 vision making it necessary for private respondent to do the
actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an
insight into the scope of the term "blindness" as used in Art. 808, to
wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as when
he is illiterate), is to make the provisions thereof known to him, so that
he may be able to object if they are not in accordance with his wishes .
..
Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude
that Brigido Alvarado comes within the scope of the term "blind" as it
is used in Art. 808. Unless the contents were read to him, he had no
way of ascertaining whether or not the lawyer who drafted the will
and codicil did so confortably with his instructions. Hence, to consider
his will as validly executed and entitled to probate, it is essential that
we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the
will shall be read twice; once, by one of the instrumental witnesses
and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give him
an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the
notary public and an instrumental witness, it was the lawyer (private
respondent) who drafted the eight-paged will and the five-paged
codicil who read the same aloud to the testator, and read them only
once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of the law.
On the other hand, petitioner maintains that the only valid compliance
or compliance to the letter and since it is admitted that neither the
notary public nor an instrumental witness read the contents of the will
and codicil to Brigido, probate of the latter's will and codicil should
have been disallowed.
We sustain private respondent's stand and necessarily, the petition
must be denied.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible
as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and
codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not
sufficiently made known and communicated to the testator. On the
contrary, with respect to the "Huling Habilin," the day of the execution
was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony
of Atty. Rino is that Brigido Alvarado already acknowledged that the
will was drafted in accordance with his expressed wishes even prior to
5 November 1977 when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr.
Crescente O. Evidente (one of the three instrumental witnesses and
the testator's physician) asked the testator whether the contents of
the document were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word for word
with their own copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms
actually appearing on the typewritten documents. This is especially
true when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him
since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not
affect its purpose and which, when taken into account, may only
defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial
court's Probate Order and its affirmance by the Court of Appeals, we
quote the following pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid the substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on the subject should be interpreted in such a way
as to attain these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the testator's
will, must be disregarded(emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and

unmistakable terms in his "Huling Habilin" and the codicil attached
thereto. We are unwilling to cast these aside fro the mere reason that
a legal requirement intended for his protection was not followed
strictly when such compliance had been rendered unnecessary by the
fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already
been accomplished. To reiterate, substantial compliance suffices where
the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of

respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained pending,
this decision is immediately executory. Costs against petitioner.

SO ORDERED.

22. EODORO 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, Rodriguez vs. Yap, Grey vs. Fabia,58 Leynez vs.
56 57
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:
"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.

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

23. ESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-
practically gone back to the original provisions of Section 618 of the
NOBLE, petitioner, vs. ALIPIO ABAJA and NOEL
Code of Civil Procedure before its amendment by Act No. 2645 in the
ABELLAR, respondents.
year 1916. To turn this attitude into a legislative declaration and to
attain the main objective of the proposed Code in the liberalization of
the manner of executing wills, article 829 of the Project is
recommended, which reads:
[G.R. 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.

24. TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP

deceased. FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for

appellant.
Arturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart

failure in the University of Santo Tomas Hospital, leaving properties in
Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the

Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, substantially in
these words:

Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay
aking ipinamamana sa aking mga kamag-anakang sumusunod:
Vicente Esguerra, Sr. .............................................
Fausto E. Gan .........................................................
Rosario E. Gan .........................................................
Filomena Alto ..........................................................
Beatriz Alto ..............................................................
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay
aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong
siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di
kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay
may kakulangan man ay bahala na ang aking asawa ang magpuno
upang matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted
that the deceased had not left any will, nor executed any testament
during her lifetime.
After hearing the parties and considering their evidence, the Hon.
Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its
contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra
mentioned to her first cousin, Vicente Esguerra, her desire to make a
will. She confided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness,
provided the document was entirely in her handwriting, signed and
dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5,
1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of
Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who
again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and
5 Bahagi Rosario Gan Jimenez, a niece. To these she showed the will, again in
the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T.
2 Bahagi Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being
afraid of him by reason of his well-known violent temper, she delivered
2 Bahagi it to him. Thereafter, in the same day, Ildefonso Yap returned the purse
to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last time. 2
1 Bahagi
From the oppositor's proof it appears that Felicidad Esguerra had been
suffering from heart disease for several years before her death; that
she had been treated by prominent physicians, Dr. Agerico Sison, Dr.
1 Bahagi
Agustin Liboro and others; that in May 1950 husband and wife
journeyed to the United States wherein for several weeks she was
treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most
serious of which happened in the early morning of the first Monday of
November 1951 (Nov. 5). The whole household was surprised and
alarmed, even the teachers of the Harvardian Colleges occupying the
lower floors and of by the Yap spouses. Physician's help was hurriedly
called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient
hardly breathing, lying in bed, her head held high by her husband.
Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her
husband and her personal attendant, Mrs. Bantique, constantly at her
side. These two persons swore that Mrs. Felicidad Esguerra Yap made
no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several
reasons, the most important of which were these: (a) if according to
his evidence, the decedent wanted to keep her will a secret, so that
her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes,
Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d)
it is also improbable that her purpose being to conceal the will from
her husband she would carry it around, even to the hospital, in her
purse which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to
believe that he returned it without destroying the will, the theory of
the petitioner being precisely that the will was executed behind his
back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have
executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the
testimony of the oppositor and of his witnesses in a vigorous effort to
discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce
the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over
the same matters, because in our opinion the case should be decided
not on the weakness of the opposition but on the strength of the
evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills
along with other forms. The Code of Civil Procedure (Act 190)
approved August 7, 1901, adopted only one form, thereby repealing
the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its
arts. 810-814. "A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator himself.
It is subject to no other form and may be made in or out of the
Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities
provided for wills under Act 190, which for fifty years (from 1901 to
1950) required wills to be subscribed by the testator and three
credible witnesses in each and every page; such witnesses to attest to
the number of sheets used and to the fact that the testator signed in
their presence and that they signed in the presence of the testator and
of each other.
The object of such requirements it has been said, is to close the door
against bad faith and fraud, to prevent substitution of wills, to
guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid those who have no right to succeed the testator
would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No.
3 p. 194.)
Authenticity and due execution is the dominant requirements to be
fulfilled when such will is submitted to the courts for allowance. For
that purpose the testimony of one of the subscribing witnesses would
be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the
three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its
opinion as to the genuineness and authenticity of the testament, and
the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and signed by
the hand of the testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of authenticity, and as its
own safeguard, since it could at any time, be demonstrated to be — or
not to be — in the hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be necessary that at
least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses,
(familiar with decedent's handwriting) and if the court deem it
necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of
the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses,
who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of
opposition, and of assessing the evidence are not available. And then
the only guaranty of authenticity3 — the testator's handwriting — has
disappeared.
Therefore, the question presents itself, may a holographic will be
probated upon the testimony of witnesses who have allegedly seen it
and who declare that it was in the handwriting of the testator? How
can the oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to
compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be
caught between the upper millstone of his lack of knowledge of the
will or the form thereof, and the nether millstone of his inability to
prove its falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document, and having
no interest to check the authenticity thereof have taken no pains to
examine and compare. Or they may be perjurers boldly testifying, in
the knowledge that none could convict them of perjury, because no
one could prove that they have not "been shown" a document
which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings
sufficiently similar to those written by the deceased; but what witness
or lawyer would not foresee such a move and prepare for it? His
knowledge of the handwriting established, the witness (or witnesses)
could simply stick to his statement: he has seen and read a document
which he believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such witness (or
witnesses) not only as to the execution, but also as to the contents of
the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and
probate) of a lost or destroyed will by secondary — evidence the
testimony of witnesses, in lieu of the original document. Yet such Rules
could not have contemplated holographic wills which could not then
be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil
Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen 4 — an implied
admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled
and presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who
depose that they have no reasonable doubt that the will was written
by the testator (Art. 691). And if the judge considers that the identity
of the will has been proven he shall order that it be filed (Art. 693). All
these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse
and the legitimate ascendants and descendants be summoned so that
they may make "any statement they may desire to submit with respect
to the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself alone, to
prevent others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in the
face of the document itself they think the testator wrote it. Obviously,
this they can't do unless the will itself is presented to the Court and to
them.
Undoubtedly, the intention of the law is to give the near relatives the
choice of either complying with the will if they think it authentic, or to
oppose it, if they think it spurious. 5 Such purpose is frustrated when
the document is not presented for their examination. If it be argued
that such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the
will, if genuine, a right which they should not be denied by withholding
inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document
itself--in the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing
testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn
from it. Even in the face of allegations and testimonial evidence (which
was controverted), ascribing the mutilation to the opponents of the
will. The aforesaid tribunal declared that, in accordance with the
provision of the Civil Code (Spanish) the will itself, whole and
unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo
segundo del articulo 688 del Codigo civil, que para que sea valido el
testamento olografo debera estar escrito todo el y firmado por
testador, con expression del año, mes y dia en que se otorque, resulta
evidente que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la expresada redaccion el
precepto legal, y por el tiempo en que el verbo se emplea,
se desprende la necesidad de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la Autoridad
competente, para au adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un
defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero
Juzgo, admittedly the basis of the Spanish Civil Code provisions on the
matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E
depues que los herederos e sus fijos ovieren esta manda, fasta ...
annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el
obispo o el juez tomen otros tales tres escritos, que fuesen fechos por
su mano daquel que fizo la manda; e por aquellos escriptos, si semjara
la letra de la manda, sea confirmada la manda. E depues que todo esto
fuere connoscido, el obispo o el juez, o otras testimonios confirmen el
escripto de la manda otra vez, y en esta manera vala la manda. (Art.
689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property
of the deceased in accordance with his holographic will, unless they
are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y Ripert,
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page
555).
Taking all the above circumstances together, we reach the conclusion
that the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have
seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the allowance
of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation.
Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to
explain why, unlike holographic wills, ordinary wills may be proved by
testimonial evidence when lost or destroyed. The difference lies in the
nature of the wills. In the first, the only guarantee of authenticity is the
handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if the
ordinary will is lost, the subscribing witnesses are available to
authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then their lies
could be checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the testator,
their intimacy with the testator, etc. And if they were intimates or
trusted friends of the testator they are not likely to end themselves to
any fraudulent scheme to distort his wishes. Last but not least, they
can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were
admissible9 only one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and signature
of the deceased, he may contrive to let three honest and credible
witnesses see and read the forgery; and the latter, having no interest,
could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost — the forger
may have purposely destroyed it in an "accident" — the oppositors
have no way to expose the trick and the error, because the document
itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only one of them need be signed,
the substitution of the unsigned pages, which may be the most
important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
objectionable feature — feasibility of forgery — would be added to the SUMULONG, intervenor.
several objections to this kind of wills listed by Castan, Sanchez Roman
and Valverde and other well-known Spanish Commentators and Luciano A. Joson for petitioner-appellant.
teachers of Civil Law.10
Cesar Paralejo for oppositor-appellee.
One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw,
namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion which RELOVA, J.:
can not be tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand. This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
Turning now to the evidence presented by the petitioner, we find
ourselves sharing the trial judge's disbelief. In addition to the dubious As found by the Court of Appeals:
circumstances described in the appealed decision, we find it hard to
believe that the deceased should show her will precisely to relatives
... On January 11, 1977, appellant filed a petition with the Court of First
who had received nothing from it: Socorro Olarte and Primitivo Reyes.
Instance of Rizal for the probate of the holographic will of Ricardo B.
These could pester her into amending her will to give them a share, or
Bonilla and the issuance of letters testamentary in her favor. The
threaten to reveal its execution to her husband Ildefonso Yap. And this
petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees
leads to another point: if she wanted so much to conceal the will from
Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias
her husband, why did she not entrust it to her beneficiaries?
and Ephraim Bonilla on the following grounds:
Opportunity to do so was not lacking: for instance, her husband's trip
to Davao, a few days after the alleged execution of the will.
(1) Appellant was estopped from claiming that the deceased left a will
by failing to produce the will within twenty days of the death of the
In fine, even if oral testimony were admissible to establish and probate
testator as required by Rule 75, section 2 of the Rules of Court;
a lost holographic will, we think the evidence submitted by herein
petitioner is so tainted with improbabilities and inconsistencies that it
fails to measure up to that "clear and distinct" proof required by Rule (2) The alleged copy of the alleged holographic will did not contain a
77, sec. 6.11 disposition of property after death and was not intended to take effect
after death, and therefore it was not a will
Wherefore, the rejection of the alleged will must be sustained.
(3) The alleged hollographic will itself,and not an alleged copy thereof,
must be produced, otherwise it would produce no effect, as held in
Judgment affirmed, with costs against petitioner.
Gam v. Yap, 104 Phil. 509; and

(4 ) The deceased did not leave any will, holographic or otherwise,

executed and attested as required by law.

The appellees likewise moved for the consolidation of the case with
another case Sp. Proc. No, 8275). Their motion was granted by the
court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the

appellees moved again to dismiss the petition for the probate of the
will. They argued that:

(1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the schools
and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary

evidence unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by

the court in its order of February 23, 1979.

25. IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

The appellees then filed a motion for reconsideration on the ground
RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-
that the order was contrary to law and settled pronouncements and
appellant,
rulings of the Supreme Court, to which the appellant in turn filed an
vs.
opposition. On July 23, 1979, the court set aside its order of February
23, 1979 and dismissed the petition for the probate of the will of authenticity of the handwriting of the deceased can be determined by
Ricardo B. Bonilla. The court said: the probate court.

... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of the
original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held
that 'in the matter of holographic wills the law, it is reasonable to
suppose, regards the document itself as the material proof of
authenticity of said wills.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9, 1979,
of the Order dated July 23, 1979, dismissing her petition to approve
the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

MOREOVER, this Court notes that the alleged holographic will was
executed on January 25, 1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the fact that the
original of the will could not be located shows to our mind that the
decedent had discarded before his death his allegedly missing
Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal

to the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on

the ground that the appeal does not involve question of fact and
alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC

WILL MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or
cannot be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is
the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at
least one Identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost
or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison
between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gam vs. Yap,
104 PHIL. 509, the Court ruled that "the execution and the contents of
a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a
photographic or photostatic copy. Even a mimeographed or carbon
copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the
probate court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the

26. XXXX cannot be found
27. IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE
JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO
ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de
Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent
Hon. Jose C. Colayco, Presiding Judge Court of First Instance of Manila,
Branch XXI disallowing the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are
undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Jesus, Special Proceeding No. 81503 entitled "In the Matter of the
Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was
filed by petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to
be the holographic Will of the deceased Bibiana Roxas de Jesus. On
May 26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana
R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win
addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61 " and states: "This is my win which I want to be
respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies
of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise
testified that the letter dated "FEB./61 " is the holographic Will of their
deceased mother, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively Identified her signature.
They further testified that their deceased mother understood English,
the language in which the holographic Will is written, and that the date
"FEB./61 " was the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under
duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have
intended the said Will to be her last Will and testament at the time of
its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have
been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration
alleging inter alia that the alleged holographic Will of the deceased
Bibiana R. de Jesus was not dated as required by Article 810 of the Civil
Code. She contends that the law requires that the Will should contain
the day, month and year of its execution and that this should be strictly
complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his
earlier order and disallowed the probate of the holographic Will on the
ground that the word "dated" has generally been held to include the
month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of
Bibiana Roxas de Jesus, is hereby disallowed for not having been
executed as required by the law. The order of August 24, 1973 is
hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator himself.
It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil
Code and Article 688 of the Old Civil Code require the testator to state
in his holographic Win the "year, month, and day of its execution," the
present Civil Code omitted the phrase Año mes y dia and simply
requires that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will should
prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the
New Civil Code in that the date must contain the year, month, and day
of its execution. The respondent contends that Article 810 of the Civil
Code was patterned after Section 1277 of the California Code and
Section 1588 of the Louisiana Code whose Supreme Courts had
consistently ruled that the required date includes the year, month, and
day, and that if any of these is wanting, the holographic Will is invalid.
The respondent further contends that the petitioner cannot plead
liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and
literal application of the statutory requirements regarding the due
execution of Wills. We should not overlook the liberal trend of the Civil
Code in the manner of execution of Wills, the purpose of which, in
case of doubt is to prevent intestacy —
The underlying and fundamental objectives permeating the provisions
of the law on wigs 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 sufficien
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 modem tendency with respect to
the formalities in the execution of wills. (Report of the Code
Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro
v. Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in
his last will and testament on the ground that any disposition made by
the testator is better than that which the law can make. For this
reason, intestate succession is nothing more than a disposition based
upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of testamentary privilege Icasiano
v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad
faith and fraud in the exercise thereof is obviated, said Win should be
admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are
to be considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the
instrument appears to have been executed substantially in accordance
with the requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud, lean towards
its admission to probate, although the document may suffer from
some imperfection of language, or other non-essential defect. ...
(Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the
objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has
been expounded by this Court in Abangan v. Abanga 40 Phil. 476,
where we ruled that:
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same
day, or of a testator becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency
in this case.
We have carefully reviewed the records of this case and found no
evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language
known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of
the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that
the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be
entertained.
As a general rule, the "date" in a holographic Will should include the
day, month, and year of its execution. However, when as in the case at
bar, there is no appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established and the only
issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil
Code, probate of the holographic Will should be allowed under the
principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed
from is REVERSED and SET ASIDE and the order allowing the probate of
the holographic Will of the deceased Bibiana Roxas de Jesus is
reinstated.
SO ORDERED.
28. IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted
by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic
will of one Melecio Labrador is dated, as provided for in Article 8102 of
the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of
Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-
1652, and the following heirs, namely: Sagrado, Enrica, Cristobal,
Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by
his heirs), Enrica Labrador and Cristobal Labrador, filed in the court a
quo a petition for the probate docketed as Special Proceeding No. 922-
I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased
but substituted by his heirs), and Gaudencio Labrador filed an
opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecio's death, for the
consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying in
favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a
matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-
21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land
to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of
Absolute Sale over a parcel of land which Sagrado allegedly had
already acquired by devise from their father Melecio Labrador under a
holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence,
the trial court rendered a joint decision dated February 28, 1985,
allowing the probate of the holographic will and declaring null and
void the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to
the petitioners the sum of P5,000.00 representing the redemption
price for the property paid by the plaintiff-petitioner Sagrado with
legal interest thereon from December 20, 1976, when it was paid to
vendee a retro.
Respondents appealed the joint decision to the Court of Appeals,
which on March 10, 1988 modified said joint decision of the court a
quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners'
Motion for Reconsideration of the aforesaid decision was denied by
the Court of Appeals, in the resolution of June 13, 1988. Hence, this
petition.
Petitioners now assign the following errors committed by respondent
court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING
THE PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO
LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE
LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE
THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into
English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned
and shared or the partition in favor of SAGRADO LABRADOR which is
the fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at the
South is the property and assignment share of ENRICA LABRADOR, also
their sister, and the boundary in the West is the sea, known as the SEA
as it is, and the boundary on the NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also their brother. That because
it is now the time for me being now ninety three (93) years, then I feel
it is the right time for me to partition the fishponds which were and
had been bought or acquired by us, meaning with their two mothers,
hence there shall be no differences among themselves, those among
brothers and sisters, for it is I myself their father who am making the
apportionment and delivering to each and everyone of them the said
portion and assignment so that there shall not be any cause of
troubles or differences among the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than
MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is
this that should be followed and complied with in order that any
differences or troubles may be forestalled and nothing will happen
along these troubles among my children, and that they will be in good
relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos
and all coconut trees and all others like the other kind of bamboo by
name of Bayog, it is their right to get if they so need, in order that
there shall be nothing that anyone of them shall complain against the
other, and against anyone of the brothers and sisters.
III — THIRD PAGE
And that referring to the other places of property, where the said
property is located, the same being the fruits of our earnings of the
two mothers of my children, there shall be equal portion of each share
among themselves, and or to be benefitted with all those property,
which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL)
which I am here hereof manifesting of the truth and of the fruits of our
labor which their two mothers, I am signing my signature below
hereof, and that this is what should be complied with, by all the
brothers and sisters, the children of their two mothers — JULIANA
QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father
who made this writing (WILL), and he is, MELECIO LABRADOR y
RALUTIN (p. 46, Rollo)
between the testator and the beneficiaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus a failure to
comply with Article 783 which defines a will as "an act whereby a
person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take effect after his
death."
Respondents are in error. The intention to show 17 March 1968 as the
date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the will
was not an agreement but a unilateral act of Melecio Labrador who
plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the testator's
instruction or decision to be followed reveal that Melecio Labrador
was fully aware of the nature of the estate property to be disposed of
and of the character of the testamentary act as a means to control the
disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which they had no
authority to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to immediately
regain possession of the property for its disposition in accordance with
the will. Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated
March 10, 1988 is hereby REVERSED. The holographic will of Melecio
Labrador is APPROVED and ALLOWED probate. The private
respondents are directed to REIMBURSE the petitioners the sum of
Five Thousand Pesos (P5,000.00).
SO ORDERED.

The petition, which principally alleges that the holographic will is really
dated, although the date is not in its usual place, is impressed with
merit.

The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1âwphi1 It is worthy of note to quote the
first paragraph of the second page of the holographic will, viz:

And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than
MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should
be placed in the will. The only requirements are that the date be in the
will itself and executed in the hand of the testator. These requirements
are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when
the testator and his beneficiaries entered into an agreement among
themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution
of the holographic will; hence, the will is more of an "agreement"