Garcia v.

Vasquez 32 SCRA 489 FACTS: This is a petition for appeal from the CFI of Manila admitting to probate the will of Gliceria Avelino del Rosario (Gliceria) executed in 1960. Likewise, this is also an appeal to remove the current administrator, Consuelo Gonzales-Precilla( Consuelo) as special administratrix of the estate on the ground of Consuelo possesses interest adverse to the estate and to order the RD of Manila to annotate on the registered lands a notice of Lis Pendens. When Gliceria died she had no descendants, ascendants, brothers or sisters and she was then 90 yrs old. After which, her niece, Consuelo petitioned the court to be appointed as the administratrix of the properties. The court approved his petition because Consuelo has been was already managing the properties of the deceased during her lifetime. What the respondents allege is that in the last years of the deceased, Consuelo sought the transfer of certain parcels of land valued at 300k for a sale price of 30k to her husband Alfonso through fraud and intimidation. In addition, the oppositors presented evidence that Consuelo asked the court to issue new Certificates of Titles to certain parcels of land for the purpose of preparing the inventory to be used in the probate. Also shown was that NEW TCTs were issued by the RD for certain lands of the deceased after Consuelo asked for the old TCTs. At the end of the probate proceedings, the court ruled that Counsuelo should be made the administrator, and that the will was duly executed because of these reasons: NO EVIDENCE HAS BEEN PRESENTED to establish that the deceased was not of sound mind, that eventough the allegations state that the deceased prepared another will in 1956 (12pages), the latter is not prevented from executing another will in 1960 (1page), and that inconsistencies in the testimonies of the witnesses prove their truthfulness. ISSUE: Was the will in 1960 (1 page) duly/properly executed? HELD: NO. Provision of Article 808 mandatory. Therefore, For all intents and purposes of the rules on probate, the testatrix was like a blind testator, and the due execution of her will would have required observance of Article 808. 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. Likewise, the 1970 will was done in Tagalog which the deceased is not well versed but in Spanish. This creates doubt as to the due execution of the will and as well as the typographical errors contain therein which show the haste in preparing the 1 page will as compared to the 12 page will created in 1956 written in Spanish. ALSO, as to the blindness, there was proof given by the testimony of the doctor that the deceased could not read at near distances because of cataracts. (Testatrixs vision was mainly for viewing distant objects and not for reading print.) Since there is no proof that it was read to the deceased twice, the will was NOT duly executed. ALSO, Consuelo should be removed as administrator because she is not expected to sue her own husband to reconvey the lands to the estate alleged to have been transferred by the deceased to her own husband. The notice of lis pendens is also not proper where the issue is not an action in rem, affecting real property or the title thereto. In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO vs. RAMON G. GAVIOLA, JR., et al G.R. No. 74695 September 14, 1993 BELLOSILLO, J.: On 5 Nov 1977, the Brigido Alvarado(79-year old) 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 RTC. 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 8-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. Later on, a codicil 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 by private respondent as executor. Petitioner, in turn, filed an Opposition. When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued 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. The CA ruled 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. Issue: 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? Held: 1. 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 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. 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. 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. The following pronouncement in Garcia vs. Vasquez 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. 2. 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. 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. 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. 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. Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA vs. DOA MATEA LEDESMA G.R. No. L-7179 June 30, 1955 REYES, J.B.L., J.: By order, the CFI admitted to probate the documents in the Visayan dialect, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said documents were not executed in conformity with law. Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below, Issues: Whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and If so, whether the codicil was thereby rendered invalid and ineffective. Held: The contestants noted the signing of the certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan. Unlike the testament, this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806) . The instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses, the same was signed and sealed by notary public on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870). At any rate, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed. The decision admitting the will to probate is affirmed.

AGAPITA N. CRUZ vs. JUDGE GUILLERMO P. VILLASOR, et al G.R. No. L-32213 November 26, 1973 ESGUERRA, J.: Petition to review on certiorari the judgment of the CFI allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased opposed the allowance of the will, alleging among others that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament. Of the three instrumental witnesses thereto, one of them is at the same time the Notary Public before whom the will was supposed to have been acknowledged . Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them. Issue: Whether the supposed last will and testament of Valente Z. Cruz was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public. Held: The last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement (Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted. Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

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. [Emphasis supplied] To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed. TEODORO CANEDA, et al vs. COURT OF APPEALS, et al G.R. No. 103554 May 28, 1993 REGALADO, J.: On December 5, 1978, Mateo Caballero, a widower without any children, already in the twilight years of his life executed a last will and testament before three attesting witnesses and he was duly assisted by his lawyer and a notary public. It was declared therein that, among other things that the testator was leaving by way of legacies and devises his real and personal properties to specific persons, all of whom do not appear to be related to Mateo. Not long after, he himself filed a petition before the CFI seeking the probate of his last will and testament but the scheduled hearings were postponed, until the testator passed away before his petition could finally be heard by the probate court. Benoni Cabrera, one of the legatees named in the will, sought his appointment as special administrator of the testators estate but due to his death, he was succeeded by William Cabrera, who was appointed by RTC which is already the probate court. PETITIONERS: The petitioners assail to the allowance of the testators w ill on the ground that it was not executed in accordance with all the requisites of law since the testator was already in a poor state of health such that he could not have possibly executed the same. Petitioners likewise contend that the will is null and void because 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. RESPONDENTS: The respondent, on the other hand, argue that Mateo was of sound and disposing mind and in good health when he executed his will. Further, they also contend that the witnesses attested and signed the will in the presence of the testator and of each other. Issue: Whether the attestation clause in the last will of Mateo Caballero is fatally defective such that it affects the validity of the will; and that whether the attestation clause complies with the substantial compliance pursuant to Article 809 of the Civil Code. Held: 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 of the same. 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. Under the 3rd paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, should state: 1. The number of pages used upon which the will is written; 2. That the testator signed, or expressly cause 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 the said witnesses also signed the will and every page thereof in the presence of the testator and of one another. 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 sense, while subscription is the act of the hand. The attestation clause herein assailed is 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. What is then clearly lacking is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. The absence of the 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 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 Article 809 of the Civil Code: In the absence of bad faith, forgery, or fraud or undue and improper pressure and influence, defects and imperfection 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. The defects and imperfection must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfection would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. These 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. 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 it can be 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.