Additional Cases on Notarial wills

SECOND DIVISION
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO,
SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA,
QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by
his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, Petitioners, vs. HON. COURT OF APPEALS and WILLIAM CABRERA, as
Special Administrator of the Estate of Mateo Caballero, Respondents.
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. 1It 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. 3On 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. 3899R 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.
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. 9chanrobles virtual law library
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 10affirming 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."
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, 12hence 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. 13Under 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.
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.
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. 18The 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. 19It 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. 20It 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.
Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will, 22should 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 said witnesses 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.
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. 27Where 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.
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. 31chanrobles virtual law library
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 forhis 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.
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article
809, wherein he urged caution in the application of the substantial compliance rule
therein, is correct and should be applied in the case under consideration, as well as to
future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can
be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must
only be with respect to the form of the attestation or the language employed therein.
Such defects or imperfections would not render a will invalid should it be proved that
the will was really executed and attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and attestation has been held to be
limited to merely an examination of the will itself without resorting to evidence aliunde,
whether oral or written
The foregoing considerations do not apply where the attestation clause totally omits
the fact that the attesting witnesses signed each and every page of the will in the
presence of the testator and of each other. 35 In such a situation, the defect is not only
in the form or language of the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated in the attestation clause of a
will. That is precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation clause statement,
or an implication thereof, that the attesting witness did actually bear witness to the
signing by the testator of the will and all of its pages and that said instrumental
witnesses also signed the will and every page thereof in the presence of the testator
and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or
relied on by respondents since it presupposes that the defects in the attestation clause
can be cured or supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied within the execution of the will. In
other words, defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts
may be plausibly deduced. What private respondent insists on are the testimonies of
his witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by the indirection what in
law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of
views as to which manner of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required in the execution of wills.
The formal requirements were at that time embodied primarily in Section 618 of Act
No. 190, the Code of Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in
the case of Abangan vs. Abangan, 36 where it was held that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as
to attain these primordial ends. Nonetheless, it was also emphasized that one must
not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an interpretation already given
assures such ends, any other interpretation whatsoever that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded. The subsequent cases of Avera vs. Garcia, 37 Aldaba
vs. Roque, 38 Unson vs. Abella, 39Pecson vs. Coronel, 40Fernandez vs. Vergel de Dios,
et al., 41 and 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 withSano 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), andFernandez 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, 49 Rodriguez vs.
Alcala, 50Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 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, 55 Sebastian vs. Panganiban, 56 Rodriguez
vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60Alcala vs. De
Villa, 61 Sabado vs.

Fernandez, 62Mendoza vs. Pilapil, 63and Lopez vs. Liboro, 64 veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to be in accord with the modern
tendency to give a liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the Code
Commission:
The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and non-compliance
therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has become
more liberal in the interpretation of the formalities in the execution of wills. This liberal
view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939;Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back
to the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project is recommended, which
reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will was in
fact executed and attested in substantial compliance with all the requirements of article
829." 65

testatrix each of us three witnesses signed this testament." The opponent objected
that this clause did not state that the testatrix and the witnesses had signed each and
every page of the will or that she had signed the instrument in the presence of the
witnesses. Held: Considering that the witnesses only business at hand was to sign
and attest to the testatrixs signing of the document, and that the only actors in the
proceeding were the maker and the witnesses acting and speaking collectively and in
the first person, the phrase "in our presence", used as it was in connection with the
process of signing, can not imply anything but that the testatrix signed before them. No
other inference is possible. The prepositional phrase "in our presence" denotes an
active verb and the verb a subject. The verb could be no other than signed and the
subject no other than the testatrix. The use of the word "also" is no less enlightening. It
denotes that, as each of the witnesses signed in the presence of the testatrix and of
one another, the testatrix signed similarly or in like manner - in their presence.
2. ID.; STATUTORY CONSTRUCTION; ATTESTATION CLAUSE; LIBERAL
INTERPRETATION. In consonance with the principle of liberal interpretation,
adhered to in numerous later decisions of the Supreme Court and affirmed and
translated into enactment in the New Civil Code (Article 827) the attestation clause of
the will in the case at bar is sufficient and valid.
3. ID.; SIMPLE LANGUAGE USED IN THE ATTESTATION CLAUSE. Precision of
language in the drafting of the 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. (Ticson v. Gorostiza, 57 Phil. 437).
4. ID.; WHEN TWO DISTINCT WILLS ARE PROBATED SEPARATELY. Two
separate and distinct wills may be probated if one does not revoke the other and
provided that the statutory requirements relative to the execution of wills have been
complied, with.
5. ID.; DISINHERITANCE NEED NOT BE ACCOMPLISHED IN THE SAME WILL.
Article 849 of the Civil Code of Spain does not require that the disinheritance should
be accomplished in the same instrument by which the maker provides for the
disposition of his or her property after his or her death; it merely provides that
"disinheritance can be effected only by a will (any will) in which the legal cause upon
which it is based is expressly stated."

This is an appeal from the Court of Appeals which affirmed an order of the Court of
First Instance of Zambales denying the probate of the last will and testament and a socalled codicil, identified as Exhibits A and B, of Pilar Montealegre, deceased. The
testatrix was survived by her husband and collateral relatives, some of whom, along
with the husband, were disinherited in Exhibit B for the reasons set forth therein.

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.

The opposition to Exhibit A was predicated on alleged defects of the attestation clause.
Written in the local dialect known to the testatrix, the attestation clause, as translated
into English in the record on appeal reads:

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

The opponent objected that this clause did not state that the testatrix and the
witnesses had signed each and every page of the will or that she had signed the
instrument in the presence of the witnesses. The Appellate Court dismissed the first
objection, finding that "failure to state in the attestation clause in question that the
testatrix and/or the witnesses had signed each and every page of Exhibit A were cured
by the fact that each one of the pages of the instrument appears to be signed by the
testatrix and the three attesting witnesses (Nayve v. Mojal, 47 Phil., 152, (1924);
Ticson v. Gorostiza, 57 Phil., 437, (1932); Leynes v. Leynes, 40 Off. Gaz., 3rd Suppl.
(October 18, 1939), 510, 528; Rallos v. Rallos, 44 Off. Gaz., 4938, 4940)." But granting
the correctness of the premise, the court held the second objection well taken and thus
concluded: "The question whether the testatrix had signed in the presence of said
witnesses can not be verified upon physical examination of the instrument. Hence, the
absence of the required statement in said clause may not, pursuant to the decisions of
the Supreme Court, be offset by proof aliunde even if admitted without objection.

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.

EN BANC
[G.R. No. L-4888. May 25, 1953.]
JOSE MERZA, Petitioner, v. PEDRO LOPEZ PORRAS, Respondent.

1. WILLS; PROBATE OF DEFECTIVE WILLS; PHRASE "IN OUR PRESENCE",

EXPLAINED. Written in the local dialect known to the testatrix, the attestation
clause, as translated into English in the record on appeal reads: "The foregoing
instrument consisting of three (3) pages, on the date above mentioned, was executed,
signed and published by testatrix Pilar Montealegre and she declared that the said
instrument is her last will and testament; that in our presence and also in the very
presence of the said testatrix as likewise in the presence of two witnesses and the

"The foregoing instrument consisting of three pages, on the date above-mentioned,

was executed, signed and published by testatrix Pilar Montealegre and she declared
that the said instrument is her last will and testament; that in our presence and also in
the very presence of the said testatrix as likewise in the presence of two witnesses
and the testatrix each of us three witnesses signed this testament."

The premise of this conclusion is, in our opinion, incorrect.

It must be admitted that the attestation clause was very poorly drawn, its language
exceedingly ungrammatical to the point of being difficult to understand; but from a
close examination of the whole context in relation to its purpose the implication seems
clear that the testatrix signed in the presence of the witnesses. Considering that the
witnesses only business at hand was to sign and attest to the testatrixs signing of the
document, and that the only actors in the proceeding were the maker and the
witnesses acting and speaking collectively and in the first person, the phrase "in our
presence," used as it was in connection with the process of signing, can not imply
anything but that the testatrix signed before them. No other inference is possible. The
prepositional phrase "in our presence" denotes an active verb and the verb a subject.
The verb could be no other than signed and the subject no other than the testatrix.
The use of the word "also" is no less enlightening. It denotes that, as each of the
witnesses signed in the presence of the testatrix and of one another, so the testatrix
signed in similar or like manner in their presence.
In consonance with the principle of liberal interpretation, adhered to in numerous later
decisions of this Court and affirmed and translated into enactment in the new Civil
Code (Article 827), we are constrained to hold the attestation clause under
consideration sufficient and valid.

"Precision of language in the drafting of the 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." (Ticson v. Gorostiza, supra.)
"It could not have been the intention of the legislature in providing for the essential
safeguards in the execution of a will to shackle the very right of testamentary
disposition which the law recognizes and holds sacred." (Leynes v. Leynes, supra.)
With reference to Exhibit B the Court of Appeals agreed with the trial court that the
document having been executed one day before Exhibit A could not be considered as
a codicil "because a codicil, as the word implies, is only an addition to, or modification
of, the will." The Court of Appeals added that "the contents of Exhibit B are couched in
the language ordinarily used in a simple affidavit and as such, may not have the legal
effect and force of a testamentary disposition." Furthermore, the Court of Appeals
observed, disinheritance "may not be made in any instrument other than the will
Exhibit A, as expressly provided for in article 849 of the Civil Code," and, "there being
no disposition as to the disinheritance of the oppositor, Pedro Lopez Porras (the
surviving spouse), in the said Exhibit A, it is quite clear that he can not be disinherited
in any other instrument including Exhibit B, which is, as above stated, a simple
affidavit."
Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil
Code of Spain as "the act by which a person disposes of all his property or a portion of
it," and in article 783 of the new Civil Code 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." Exhibit B comes within this definition.
Being of testamentary character and having been made with all the formalities of law,
Exhibit B is entitled to probate as an independent testamentary disposition. In the
absence of any legal provision to the contrary - and there is none in this jurisdiction
it is the general, well-established rule that two separate and distinct wills may be
probated if one does not revoke the other (68 C. J., 885) and provided that the
statutory requirements relative to the execution of wills have been complied with (Id.
881). As seen, Exhibit B embodies all the requisites of will, even free of such formal or
literary imperfections as are found in Exhibit A.
It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs
from testate or intestate succession. Article 849 of the Civil Code of Spain does not, as
the appealed decision seems to insinuate, require that the disinheritance should be
accomplished in the same instrument by which the maker provides for the disposition
of his or her property after his or her death. This article merely provides that
"disinheritance can be effected only by a will (any will) in which the legal cause upon
which it is based is expressly stated.
It is our judgment therefore that the instruments Exhibits A and B should be admitted to
probate, subject of course to the right of the disinherited person under article 850 to
contest the disinheritance, and it is so ordered, with costs against the appellee.

EN BANC
[G.R. No. L-18979. June 30, 1964.]
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA.
CELSO ICASIANO,Petitioner-Appellee, v. NATIVIDAD ICASIANO and ENRIQUE
ICASIANO, Oppositors-Appellants.

1. WILLS; PROBATE; POLICY OF COURT AGAINST UNDUE CURTAILMENT OF

TESTAMENTARY PRIVILEGE. The precedents cited in the case at bar exemplify
the Courts policy to require satisfaction of the legal requirements in the probate of a
will in order to guard against fraud and bad faith but without undue or unnecessary
curtailment of the testamentary privilege.
2. ID.; ID.; HANDWRITING EXPERT MUST HAVE SUFFICIENT STANDARDS OF
COMPARISON TO PROVE FORGERY OF TESTATRIXS SIGNATURE. The
opinion of a handwriting expert trying to prove forgery of the testatrixs signature fails
to convince the court, not only because it is directly contradicted by another expert but
principally because of the paucity of the standards used by him (only three other
signatures), considering the advanced age of the testatrix, the evident variability of her
signature, and the effect of writing fatigue.
3. ID.; ID.; VARIANCE IN INK COLOR NOT RELIABLE WHEN WRITINGS AFFIXED
TO DIFFERENT KINDS OF PAPER. The slight variance in blueness of the ink in
the admitted and questioned signatures does not appear reliable, considering that the
standard and challenged writings were affixed to different kinds of paper.
4. ID.; ID.; FRAUD OF UNDUE INFLUENCE, DIVERSITY OF APPORTIONMENT AND
PROHIBITION AGAINST CONTEST NO EVIDENCE OF. Neither diversity of
apportionment nor prohibition against contest is evidence of fraud or undue influence
in the execution of a will.
5. ID.; ID.; FRAUD AND UNDUE INFLUENCE ARE REPUGNANT ALLEGATIONS.
Allegation of fraud and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.
6. ID.; ID.; INADVERTENT FAILURE OF AN ATTESTING WITNESS TO AFFIX HIS
SIGNATURE TO ONE PAGE OF A WILL NOT FATAL. The inadvertent failure of an
attesting witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per se sufficient to
justify denial of probate.

7. ID.; ID.; SIGNED CARBON DUPLICATE OF WILL NEEDS NO PUBLICATION.

That the signed carbon duplicate of a will was produced and admitted without a new
publication does not affect the jurisdiction of the probate court, already conferred by
the original publication of the petition for probate, where the amended petition did not
substantially alter the first one filed but merely supplemented it by disclosing the
existence of said duplicate.

Appeal from an order of the Court of First Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and appointing as executor Celso Ino, the
person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance
and admission to probate of the original, Exhibit "A" as the alleged will of Josefa
Villacorte, deceased, and for the appointment of petitioner Celso Ino as executor
thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice
thereof to be published for three (3) successive weeks, previous to the time appointed,
in the newspaper "Manila Chronicle", and also caused personal service of copies
thereof upon the known heirs.
On October 31, 1958, Natividad Ino, a daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to have herself appointed as a special
administrator, to which proponent objected. Hence, on November 18, 1958, the court
issued an order appointing the Philippine Trust Company as special administrator.
On February 18, 1959, Enrique Ino, a son of the testatrix, also filed a manifestation
adopting as his own Natividads opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his
evidence; but on June 1, 1959, he filed a motion for the admission of an amended and
supplemental petition, alleging that the decedent left a will executed in duplicate with
all the legal requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On
June 17, 1959, oppositors Natividad Ino de Gomez and Enrique Ino filed their joint
opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition; and on July 30, 1959, oppositor
Natividad Ino filed her amended opposition. Thereafter, the parties presented their
respective evidence, and after several hearings the court issued the order admitting
the will and its duplicate to probate. From this order, the oppositors appealed directly
to this Court, the amount involved being over P200,000.00, on the ground that the
same is contrary to law and the evidence.chanrobles virtual lawlibrary
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in
the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa
Villacorte executed a last will and testament in duplicate at the house of her daughter
Mrs. Felisa Ino at Pedro Guevara Street, Manila, published before and attested by
three instrumental witnesses, namely; attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Dr. Vinicio B. Diy; that the will was acknowledged by the testatrix and
by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually
prepared by attorney Fermin Samson, who was also present during the execution and
signing of the decedents last will and testament, together with former Governor Emilio
Rustia of Bulacan, Judge Ramon Ino, and a little girl. Of the said three instrumental
witnesses to the execution of the decedents last will and testament attorneys Torres
and Natividad were in the Philippines at the time of the hearing, and both testified as to
the due execution and authenticity of the said will. So did the Notary Public before
whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorney Fermin Samson, who actually prepared the document. The latter also testified
upon cross examination that he prepared one original and two copies of Josefa
Villacortes last will and testament at his house in Baliuag, Bulacan, but he brought
only one original and one signed copy to Manila, retaining one unsigned copy in
Bulacan.
The records show that the original of the will, which was surrendered simultaneously
with the filing of the petition and marked as Exhibit "A", consists of five pages, and
while signed at the end and in every page, it does not contain the signature of one of
the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the
duplicate copy attached to the amended and supplemental petition and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and
every page.
The testimony presented by the proponents of the will tends to show that the original
of the will and its duplicate were subscribed at the end and on the left margin of each
and every page thereof by the testatrix herself and attested and subscribed by the
three mentioned witnesses in the testatrixs presence and in that of one another as
witnesses (except for the missing signature of attorney Natividad on page three (3) of
the original; that pages of the original and duplicate of said will were duly numbered;
that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the
language known to and spoken by the testatrix; that the attestation clause is in a
language also known to and spoken by the witnesses; that the will was executed on
one single occasion in duplicate copies; and that both the original and the duplicate
copy were duly acknowledged before Notary Public Jose Oyengco Ong of Manila on
the same date June 2, 1956.
Witness Natividad, who testified on his failure to sign page three (3) of the original,
admits that he may have lifted two pages instead of one when he signed the same, but
affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the

signatures of the testatrix in the duplicate (Exhibit A-1) are not genuine, nor were they
written or affixed on the same occasion as the original, and further aver that granting
that the documents were genuine, they were executed through mistake and with
undue influence and pressure because the testatrix was deceived into adopting as her
last will and testament the wishes of those who will stand to benefit from the provisions
of the will, as may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof, whereby proponentsappellees stand to profit from properties held by them as attorneys- in-fact of the
deceased and not enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and not to oppose
the probate of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix
signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the
will spontaneously, on the same occasion, in the presence of the three attesting
witnesses, the notary public who acknowledged the will, and Atty. Samson, who
actually prepared the documents; that the will and its duplicate were executed in
Tagalog, a language known to and spoken by both the testator and the witnesses, and
read to and by the testatrix and Atty. Fermin Samson together before they were
actually signed; that the attestation clause is also in a language known to and spoken
by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appealing in the duplicate original were not
written by the same hand, which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert Martin Ramos for
the proponents, but principally because of the paucity of the standards used by him to
support the conclusion that the differences between the standard and questioned
signatures are beyond the writers range of normal scriptural variation. The expert has,
in fact, used as standards only three other signatures of the testatrix besides those
affixed to the original of the testament (Exh. A); and we feel that with so few standards
the experts opinion that the signatures in the duplicate could not be those of the
testatrix becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that there are radical differences that
would justify the charge of forgery, taking into account the advanced age of the
testatrix, the evident variability of her signatures, and the effect of writing fatigue, the
duplicate being signed right after the original. These factors were not discussed by the
expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering that standard and
challenged writings were affixed to different kinds of paper, with different surfaces and
reflecting power. On the whole, therefore, we do not find the testimony of the
oppositors expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy, being in the United States during the trial, did
not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some
heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27;
Bugnao v. Ubag, 14 Phil. 163; Pecson v. Coronel, 45 Phil. 216). Diversity of
apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary disposition that the heirs should not
inquire into other property and that they should respect the distribution made in the
will, under penalty of forfeiture of their shares in the free part, do not suffice to prove
fraud or undue influence. They appear motivated by the desire to prevent prolonged
litigation which, as shown by ordinary experience, often results in a sizeable portion of
the estate being diverted into the hands of non- heirs and speculators. Whether these
clauses are valid or not is a matter to be litigated on another occasion. It is also well to
note that, as remarked by the Court of Appeals in Sideco v. Sideco, 45 Off. Gaz. 168,
fraud and undue influence are mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows absence of definite evidence against
the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in
the course of signing, is not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to guarantee the identity of
the testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full observance
of the statutory requisites. Otherwise, as stated in Vda. de Gil v. Murciano, 88 Phil.
260; 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation clause."
That the failure of witness Natividad to sign page three (3) was entirely through pure
oversight is shown by his own testimony as well as by the duplicate copy of the will,
which bears a complete set of signatures in every page. The text of the attestation
clause and the acknowledgment before the Notary Public likewise evidence that no
one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are otherwise
satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament,
with the only page signed at its foot by testator and witnesses, but not in the left
margin, could nevertheless be probated (Abangan v. Abangan, 41 Phil. 476); and that
despite the requirement for the correlative lettering of the pages of a will, the failure to
mark the first page either by letters or numbers is not a fatal defect (Lopez v. Liboro,
81 Phil. 429). These precedents exemplify the Courts policy to require satisfaction of
the legal requirements in order to guard against fraud and bad faith but without undue
or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed
probate of the original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma: if the original is defective
and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh.
A-1), and the same is probatable. If the original is valid and can be probated, then the
objection to the signed duplicate need not be considered, being superfluous and
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of
one signature in the third page of the original testament was inadvertent and not
intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court, already conferred by
the original publication of the petition for probate. The amended petition did not
substantially alter the one first filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that new interests were involved
(the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs
against appellants.

Case on Joint Wills

EN BANC
[G.R. No. L-20234. December 23, 1964.]
PAULA DE LA CERNA, ET AL., Petitioners, v. MANUELA REBACA POTOT, ET
AL., and THE HONORABLE COURT OF APPEALS, Respondents.

1. JUDGMENTS; PROBATE COURTS; ERROR OF LAW DOES NOT AFFECT

JURISDICTION OF NOR CONCLUSIVE EFFECT OF DECISION. An error of law
committed in admitting a joint will to probate does not affect the jurisdiction of the
probate court nor the conclusive effect of its final decision.
2. ID.; ID.; PROBATE DECREE OF JOINT WILL AFFECTS ONLY SHARE OF
DECEASED SPOUSE. A final probate decree of a joint will of husband and wife
affects only the share of the deceased spouse and cannot include the disposition of
the share of the surviving spouse. The validity of said joint will, in so far as the estate
of the latter spouse is concerned, must be, on her death, reexamined and adjudicated
de novo.
3. WILLS; EFFECT OF VALIDITY OF JOINT WILL AS TO SHARE OF WIFE WHO
DIES LATER THAN THE HUSBAND. Where a husband and wife executed a join
will and upon the death of the husband, said will was admitted to probate by a final
decree of the court although erroneous, and the wife dies later, it is held that said first
decree of probate affects only the estate of the husband but cannot affect the estate of
the wife, considering that a joint will is a separate will of each testator, and a joint will
being prohibited by law, the estate of the wife should pass upon her death to her
intestate heirs and not to the testamentary heirs, unless some other valid will is shown
to exist in favor of the latter or unless the testamentary heir is the only heir intestate of
said wife.

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth
Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu
(Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of
Appeals (Petition, Annex A, pp 2-4):jgc:chanrobles.com.ph
"It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and Gervasia
Rebaca, executed a joint last will and testament in the local dialect whereby they willed
that our two parcels of land acquired during our marriage together with all
improvements thereon shall be given to Manuela Rebaca, our niece, whom we have
nurtured since childhood, because God did not give us any child in our union, Manuela
Rebaca being married to Nicolas Potot, and that while each of the testator is yet
living, he or she will continue to enjoy the fruits of the two lands aforementioned, the
said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe
de la Cerna died on August 30, 1939, and the aforesaid will was submitted to probate
by said Gervasia and Manuela before the Court of First Instance of Cebu which, after
due publication as required by law and there being no opposition, heard the evidence,
and, by Order of October 31, 1939, in Special Proceedings No. 499, declara
legalizado el documento Exhibito A como el testamento y ultima voluntad del finado
Bernabe de la Cerna con derecho por parte de su viuda superstite Gervasia Rebaca y
otra testadora al proprio tiempo segun el Exhibito A de gozar de los frutos de los
terrenos descritos en dicho documento; y habido consideracion de la cuantia de
dichos bienes, se derecta la distribucion sumaria de los mismos en favor de la
legataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma
de una fianza en la suma de P500.00 para responder de cualesquiera reclamaciones
que se presentare contra los bienes del finado Bernabe de la Cerna dentro de los
aos desde esta fecha. (Act. Esp. 499, Testamentaria Finado Bernabe de la Cerna).
Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the

probate of the same will insofar as Gervasia was concerned was filed on November 6,
1952, being Special Proceedings No. 1016-R of the same Court of First Instance of
Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney, Manuel Potot
to appear, for the hearing of said petition, the case was dismissed on March 30, 1954
(Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia
Rebaca)."cralaw virtua1aw library
The Court of First Instance ordered the petition heard and declared the testament null
and void, for being executed contrary to the prohibition of joint wills in the Civil Code
(Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal
by the testamentary heir, the Court of Appeals reversed, on the ground that the decree
of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the
due execution of the testament. Further, the Court of Appeals declared
that:jgc:chanrobles.com.ph
". . . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the
making of a will jointly by two or more persons either for their reciprocal benefit or for
the benefit of a third person. However, this form of will has long been sanctioned by
use, and the same has continued to be used; and when, as in the present case, one
such joint last will and testament has been admitted to probate by final order of a Court
of competent jurisdiction, there seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was done in the case of Macrohon v.
Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of
the joint will therein mentioned, saying assuming that the joint will in question is
valid."cralaw virtua1aw library
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939
by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died),
has conclusive effect as to his last will and testament, despite the fact that even then
the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint
testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error
thus committed by the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of the probate court, nor
the conclusive effect of its final decision, however erroneous. A final judgment
rendered on a petition for the probate of a will is binding upon the whole world (Manalo
v. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156); and public policy and
sound practice demand that at the risk of occasional errors, judgment of courts should

become final at some definite date fixed by law. Interest rei publicae ut finis sit litium
(Dy Cay v. Crossfield, 38 Phil. 521, and other cases cited in 2 Moran, Comments on
the Rules of Court 1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by
the 1939 decree admitting his will to probate. The contention that being void the will
cannot be validated, overlooks that the ultimate decision on whether an act is valid or
void rests with the courts, and here they have spoken with finality when the will was
probated in 1939. On this count, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1939 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not include the disposition of the
share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest
in the conjugal properties the probate court acquired no jurisdiction, precisely because
her estate could not then be in issue. Be it remembered that prior to the Civil Code, a
will could not be probated during the testators lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint
will is considered a separate will of each testator. Thus regarded, the holding of the
Court of First Instance of Cebu that the joint will is one prohibited by law was correct
as to the participation of the deceased Gervasia Rebaca in the properties in question,
for the reasons extensively discussed in our decision in Bilbao v. Bilbao, 87 Phil. 144,
that explained the previous holding in Macrohon v. Saavedra, 51 Phil., 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to
her heirs intestate, and not exclusively to the testamentary heir, unless some other
valid will in her favor is shown to exist, or unless she be the only heir intestate of said
Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage
could not make them valid when our Civil Codes consistently invalidated them,
because laws are only repealed by other subsequent laws, and no usage to the
contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil
Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in
CA-G.R. No. 23763-R is affirmed. No costs.