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1.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE
LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO,
oppositors-appellants.

Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad
Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique
Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of
Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true
last will and testament of Josefa Villacorte, deceased,
and appointing as executor Celso Icasiano, the person
named therein as such.

This special proceeding was begun on October 2, 1958
by a petition for the allowance and admission to probate
of the original, Exhibit "A" as the alleged will of Josefa
Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for
November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the
time appointed, in the newspaper "Manila chronicle", and
also caused personal service of copies thereof upon the
known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of
the testatrix, filed her opposition; and on November 10,
1958, she petitioned to have herself appointed as a
special administrator, to which proponent objected.
Hence, on November 18, 1958, the court issued an
order appointing the Philippine Trust Company as
special administrator. 1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the
testatrix, also filed a manifestation adopting as his own
Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent
commenced the introduction of his evidence; but on
June 1, 1959, he filed a motion for the admission of an
amended and supplemental petition, alleging that the
decedent left a will executed in duplicate with all the
legal requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), which he
allegedly found only on or about May 26, 1959. On June
17, 1959, oppositors Natividad Icasiano de Gomez and
Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition,
but by order of July 20, 1959, the court admitted said
petition, and on July 30, 1959, oppositor Natividad
Icasiano filed her amended opposition. Thereafter, the
parties presented their respective evidence, and after
several hearings the court issued the order admitting the
will and its duplicate to probate. From this order, the
oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the
same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect
that Josefa Villacorte died in the City of Manila on
September 12, 1958; that on June 2, 1956, the late
Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published
before and attested by three instrumental witnesses,
namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney
Jose Oyengco Ong, Notary Public in and for the City of
Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during
the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia
of Bulacan, Judge Ramon Icasiano and a little girl. Of
the said three instrumental witnesses to the execution of
the decedent's last will and testament, attorneys Torres
and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public
before whom the will was acknowledged by the testatrix
and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared
one original and two copies of Josefa Villacorte last will
and testament at his house in Baliuag, Bulacan, but he
brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition
and marked as Exhibit "A" consists of five pages, and
while signed at the end and in every page, it does not
contain the signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3) thereof; but
the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses
in each and every page.

The testimony presented by the proponents of the will
tends to show that the original of the will and its
duplicate were subscribed at the end and on the left
margin of each and every page thereof by the testatrix
herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in
that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the
original); that pages of the original and duplicate of said
will were duly numbered; that the attestation clause
thereof contains all the facts required by law to be
recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known
to and spoken by the testatrix that the attestation clause
is in a language also known to and spoken by the
witnesses; that the will was executed on one single
occasion in duplicate copies; and that both the original
and the duplicate copies were duly acknowledged before
Notary Public Jose Oyengco of Manila on the same date
June 2, 1956.

Witness Natividad who testified on his failure to sign
page three (3) of the original, admits that he may have
lifted two pages instead of one when he signed the
same, but affirmed that page three (3) was signed in his
presence.

Oppositors-appellants in turn introduced expert
testimony to the effect that the signatures of the testatrix
in the duplicate (Exhibit "A-1") are not genuine nor were
they written or affixed on the same occasion as the
original, and further aver that granting that the
documents were genuine, they were executed through
mistake and with undue influence and pressure because
the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions
thereof, whereby proponents-appellees stand to profit
from properties held by them as attorneys-in-fact of the
deceased and not enumerated or mentioned therein,
while oppositors-appellants are enjoined not to look for
other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their
share in the portion of free disposal.

We have examined the record and are satisfied, as the
trial court was, that the testatrix signed both original and
duplicate copies (Exhibits "A" and "A-1", respectively) of
the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who
acknowledged the will; and Atty. Samson, who actually
prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and
spoken by both the testator and the witnesses, and read
to and by the testatrix and Atty. Fermin Samson,
together before they were actually signed; that the
attestation clause is also in a language known to and
spoken by the testatrix and the witnesses. The opinion of
expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate
original were not written by the same had which wrote
the signatures in the original will leaves us unconvinced,
not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally
because of the paucity of the standards used by him to
support the conclusion that the differences between the
standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert
has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the
original of the testament (Exh. A); and we feel that with
so few standards the expert's opinion and the signatures
in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so
since the comparison charts Nos. 3 and 4 fail to show
convincingly that the are radical differences that would
justify the charge of forgery, taking into account the
advanced age of the testatrix, the evident variability of
her signatures, and the effect of writing fatigue, the
duplicate being signed right the original. These, factors
were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the
ink in the admitted and questioned signatures does not
appear reliable, considering the standard and challenged
writings were affixed to different kinds of paper, with
different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositor's
expert sufficient to overcome that of the notary and the
two instrumental witnesses, Torres and Natividad (Dr.
Diy being in the United States during the trial, did not
testify).

Nor do we find adequate evidence of fraud or undue
influence. The fact that some heirs are more favored
than others is proof of neither (see In re Butalid, 10 Phil.
27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal,
45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other
property and that they should respect the distribution
made in the will, under penalty of forfeiture of their
shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to
prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a
matter to be litigated on another occassion. It is also well
to note that, as remarked by the Court of Appeals in
Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity
of the will.

On the question of law, we hold that the inadvertent
failure of one witness to affix his signature to one page
of a testament, due to the simultaneous lifting of two
pages in the course of signing, is not per se sufficient to
justify denial of probate. Impossibility of substitution of
this page is assured not only the fact that the testatrix
and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of
the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where
the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed,
and the evidence on record attests to the full observance
of the statutory requisites. Otherwise, as stated in Vda.
de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage
the will by muddling or bungling it or the attestation
clause".

That the failure of witness Natividad to sign page three
(3) was entirely through pure oversight is shown by his
own testimony as well as by the duplicate copy of the
will, which bears a complete set of signatures in every
page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the
time.

This would not be the first time that this Court departs
from a strict and literal application of the statutory
requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the
law, this Court has held that a testament, with the only
page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated
(Abangan vs. Abangan, 41 Phil. 476); and that despite
the requirement for the correlative lettering of the pages
of a will, the failure to make the first page either by
letters or numbers is not a fatal defect (Lopez vs. Liboro,
81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in
order to guard against fraud and bid faith but without
undue or unnecessary curtailment of the testamentary
privilege.

The appellants also argue that since the original of the
will is in existence and available, the duplicate (Exh. A-1)
is not entitled to probate. Since they opposed probate of
original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here
into a dilemma; if the original is defective and invalid,
then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable.
If the original is valid and can be probated, then the
objection to the signed duplicate need not be
considered, being superfluous and irrelevant. At any
rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original
testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced
and admitted without a new publication does not affect
the jurisdiction of the probate court, already conferred by
the original publication of the petition for probate. The
amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that
new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were
duly notified of the proposed amendment. It is nowhere
proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error
in admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed
from is affirmed, with costs against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
Concepcion, Paredes, Regala and Makalintal, JJ.,
concur.
Barrera and Dizon, JJ., took no part.

2. Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE
PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First
Instance of Southern Leyte, (Branch III, Maasin),
respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.



GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the
Court of First Instance of Southern Leyte, Branch III, in
Special Proceedings No. R-1713, entitled "In the Matter
of the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner", which denied
the probate of the will, the motion for reconsideration
and the motion for appointment of a special
administrator.

In the petition for probate filed with the respondent court,
the petitioner attached the alleged last will and testament
of the late Dorotea Perez. Written in the Cebuano-
Visayan dialect, the will consists of two pages. The first
page contains the entire testamentary dispositions and is
signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which
contains the attestation clause and the acknowledgment
is signed at the end of the attestation clause by the three
(3) attesting witnesses and at the left hand margin by the
testatrix.

Since no opposition was filed after the petitioner's
compliance with the requirement of publication, the trial
court commissioned the branch clerk of court to receive
the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified
on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C.
Pamatian issued the questioned order denying the
probate of the will of Dorotea Perez for want of a
formality in its execution. In the same order, the
petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so
that they could be properly notified and could intervene
in the summary settlement of the estate.

Instead of complying with the order of the trial court, the
petitioner filed a manifestation and/or motion, ex parte
praying for a thirty-day period within which to deliberate
on any step to be taken as a result of the disallowance of
the will. He also asked that the ten-day period required
by the court to submit the names of intestate heirs with
their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the
order denying the probate of the will. However, the
motion together with the previous manifestation and/or
motion could not be acted upon by the Honorable
Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents
were still pending resolution when respondent Judge
Avelino S. Rosal assumed the position of presiding
judge of the respondent court.

Meanwhile, the petitioner filed a motion for the
appointment of special administrator.

Subsequently, the new Judge denied the motion for
reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the
motion for the appointment of special administrator was
likewise denied because of the petitioner's failure to
comply with the order requiring him to submit the names
of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805
of the Civil Code require that the testatrix and all the
three instrumental and attesting witnesses sign at the
end of the will and in the presence of the testatrix and of
one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in
his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in
the presence of the testator and of one another.

The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the
upper part of each page.

The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the lacier witnesses and signed the
will and the pages thereof in the presence of the testator
and of one another.

If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to the witnesses, it shall
be interpreted to them.

The respondent Judge interprets the above-quoted
provision of law to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the
"end" but an the three subscribing witnesses must also
sign at the same place or at the end, in the presence of
the testatrix and of one another because the attesting
witnesses to a will attest not merely the will itself but also
the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article
805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the
extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at
the end of the wig after the signature of the testatrix. He
contends that it would be absurd that the legislature
intended to place so heavy an import on the space or
particular location where the signatures are to be found
as long as this space or particular location wherein the
signatures are found is consistent with good faith and
the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will
must be subscribed or signed at its end by the testator
himself or by the testator's name written by another
person in his presence, and by his express direction,
and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.

It must be noted that the law uses the terms attested and
subscribed Attestation consists in witnessing the
testator's execution of the will in order to see and take
note mentally that those things are, done which the
statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other
hand, subscription is the signing of the witnesses' names
upon the same paper for the purpose of Identification of
such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned,
it is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose
of Identification.

The signatures of the instrumental witnesses on the left
margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the
due execution of the will as embodied in the attestation
clause.

While perfection in the drafting of a will may be
desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of
the will is not assailed. (Gonzales v. Gonzales, 90 Phil.
444, 449).

The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the
law on wills in this project consists in the liberalization of
the manner of their execution with the end in view of
giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the
testator. This objective is in accord with the modern
tendency in respect to the formalities in the execution of
a will" (Report of the Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his
questioned order that were not for the defect in the place
of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully
met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary
dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be
the same will executed by the testatrix. There was no
question of fraud or substitution behind the questioned
order.

We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire wig that it is really and
actually composed of only two pages duly signed by the
testatrix and her instrumental witnesses. As earlier
stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses
signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation
clause and the acknowledgment. The acknowledgment
itself states that "This Last Will and Testament consists
of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this
Court made the following observations with respect to
the purpose of the requirement that the attestation
clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of
pages or sheets upon which the win is written, which
requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation
or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to
be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the
attestation clause must contain a statement of the
number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is
different. While the attestation clause does not state the
number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a
statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of
similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from
being defeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the
following ruling which applies a similar liberal approach:

... Impossibility of substitution of this page is assured not
only (sic) the fact that the testatrix and two other
witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by
testatrix and all three witnesses. The law should not be
so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single
witness over whose conduct she had no control where
the purpose of the law to guarantee the Identity of the
testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed,
and the evidence on record attests to the fun
observance of the statutory requisites. Otherwise, as
stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459,
at 1479 (decision on reconsideration) 'witnesses may
sabotage the will by muddling or bungling it or the
attestation clause.

WHEREFORE, the present petition is hereby granted.
The orders of the respondent court which denied the
probate of tile will, the motion for reconsideration of the
denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent
court is ordered to allow the probate of the wig and to
conduct further proceedings in accordance with this
decision. No pronouncement on costs.

SO ORDERED.

Melencio-Herrera (Acting Chairperson), Plana, Vasquez
and Relova, JJ., concur.

Teehankee, J, is on leave.

3.Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 122880 April 12, 2006

FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO
substituted by ERNESTO G. CASTILLO,
Respondents.

D E C I S I O N

TINGA, J.:

The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent),
who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of
this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of
notarial wills, all self-evident in view of Articles 805 and
806 of the Civil Code.

A will whose attestation clause does not contain the
number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed
by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain
an acknowledgment, but a mere jurat, is fatally defective.
Any one of these defects is sufficient to deny probate. A
notarial will with all three defects is just aching for judicial
rejection.

There is a distinct and consequential reason the Civil
Code provides a comprehensive catalog of imperatives
for the proper execution of a notarial will. Full and faithful
compliance with all the detailed requisites under Article
805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article
806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a
notary public by the testator and the witnesses. A
notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its
legitimacy.

The case stems from a petition for probate filed on 10
April 1984 with the Regional Trial Court (RTC) of Manila.
The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo,
which was notarized on 10 June 1981. Petitioner is the
son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the
vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San
Diego St., Sampaloc, Manila, pitongput siyam (79) na
gulang, nasa hustong pagi-isip, pag-unawa at memoria
ay nag-hahayag na ito na ang aking huling habilin at
testamento, at binabali wala ko lahat ang naunang
ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del
Norte, La Loma sang-ayong sa kaugalian at patakaran
ng simbahang katoliko at ang taga-pag-ingat (Executor)
ng habiling ito ay magtatayo ng bantayog upang silbing
ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat
ng karapatan sa aking pamangkin na si Felix Azuela, na
siyang nag-alaga sa akin sa mahabang panahon, yaong
mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na
nakatirik sa inoopahan kong lote, numero 43, Block 24
na pag-aari ng Pechaten Corporation. Ipinagkakaloob
kong buong buo ang lahat ng karapatan sa bahay at
lupa na nasa 500 San Diego St., Lot 42, Block 24,
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob
kong ito ay walang pasubalit at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na
siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang mag-
lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila
ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang
nabanggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawat dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb.
7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10,
1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their
signatures on the left-hand margin of both pages of the
will, but not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs,
legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was
alleged to have resided abroad. Petitioner prayed that
the will be allowed, and that letters testamentary be
issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo
(Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was
so it could be utilized as a defense in several court
cases filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all
centering on petitioners right to occupy the properties of
the decedent.3 It also asserted that contrary to the
representations of petitioner, the decedent was actually
survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per
records, it was subsequently alleged that decedent was
the widow of Bonifacio Igsolo, who died in 1965,4 and
the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was
not executed and attested to in accordance with law.
She pointed out that decedents signature did not appear
on the second page of the will, and the will was not
properly acknowledged. These twin arguments are
among the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an
Order dated 10 August 1992.6 The RTC favorably took
into account the testimony of the three (3) witnesses to
the will, Quirino Agrava, Lamberto Leano, and Juanito
Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of
a will x x x with the end in view of giving the testator
more freedom in expressing his last wishes;"7 and from
this perspective, rebutted oppositors arguments that the
will was not properly executed and attested to in
accordance with law.

After a careful examination of the will and consideration
of the testimonies of the subscribing and attesting
witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e.,
the liberalization of the interpretation of the law on the
formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last
wishes, this Court is persuaded to rule that the will in
question is authentic and had been executed by the
testatrix in accordance with law.

On the issue of lack of acknowledgement, this Court has
noted that at the end of the will after the signature of the
testatrix, the following statement is made under the sub-
title, "Patunay Ng Mga Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati
ang huling dahong ito, na ipinahayag sa amin ni Eugenia
N. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang
nabanggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawat dahon ng kasulatan ito."

The aforequoted declaration comprises the attestation
clause and the acknowledgement and is considered by
this Court as a substantial compliance with the
requirements of the law.

On the oppositors contention that the attestation clause
was not signed by the subscribing witnesses at the
bottom thereof, this Court is of the view that the signing
by the subscribing witnesses on the left margin of the
second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof,
substantially satisfies the purpose of identification and
attestation of the will.

With regard to the oppositors argument that the will was
not numbered correlatively in letters placed on upper
part of each page and that the attestation did not state
the number of pages thereof, it is worthy to note that the
will is composed of only two pages. The first page
contains the entire text of the testamentary dispositions,
and the second page contains the last portion of the
attestation clause and acknowledgement. Such being
so, the defects are not of a serious nature as to
invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the
attestation clause and acknowledgment is not a fatal
defect.

As regards the oppositors assertion that the signature of
the testatrix on the will is a forgery, the testimonies of the
three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of
the testatrix and the due execution of the will.8

The Order was appealed to the Court of Appeals by
Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision
dated 17 August 1995, the Court of Appeals reversed
the trial court and ordered the dismissal of the petition
for probate.9 The Court of Appeals noted that the
attestation clause failed to state the number of pages
used in the will, thus rendering the will void and
undeserving of probate.10

Hence, the present petition.

Petitioner argues that the requirement under Article 805
of the Civil Code that "the number of pages used in a
notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to
what he termed as "the substantial compliance rule."11

The solution to this case calls for the application of
Articles 805 and 806 of the Civil Code, which we
replicate in full.

Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person
in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.

The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the
upper part of each page.

The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.

If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one
defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the
will itself reveals several more deficiencies.

As admitted by petitioner himself, the attestation clause
fails to state the number of pages of the will.12 There
was an incomplete attempt to comply with this requisite,
a space having been allotted for the insertion of the
number of pages in the attestation clause. Yet the blank
was never filled in; hence, the requisite was left
uncomplied with.

The Court of Appeals pounced on this defect in
reversing the trial court, citing in the process Uy Coque
v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy
Coque, the Court noted that among the defects of the
will in question was the failure of the attestation clause to
state the number of pages contained in the will.15 In
ruling that the will could not be admitted to probate, the
Court made the following consideration which remains
highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is
obvious; the document might easily be so prepared that
the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence
of a statement of the total number of sheets such
removal might be effected by taking out the sheet and
changing the numbers at the top of the following sheets
or pages. If, on the other hand, the total number of
sheets is stated in the attestation clause the falsification
of the document will involve the inserting of new pages
and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much
greater difficulty."16

The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of
sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the
point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied
that the x x x requirement affords additional security
against the danger that the will may be tampered with;
and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the
Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state
the number of pages of the will. Yet the appellate court
itself considered the import of these two cases, and
made the following distinction which petitioner is unable
to rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will
readily show that the attestation does not state the
number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme
Court in "Manuel Singson versus Emilia Florentino, et
al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a
will may still be valid even if the attestation does not
contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court
are not applicable in the aforementioned appeal at
bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although
the attestation in the subject Will did not state the
number of pages used in the will, however, the same
was found in the last part of the body of the Will:

"x x x

The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of
pages or sheets upon which the will is written, which
requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation
or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to
be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs.
Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the
attestation clause must contain a statement of the
number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is
different. While the attestation clause does not state the
number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a
statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of
similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from
being defeated by purely technical considerations."
(page 165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al."
supra, the notarial acknowledgement in the Will states
the number of pages used in the:

"x x x

We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the
left margin. The other page which is marked as "Pagina
dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that
"this Last Will and Testament consists of two pages
including this page" (pages 200-201, supra)
(Underscoring supplied).

However, in the appeal at bench, the number of pages
used in the will is not stated in any part of the Will. The
will does not even contain any notarial acknowledgment
wherein the number of pages of the will should be
stated.21

Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of
wills was Section

618 of the Code of Civil Procedure.22 Reliance on these
cases remains apropos, considering that the
requirement that the attestation state the number of
pages of the will is extant from Section 618.23 However,
the enactment of the Civil Code in 1950 did put in force a
rule of interpretation of the requirements of wills, at least
insofar as the attestation clause is concerned, that may
vary from the philosophy that governed these two cases.
Article 809 of the Civil Code states: "In the absence of
bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was
in fact executed and attested in substantial compliance
with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil
Code Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the
[law] on [wills] in this project consists in the
[liberalization] of the manner of their execution with the
end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities
in the execution of wills."24 However, petitioner
conveniently omits the qualification offered by the Code
Commission in the very same paragraph he cites from
their report, that such liberalization be "but with sufficient
safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure
and influence upon the testator."25

Caneda v. Court of Appeals26 features an extensive
discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of
interpretation of the legal formalities required in the
execution of the attestation clause in wills.27 Uy Coque
and Andrada are cited therein, along with several other
cases, as examples of the application of the rule of strict
construction.28 However, the Code Commission opted
to recommend a more liberal construction through the
"substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L.
Reyes as to how Article 809 should be applied:

x x x The rule must be limited to disregarding those
defects that can be supplied by an examination of the
will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will
itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether
all persons required to sign did so in the presence of
each other must substantially appear in the attestation
clause, being the only check against perjury in the
probate proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by
Justice J.B.L. Reyes in its assailed decision, considering
that the failure to state the number of pages of the will in
the attestation clause is one of the defects which cannot
be simply disregarded. In Caneda itself, the Court
refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the
testator and of each other,30 the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be
lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule,
as it now stands, is that omission which can be supplied
by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence
aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself."31 Thus, a failure
by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can
be checked by a visual examination; while a failure by
the attestation clause to state that the witnesses signed
in one anothers presence should be considered a fatal
flaw since the attestation is the only textual guarantee of
compliance.32

The failure of the attestation clause to state the number
of pages on which the will was written remains a fatal
flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on
which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages.33 The
failure to state the number of pages equates with the
absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the
execution of which they had ostensibly just witnessed
and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised
of, as was the situation in Singson and Taboada.
However, in this case, there could have been no
substantial compliance with the requirements under
Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of
pages which comprise the will.

At the same time, Article 809 should not deviate from the
need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations
of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw
fit to prescribe substantially the same formal requisites
as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however
picayune in impression, affords the public a high degree
of comfort that the testator himself or herself had
decided to convey property post mortem in the manner
established in the will.35 The transcendent legislative
intent, even as expressed in the cited comments of the
Code Commission, is for the fruition of the testators
incontestable desires, and not for the indulgent
admission of wills to probate.

The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself
reveals a couple of even more critical defects that should
necessarily lead to its rejection.

For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of
the will, they do not appear at the bottom of the
attestation clause which after all consists of their
averments before the notary public.

Cagro v. Cagro36 is material on this point. As in this
case, "the signatures of the three witnesses to the will do
not appear at the bottom of the attestation clause,
although the page containing the same is signed by the
witnesses on the left-hand margin."37 While three (3)
Justices38 considered the signature requirement had
been substantially complied with, a majority of six (6),
speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering
the will fatally defective.

There is no question that the signatures of the three
witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the
appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the
will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation.

The petitioner and appellee contends that signatures of
the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will
on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.39

The Court today reiterates the continued efficacy of
Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each
page of the will, from the requisite that the will be
"attested and subscribed by [the instrumental
witnesses]." The respective intents behind these two
classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the
page they are signing forms part of the will. On the other
hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the
disposition of the will. An unsigned attestation clause
results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly
different avowal.

The Court may be more charitably disposed had the
witnesses in this case signed the attestation clause
itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the
instrumental witnesses signatures on each and every
page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into
writing of the testamentary witnesses themselves. It is
the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used
upon which the will is written; the fact that the testator
had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated
these elemental facts would be their signatures on the
attestation clause.

Thus, the subject will cannot be considered to have been
validly attested to by the instrumental witnesses, as they
failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the
denial of this petition should also hinge. The requirement
under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses"
has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been
segregated from the other requirements under Article
805 and entrusted into a separate provision, Article 806.
The non-observance of Article 806 in this case is equally
as critical as the other cited flaws in compliance with
Article 805, and should be treated as of equivalent
import.

In lieu of an acknowledgment, the notary public, Petronio
Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong
10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila."40 By no manner of contemplation can those
words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a
deed in going before some competent officer or court
and declaring it to be his act or deed.41 It involves an
extra step undertaken whereby the signor actually
declares to the notary that the executor of a document
has attested to the notary that the same is his/her own
free act and deed.

It might be possible to construe the averment as a jurat,
even though it does not hew to the usual language
thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was
subscribed and sworn to by the executor.42 Ordinarily,
the language of the jurat should avow that the document
was subscribed and sworn before the notary public,
while in this case, the notary public averred that he
himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses
the signing of and swearing in of the executors of the
document, which in this case would involve the decedent
and the instrumental witnesses.

Yet even if we consider what was affixed by the notary
public as a jurat, the will would nonetheless remain
invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed
and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and
the instrumental witnesses executed or signed the will as
their own free act or deed. The acknowledgment made
in a will provides for another all-important legal
safeguard against spurious wills or those made beyond
the free consent of the testator. An acknowledgement is
not an empty meaningless act.43 The acknowledgment
coerces the testator and the instrumental witnesses to
declare before an officer of the law that they had
executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain
of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious
wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance
that the testator is of certain mindset in making the
testamentary dispositions to those persons he/she had
designated in the will.

It may not have been said before, but we can assert the
rule, self-evident as it is under Article 806. A notarial will
that is not acknowledged before a notary public by the
testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.

There are two other requirements under Article 805
which were not fully satisfied by the will in question. We
need not discuss them at length, as they are no longer
material to the

disposition of this case. The provision requires that the
testator and the instrumental witnesses sign each and
every page of the will on the left margin, except the last;
and that all the pages shall be numbered correlatively in
letters placed on the upper part of each page. In this
case, the decedent, unlike the witnesses, failed to sign
both pages of the will on the left margin, her only
signature appearing at the so-called "logical end"44 of
the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but
instead numbered with Arabic numerals. There is a line
of thought that has disabused the notion that these two
requirements be construed as mandatory.45 Taken in
isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these
omissions are not decisive to the adjudication of this
case, they need not be dwelt on, though indicative as
they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the
will.

All told, the string of mortal defects which the will in
question suffers from makes the probate denial
inexorable.

WHEREFORE, the petition is DENIED. Costs against
petitioner.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO CONCHITA
Associate Justice CARPIO MORALES
Asscociate Justice
A T T E S T A T I O N

I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Courts
Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution,
and the Division Chairpersons Attestation, it is hereby
certified that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Courts
Division.

ARTEMIO V. PANGANIBAN
Chief Justice

4. Republic of the Philippines
SUPREME COURT
Manila

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.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.



REGALADO, J.:

Presented for resolution by this Court in the present
petition for review on certiorari is the issue of whether or
not the attestation clause contained in the last will and
testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of
the Civil Code.

The records show that on December 5, 1978, Mateo
Caballero, a widower without any children and already in
the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio
Cabando and Flaviano Toregosa. The said testator was
duly assisted by his lawyer, Atty. Emilio Lumontad, and a
notary public, Atty. Filoteo Manigos, in the preparation of
that last will. 1 It was declared therein, among other
things, that the testator was leaving by way of legacies
and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo,
Isabelito Abatayo, Benoni G. Cabrera and Marcosa
Alcantara, all of whom do not appear to be related to the
testator. 2

Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding
No. 3899-R before Branch II of the then Court of First
Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing
on August 20, 1979 but the same and subsequent
scheduled hearings were postponed for one reason to
another. On May 29, 1980, the testator passed away
before his petition could finally be heard by the probate
court. 3 On February 25, 1981, Benoni Cabrera, on of
the legatees named in the will, sough his appointment as
special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was
so appointed by the probate court in its order of March 6,
1981. 4

Thereafter, herein petitioners, claiming to be nephews
and nieces of the testator, instituted a second petition,
entitled "In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No.
3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition intestate proceeding
consolidated with Special Proceeding No. 3899-R in
Branch II of the Court of First Instance of Cebu and
opposed thereat the probate of the Testator's will and
the appointment of a special administrator for his estate.
5

Benoni Cabrera died on February 8, 1982 hence the
probate court, now known as Branch XV of the Regional
Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on
July 20, 1983, it issued an order for the return of the
records of Special Proceeding No. 3965-R to the
archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26,
1984 the case was reraffled and eventually assigned to
Branch XII of the Regional Trial Court of Cebu where it
remained until the conclusion of the probate
proceedings. 6

In the course of the hearing in Special Proceeding No.
3899-R, herein petitioners appeared as oppositors and
objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the
testator was already in the poor state of health such that
he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the
genuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses,
Cipriano Labuca, and the notary public Atty. Filoteo
Manigos, testified that the testator executed the will in
question in their presence while he was of sound and
disposing mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good health and was
not unduly influenced in any way in the execution of his
will. Labuca also testified that he and the other
witnesses attested and signed the will in the presence of
the testator and of each other. The other two attesting
witnesses were not presented in the probate hearing as
the had died by then. 8

On April 5, 1988, the probate court rendered a decision
declaring the will in question as the last will and
testament of the late Mateo Caballero, on the
ratiocination that:

. . . The self-serving testimony of the two witnesses of
the oppositors cannot overcome the positive testimonies
of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked
Exhibit "C" on December 5, 1978. Moreover, the fact that
it was Mateo Caballero who initiated the probate of his
Will during his lifetime when he caused the filing of the
original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will.
At the start, counsel for the oppositors manifested that
he would want the signature of Mateo Caballero in
Exhibit "C" examined by a handwriting expert of the NBI
but it would seem that despite their avowal and intention
for the examination of this signature of Mateo Caballero
in Exhibit "C", nothing came out of it because they
abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for
the oppositors.

All told, it is the finding of this Court that Exhibit "C" is
the Last Will and Testament of Mateo Caballero and that
it was executed in accordance with all the requisites of
the law. 9

Undaunted by the said judgment of the probate court,
petitioners elevated the case in the Court of Appeals in
CA-G.R. CV No. 19669. They asserted therein that the
will in question is null and void for the reason that its
attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the
will witnessed the testator signing the will in their
presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one
another.

On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that
the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code,
thus:

The question therefore is whether the attestation clause
in question may be considered as having substantialy
complied with the requirements of Art. 805 of the Civil
Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the
testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in
letters of the upper part of each page, as his Last Will
and Testament, and he has signed the same and every
page thereof, on the spaces provided for his signature
and on the left hand margin in the presence of the said
testator and in the presence of each and all of us
(emphasis supplied).

To our thinking, this is sufficient compliance and no
evidence need be presented to indicate the meaning that
the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one
another. Or as the language of the law would have it that
the testator signed the will "in the presence of the
instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence
of the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art.
805 but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said
ruling of respondent court, but the same was denied in
the latter's resolution of January 14, 1992, 12 hence this
appeal now before us. Petitioners assert that respondent
court has ruled upon said issue in a manner not in
accord with the law and settled jurisprudence on the
matter and are now questioning once more, on the same
ground as that raised before respondent court, the
validity of the attestation clause in the last will of Mateo
Caballero.

We find the present petition to be meritorious, as we
shall shortly hereafter, after some prefatory observations
which we feel should be made in aid of the rationale for
our resolution of the controversy.

1. A will has been defined as a species of conveyance
whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate after his death. 13 Under the
Civil Code, there are two kinds of wills which a testator
may execute. 14 the first kind is the ordinary or attested
will, the execution of which is governed by Articles 804
to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person
in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.

The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the
upper part of each page.

The attestation should state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.

If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.

In addition, the ordinary will must be acknowledged
before a notary public by a testator and the attesting
witness. 15 hence it is likewise known as notarial will.
Where the attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if able to
do so. Otherwise, he should designate two persons who
would read the will and communicate its contents to him
in a practicable manner. On the other hand, if the
testator is blind, the will should be read to him twice;
once, by anyone of the witnesses thereto, and then
again, by the notary public before whom it is
acknowledged. 16

The other kind of will is the holographic will, which Article
810 defines as one that is entirely written, dated, and
signed by the testator himself. This kind of will, unlike the
ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of will is that they
should be in writing and must have been executed in a
language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its
attestation clause need not be written in a language or
dialect known to the testator since it does not form part
of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need
not even be known to the attesting witnesses. 18 The
last paragraph of Article 805 merely requires that, in
such a case, the attestation clause shall be interpreted
to said witnesses.

An attestation clause refers to that part of an ordinary
will whereby the attesting witnesses certify that the
instrument has been executed before them and to the
manner of the execution the same. 19 It is a separate
memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses,
it gives affirmation to the fact that compliance with the
essential formalities required by law has been observed.
20 It is made for the purpose of preserving in a
permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of
the memory of the attesting witnesses, or other casualty,
such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause,
the complete lack of which would result in the invalidity
of the will, 22 should state (1) the number of the pages
used upon which the will is written; (2) that the testator
signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed
the signing by the testator of the will and all its pages,
and that 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. 24

Further, by attesting and subscribing to the will, the
witnesses thereby declare the due execution of the will
as embodied in the attestation clause. 25 The attestation
clause, therefore, provide strong legal guaranties for the
due execution of a will and to insure the authenticity
thereof. 26 As it appertains only to the witnesses and not
to the testator, it need be signed only by them. 27 Where
it is left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the clause
on a subsequent occasion in the absence of the testator
and its witnesses. 28

In its report, the Code Commission commented on the
reasons of the law for requiring the formalities to be
followed in the execution of wills, in the following
manner:

The underlying and fundamental objectives permeating
the provisions on the law on wills in this Project consists
in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards
and restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and
influence upon the testator.

This objective is in accord with the modern tendency
with respect to the formalities in the execution of wills. . .
. 29

2. An examination of the last will and testament of Mateo
Caballero shows that it is comprised of three sheets all
of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective
signatures of the testator and the three attesting
witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-
Visayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other
hand, is recited in the English language and is likewise
signed at the end thereof by the three attesting
witnesses hereto. 30 Since it is the proverbial bone of
contention, we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose
Residences and postal addresses appear on the
Opposite of our respective names, we do hereby certify
that the Testament was read by him and the testator,
MATEO CABALLERO; has published unto us the
foregoing Will consisting of THREE PAGES, including
the Acknowledgment, each page numbered correlatively
in the letters on the upper part of each page, as his Last
Will and Testament and he has the same and every
page thereof, on the spaces provided for his signature
and on the left hand margin, in the presence of the said
testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness
should both attest and subscribe to the will in the
presence of the testator and of one another. "Attestation"
and "subscription" differ in meaning. Attestation is the
act of senses, while subscription is the act of the hand.
The former is mental, the latter mechanical, and to attest
a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will
is only to write on the same paper the names of the
witnesses, for the sole purpose of identification. 31

In Taboada vs. Rizal, 32 we clarified that attestation
consists in witnessing the testator's execution of the will
in order to see and take note mentally that those things
are done which the statute requires for the execution of
a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose
of identification of such paper as the will which was
executed by the testator. As it involves a mental act,
there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses
had indeed signed in the presence of the testator and of
each other unless this is substantially expressed in the
attestation.

It is contended by petitioners that the aforequoted
attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the
Civil Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses the testator
sign the will and all its pages in their presence and that
they, the witnesses, likewise signed the will and every
page thereof in the presence of the testator and of each
other. We agree.

What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses
and states as well the number of pages that were used,
the same does not expressly state therein the
circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the
testator and of each other.

The phrase "and he has signed the same and every
page thereof, on the spaces provided for his signature
and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is
immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each
and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase
immediately follows the words "he has signed the same
and every page thereof, on the spaces provided for his
signature and on the left hand margin." What is then
clearly lacking, in the final logical analysis , is the
statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one
another.

It is our considered view that the absence of that
statement required by law is a fatal defect or
imperfection which must necessarily result in the
disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing
out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving
the form of the will or the language used therein which
would warrant the application of the substantial
compliance rule, as contemplated in the pertinent
provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it
is not proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of
each page by the three attesting witnesses, it certainly
cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the
presence of the testator and of each other since, as
petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses
did subscribe to the will in the presence of the testator
and of each other. The execution of a will is supposed to
be one act so that where the testator and the witnesses
sign on various days or occasions and in various
combinations, the will cannot be stamped with the
imprimatur of effectivity. 33

We believe that the further comment of former Justice
J.B.L. Reyes 34 regarding Article 809, wherein he urged
caution in the application of the substantial compliance
rule therein, is correct and should be applied in the case
under consideration, as well as to future cases with
similar questions:

. . . The rule must be limited to disregarding those
defects that can be supplied by an examination of the
will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three
or the will was notarized. All theses are facts that the will
itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether
all persons required to sign did so in the presence of
each other must substantially appear in the attestation
clause, being the only check against perjury in the
probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the
defects and imperfections must only be with respect to
the form of the attestation or the language employed
therein. Such defects or imperfections would not render
a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In
this regard, however, the manner of proving the due
execution and attestation has been held to be limited to
merely an examination of the will itself without resorting
to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the
attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the testator and of each other. 35 In such a
situation, the defect is not only in the form or language of
the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated
in the attestation clause of a will. That is precisely the
defect complained of in the present case since there is
no plausible way by which we can read into the
questioned attestation clause statement, or an
implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and
all of its pages and that said instrumental witnesses also
signed the will and every page thereof in the presence of
the testator and of one another.

Furthermore, the rule on substantial compliance in
Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the
attestation clause can be cured or supplied by the text of
the will or a consideration of matters apparent therefrom
which would provide the data not expressed in the
attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied
within the execution of the will. In other words, defects
must be remedied by intrinsic evidence supplied by the
will itself.

In the case at bar, contrarily, proof of the acts required to
have been performed by the attesting witnesses can be
supplied by only extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no
basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby
resorting to extrinsic evidence to prove the same and
would accordingly be doing by the indirection what in law
he cannot do directly.

4. Prior to the advent of the Civil Code on August 30,
1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving
issues centering on compliance with the legal formalities
required in the execution of wills. The formal
requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure.
Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act. No.
190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance
rule. This was first laid down in the case of Abangan vs.
Abangan, 36 where it was held that the object of the
solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will, hence when an interpretation already given
assures such ends, any other interpretation whatsoever
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last
will, must be disregarded. The subsequent cases of
Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs.
Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel
de Dios, et al., 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, 46 and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al., 48 provided the Court with
the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of
Gumban, the attestation clause had failed to state that
the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator.
The will in question was disallowed, with these reasons
therefor:

In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of
this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re
Will of Andrada [1921], 42 Phil., 180), Uy Coque vs.
Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with Sano
vs. Quintana ([1925], 48 Phil., 506). Appellee counters
with the citation of a series of cases beginning with
Abangan vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378), and
Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922),
and culminating in Nayve vs. Mojal and Aguilar ([1924],
47 Phil., 152). In its last analysis, our task is to contrast
and, if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana,
supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided
that an attestation clause which does not recite that the
witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator
is defective, and such a defect annuls the will. The case
of Uy Coque vs. Sioca, supra, was cited, but the case of
Nayve vs. Mojal and Aguilar, supra, was not mentioned.
In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation
clause must estate the fact that the testator and the
witnesses reciprocally saw the signing of the will, for
such an act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also held that the
fact that the testator and the witnesses signed each and
every page of the will can be proved also by the mere
examination of the signatures appearing on the
document itself, and the omission to state such evident
facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in doctrine.
Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the
other, we reverse.

In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place,
the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two
strong dissenting opinions; the Quintana decision was
concurred in by seven members of the court, a clear
majority, with one formal dissent. In the second place,
the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in
December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the
Quintana decision is believed more nearly to conform to
the applicable provisions of the law.

The right to dispose of property by will is governed
entirely by statute. The law of the case is here found in
section 61 of the Code of Civil Procedure as amended
by Act No. 2645, and in section 634 of the same Code,
as unamended. It is in part provided in section 61, as
amended that "No will . . . shall be valid . . . unless . . .."
It is further provided in the same section that "The
attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of three witnesses,
and the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of each
other." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not
executed and attested as in this Act provided." The law
not alone carefully makes use of the imperative, but
cautiously goes further and makes use of the negative,
to enforce legislative intention. It is not within the
province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano
vs. Quintana, supra, and, to the extent necessary,
modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there
were decisions of the Court that once more appeared to
revive the seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs. Morata, 49
Rodriguez vs. Alcala, 50 Enchevarria 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, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs.
Liboro, 64 veered away from the strict interpretation rule
and established a trend toward an application of the
liberal view.

The Code Commission, cognizant of such a conflicting
welter of views and of the undeniable inclination towards
a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to
be in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus
became what is now Article 809 of the Civil Code, with
this explanation of the Code Commission:

The present law provides for only one form of executing
a will, and that is, in accordance with the formalities
prescribed by Section 618 of the Code of Civil Procedure
as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance
with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure,
as amended regarding the contents of the attestation
clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily restrained the freedom of
the testator in disposing of his property.

However, in recent years the Supreme Court changed its
attitude and has become more liberal in the
interpretation of the formalities in the execution of wills.
This liberal view is enunciated in the cases of Rodriguez
vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs.
Martir, G.R. No. 46995, June 21, 1940; and Alcala vs.
Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court,
it has practically gone back to the original provisions of
Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn
this attitude into a legislative declaration and to attain the
main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the
Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it
is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of
article 829." 65

The so-called liberal rule, the Court said in Gil vs.
Murciano, 66 "does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The
later decisions do tell us when and where to stop; they
draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document
or supply missing details that should appear in the will
itself. They only permit a probe into the will, an
exploration into its confines, to ascertain its meaning or
to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is
that omissions which can be supplied by an examination
of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of
the will itself. 67

WHEREFORE, the petition is hereby GRANTED and the
impugned decision of respondent court is hereby
REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the
Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the matter
of the Intestate Estate of Mateo Caballero) as an active
case and thereafter duly proceed with the settlement of
the estate of the said decedent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ.,
concur.

5. Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION



G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding
Judge of Branch I, Court of First Instance of Cebu,
and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.



ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court
First Instance of Cebu 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 decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said
instrument was execute without the testator having been
fully informed of the content thereof, particularly as to
what properties he was disposing and 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
Hence this appeal by certiorari which was given due
course.

The only question presented for determination, on which
the decision of the case hinges, is whether the supposed
last will and testament of Valente Z. Cruz (Exhibit "E")
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.

Of the three instrumental witnesses thereto, namely
Deogracias T. Jamaloas Jr., Dr. Francisco Paares and
Atty. Angel H. Teves, Jr., one of them, the last named, 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, bolstering up his
stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a
will as against the purely technical reason that one of the
witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the
parties, We are inclined to sustain that of the appellant
that 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 80 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.

FOR ALL THE FOREGOING, the judgment appealed
from is hereby reversed and the probate of the last will
and testament of Valente Z. Cruz (Exhibit "E") is
declared not valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and
Muoz Palma, JJ., concur.




7.

THIRD DIVISION


LETICIA VALMONTE ORTEGA, G.R. No.
157451
Petitioner,
Present:

Panganiban, J.,
Chairman,
- versus - Sandoval-
Gutierrez,
Corona,
Carpio Morales, and
Garcia, JJ

JOSEFINA C. VALMONTE,
Promulgated:
Respondent.
December 16, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --
-- -- x


DECISION


PANGANIBAN, J.:


The law favors the probate of a will. Upon those who
oppose it rests the burden of showing why it should not
be allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the
Court cannot attribute any reversible error on the part of
the appellate tribunal that allowed the probate of the will.

The Case

Before the Court is a Petition for Review[1] under Rule
45 of the Rules of Court, seeking to reverse and set
aside the December 12, 2002 Decision[2] and the March
7, 2003 Resolution[3] of the Court of Appeals (CA) in
CA-GR CV No. 44296. The assailed Decision disposed
as follows:

WHEREFORE, the appeal is GRANTED, and the
Decision appealed from is REVERSED and SET ASIDE.
In its place judgment is rendered approving and allowing
probate to the said last will and testament of Placido
Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let
this case be remanded to the court a quo for further and
concomitant proceedings.[4]



The assailed Resolution denied petitioners Motion for
Reconsideration.

The Facts

The facts were summarized in the assailed Decision of
the CA, as follows:

x x x: Like so many others before him, Placido toiled
and lived for a long time in the United States until he
finally reached retirement. In 1980, Placido finally came
home to stay in the Philippines, and he lived in the
house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his
sister Ciriaca Valmonte and titled in their names in TCT
123468. Two years after his arrival from the United
States and at the age of 80 he wed Josefina who was
then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little
more than two years of wedded bliss, Placido died on
October 8, 1984 of a cause written down as COR
PULMONALE.

Placido executed a notarial last will and testament
written in English and consisting of two (2) pages, and
dated June 15, 1983 but acknowledged only on August
9, 1983. The first page contains the entire testamentary
dispositions and a part of the attestation clause, and was
signed at the end or bottom of that page by the testator
and on the left hand margin by the three instrumental
witnesses. The second page contains the continuation
of the attestation clause and the acknowledgment, and
was signed by the witnesses at the end of the attestation
clause and again on the left hand margin. It provides in
the body that:

LAST WILL AND TESTAMENT OF PLACIDO
VALMONTE IN THE NAME OF THE LORD AMEN:

I, PLACIDO VALMONTE, of legal age, married to
Josefina Cabansag Valmonte, and a resident of 9200
Catmon Street, Makati, Metro Manila, 83 years of age
and being of sound and disposing mind and memory, do
hereby declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery,
under the auspices of the Catholic Church in accordance
with the rites and said Church and that a suitable
monument to be erected and provided my by executrix
(wife) to perpetuate my memory in the minds of my
family and friends;

2. I give, devise and bequeath unto my loving wife,
JOSEFINA C. VALMONTE, one half (1/2) portion of the
follow-described properties, which belongs to me as [co-
owner]:

a. Lot 4-A, Block 13 described on plan Psd-28575,
LRC, (GLRO), situated in Makati, Metro Manila,
described and covered by TCT No. 123468 of the
Register of Deeds of Pasig, Metro-Manila registered
jointly as co-owners with my deceased sister (Ciriaca
Valmonte), having share and share alike;

b. 2-storey building standing on the above-described
property, made of strong and mixed materials used as
my residence and my wife and located at No. 9200
Catmon Street, Makati, Metro Manila also covered by
Tax Declaration No. A-025-00482, Makati, Metro-Manila,
jointly in the name of my deceased sister, Ciriaca
Valmonte and myself as co-owners, share and share
alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and
personal properties, including my savings account bank
book in USA which is in the possession of my nephew,
and all others whatsoever and wherever found, I give,
devise and bequeath to my said wife, Josefina C.
Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as
sole executrix of my last will and testament, and it is my
will that said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand
this 15th day of June 1983 in Quezon City, Philippines.


The allowance to probate of this will was opposed by
Leticia on the grounds that:

1. Petitioner failed to allege all assets
of the testator, especially those found in the USA;

2. Petitioner failed to state the names,
ages, and residences of the heirs of the testator; or to
give them proper notice pursuant to law;

3. Will was not executed and attested as required by
law and legal solemnities and formalities were not
complied with;

4. Testator was mentally incapable to make a will at
the time of the alleged execution he being in an advance
sate of senility;

5. Will was executed under duress, or the influence of
fear or threats;

6. Will was procured by undue and improper
influence and pressure on the part of the petitioner
and/or her agents and/or assistants; and/or

7. Signature of testator was procured by fraud, or
trick, and he did not intend that the instrument should be
his will at the time of affixing his signature thereto;


and she also opposed the appointment as Executrix of
Josefina alleging her want of understanding and
integrity.

At the hearing, the petitioner Josefina testified and
called as witnesses the notary public Atty. Floro
Sarmiento who prepared and notarized the will, and the
instrumental witnesses spouses Eugenio Gomez, Jr. and
Feliza Gomez and Josie Collado. For the opposition, the
oppositor Leticia and her daughter Mary Jane Ortega
testified.

According to Josefina after her marriage with the
testator they lived in her parents house at Salingcob,
Bacnotan, La Union but they came to Manila every
month to get his $366.00 monthly pension and stayed at
the said Makati residence. There were times though
when to shave off on expenses, the testator would travel
alone. And it was in one of his travels by his lonesome
self when the notarial will was made. The will was
witnessed by the spouses Eugenio and Feliza Gomez,
who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of
the last will and testament of her husband, but just
serendipitously found it in his attache case after his
death. It was only then that she learned that the testator
bequeathed to her his properties and she was named
the executrix in the said will. To her estimate, the value
of property both real and personal left by the testator is
worth more or less P100,000.00. Josefina declared too
that the testator never suffered mental infirmity because
despite his old age he went alone to the market which is
two to three kilometers from their home cooked and
cleaned the kitchen and sometimes if she could not
accompany him, even traveled to Manila alone to claim
his monthly pension. Josefina also asserts that her
husband was in good health and that he was
hospitalized only because of a cold but which eventually
resulted in his death.

Notary Public Floro Sarmiento, the notary public who
notarized the testators will, testified that it was in the first
week of June 1983 when the testator together with the
three witnesses of the will went to his house cum law
office and requested him to prepare his last will and
testament. After the testator instructed him on the terms
and dispositions he wanted on the will, the notary public
told them to come back on June 15, 1983 to give him
time to prepare it. After he had prepared the will the
notary public kept it safely hidden and locked in his
drawer. The testator and his witnesses returned on the
appointed date but the notary public was out of town so
they were instructed by his wife to come back on August
9, 1983, and which they did. Before the testator and his
witnesses signed the prepared will, the notary public
explained to them each and every term thereof in
Ilocano, a dialect which the testator spoke and
understood. He likewise explained that though it
appears that the will was signed by the testator and his
witnesses on June 15, 1983, the day when it should
have been executed had he not gone out of town, the
formal execution was actually on August 9, 1983. He
reasoned that he no longer changed the typewritten date
of June 15, 1983 because he did not like the document
to appear dirty. The notary public also testified that to
his observation the testator was physically and mentally
capable at the time he affixed his signature on the will.

The attesting witnesses to the will corroborated the
testimony of the notary public, and testified that the
testator went alone to the house of spouses Eugenio
and Feliza Gomez at GSIS Village, Quezon City and
requested them to accompany him to the house of Atty.
Floro Sarmiento purposely for his intended will; that after
giving his instructions to Atty. Floro Sarmiento, they were
told to return on June 15, 1983; that they returned on
June 15, 1983 for the execution of the will but were
asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator
executed the will in question in their presence while he
was of sound and disposing mind and that he was strong
and in good health; that the contents of the will was
explained by the notary public in the Ilocano and
Tagalog dialect and that all of them as witnesses
attested and signed the will in the presence of the
testator and of each other. And that during the
execution, the testators wife, Josefina was not with
them.

The oppositor Leticia declared that Josefina should not
inherit alone because aside from her there are other
children from the siblings of Placido who are just as
entitled to inherit from him. She attacked the mental
capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83
years old and was no longer of sound mind. She knew
whereof she spoke because in 1983 Placido lived in the
Makati residence and asked Leticias family to live with
him and they took care of him. During that time, the
testators physical and mental condition showed
deterioration, aberrations and senility. This was
corroborated by her daughter Mary Jane Ortega for
whom Placido took a fancy and wanted to marry.

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

1. Non-compliance with the legal solemnities and
formalities in the execution and attestation of the will;
and

2. Mental incapacity of the testator at the time of the
execution of the will as he was then in an advanced
state of senility

It then found these grounds extant and proven,
and accordingly disallowed probate.[5]




Ruling of the Court of Appeals

Reversing the trial court, the appellate court
admitted the will of Placido Valmonte to probate. The
CA upheld the credibility of the notary public and the
subscribing witnesses who had acknowledged the due
execution of the will. Moreover, it held that the testator
had testamentary capacity at the time of the execution of
the will. It added that his sexual exhibitionism and
unhygienic, crude and impolite ways[6] did not make
him a person of unsound mind.

Hence, this Petition.[7]


Issues

Petitioner raises the following issues for our
consideration:

I.

Whether or not the findings of the probate court are
entitled to great respect.

II.

Whether or not the signature of Placido Valmonte in the
subject will was procured by fraud or trickery, and that
Placido Valmonte never intended that the instrument
should be his last will and testament.

III.

Whether or not Placido Valmonte has testamentary
capacity at the time he allegedly executed the subject
will.[8]



In short, petitioner assails the CAs allowance of the
probate of the will of Placido Valmonte.


This Courts Ruling

The Petition has no merit.


Main Issue:
Probate of a Will

At the outset, we stress that only questions of law may
be raised in a Petition for Review under Section 1 of
Rule 45 of the Rules of Court. As an exception,
however, the evidence presented during the trial may be
examined and the factual matters resolved by this Court
when, as in the instant case, the findings of fact of the
appellate court differ from those of the trial court.[9]

The fact that public policy favors the probate of a will
does not necessarily mean that every will presented for
probate should be allowed. The law lays down the
procedures and requisites that must be satisfied for the
probate of a will.[10] Verily, Article 839 of the Civil Code
states the instances when a will may be disallowed, as
follows:

Article 839. The will shall be disallowed in any of the
following cases:

(1) If the formalities required by law have not been
complied with;

(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;

(3) If it was executed through force or under duress,
or the influence of fear, or threats;

(4) If it was procured by undue and improper
pressure and influence, on the part of the beneficiary or
of some other person;

(5) If the signature of the testator was procured by
fraud;

(6) If the testator acted by mistake or did not intend
that the instrument he signed should be his will at the
time of affixing his signature thereto.

In the present case, petitioner assails the validity
of Placido Valmontes will by imputing fraud in its
execution and challenging the testators state of mind at
the time.


Existence of Fraud in the
Execution of a Will

Petitioner does not dispute the due observance of
the formalities in the execution of the will, but maintains
that the circumstances surrounding it are indicative of
the existence of fraud. Particularly, she alleges that
respondent, who is the testators wife and sole
beneficiary, conspired with the notary public and the
three attesting witnesses in deceiving Placido to sign it.
Deception is allegedly reflected in the varying dates of
the execution and the attestation of the will.

Petitioner contends that it was highly dubious for a
woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] Fil-
American pensionado,[11] thus casting doubt on the
intention of respondent in seeking the probate of the will.
Moreover, it supposedly defies human reason, logic and
common experience[12] for an old man with a severe
psychological condition to have willingly signed a last will
and testament.

We are not convinced. Fraud is a trick, secret
device, false statement, or pretense, by which the
subject of it is cheated. It may be of such character that
the testator is misled or deceived as to the nature or
contents of the document which he executes, or it may
relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a
certain will which, but for the fraud, he would not have
made.[13]

We stress that the party challenging the will bears the
burden of proving the existence of fraud at the time of its
execution.[14] The burden to show otherwise shifts to
the proponent of the will only upon a showing of credible
evidence of fraud.[15] Unfortunately in this case, other
than the self-serving allegations of petitioner, no
evidence of fraud was ever presented.

It is a settled doctrine that the omission of some relatives
does not affect the due execution of a will.[16] That the
testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife,
who was more than fifty years his junior, as the sole
beneficiary; and disregarded petitioner and her family,
who were the ones who had taken the cudgels of taking
care of [the testator] in his twilight years.[17]

Moreover, as correctly ruled by the appellate court, the
conflict between the dates appearing on the will does not
invalidate the document, because the law does not
even require that a [notarial] will x x x be executed and
acknowledged on the same occasion.[18] More
important, the will must be subscribed by the testator, as
well as by three or more credible witnesses who must
also attest to it in the presence of the testator and of one
another.[19] Furthermore, the testator and the
witnesses must acknowledge the will before a notary
public.[20] In any event, we agree with the CA that the
variance in the dates of the will as to its supposed
execution and attestation was satisfactorily and
persuasively explained by the notary public and the
instrumental witnesses.[21]

The pertinent transcript of stenographic notes taken on
June 11, 1985, November 25, 1985, October 13, 1986,
and October 21, 1987 -- as quoted by the CA -- are
reproduced respectively as follows:

Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the
date June 15 when the testator and his witnesses were
supposed to be in your office?
A Yes sir.

Q On June 15, 1983, did the testator and his
witnesses come to your house?
A They did as of agreement but unfortunately, I was
out of town.

x x x x x x x x x

Q The document has been acknowledged on August
9, 1983 as per acknowledgement appearing therein.
Was this the actual date when the document was
acknowledged?
A Yes sir.

Q What about the date when the testator and the
three witnesses affixed their respective signature on the
first and second pages of exhibit C?
A On that particular date when it was acknowledged,
August 9, 1983.

Q Why did you not make the necessary correction on
the date appearing on the body of the document as well
as the attestation clause?
A Because I do not like anymore to make some
alterations so I put it in my own handwriting August 9,
1983 on the acknowledgement. (tsn, June 11, 1985, pp.
8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is
dated June 15, 1983, whereas in the acknowledgement
it is dated August 9, 1983, will you look at this document
and tell us this discrepancy in the date?
A We went to Atty. Sarmiento together with Placido
Valmonte and the two witnesses; that was first week of
June and Atty. Sarmiento told us to return on the 15th of
June but when we returned, Atty. Sarmiento was not
there.

Q When you did not find Atty. Sarmiento on June 15,
1983, did you again go back?
A We returned on the 9th of August and there we
signed.

Q This August 9, 1983 where you said it is there
where you signed, who were your companions?
A The two witnesses, me and Placido Valmonte.
(tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro
Sarmiento, three times?

x x x x x x x x x

A The reason why we went there three times is that,
the first week of June was out first time. We went there
to talk to Atty. Sarmiento and Placido Valmonte about
the last will and testament. After that what they have
talked what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of
June. When we returned on June 15, Atty. Sarmiento
was not there so we were not able to sign it, the will.
That is why, for the third time we went there on August 9
and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house
on June 15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be
back on August 9, 1983.

Q And on August 9, 1983 did you go back to the
house of Atty. Sarmiento?
A Yes, Sir.

Q For what purpose?
A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)[22]

Notably, petitioner failed to substantiate her claim of a
grand conspiracy in the commission of a fraud. There
was no showing that the witnesses of the proponent
stood to receive any benefit from the allowance of the
will. The testimonies of the three subscribing witnesses
and the notary are credible evidence of its due
execution.[23] Their testimony favoring it and the finding
that it was executed in accordance with the formalities
required by law should be affirmed, absent any showing
of ill motives.[24]


Capacity to Make a Will

In determining the capacity of the testator to make
a will, the Civil Code gives the following guidelines:

Article 798. In order to make a will it is essential that
the testator be of sound mind at the time of its execution.

Article 799. To be of sound mind, it is not necessary
that the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken,
unimpaired, or shattered by disease, injury or other
cause.

It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act.

Article 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.

The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains
the validity of the will must prove that the testator made it
during a lucid interval.


According to Article 799, the three things that the
testator must have the ability to know to be considered
of sound mind are as follows: (1) the nature of the
estate to be disposed of, (2) the proper objects of the
testators bounty, and (3) the character of the
testamentary act. Applying this test to the present case,
we find that the appellate court was correct in holding
that Placido had testamentary capacity at the time of the
execution of his will.

It must be noted that despite his advanced age, he was
still able to identify accurately the kinds of property he
owned, the extent of his shares in them and even their
locations. As regards the proper objects of his bounty, it
was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal
validity. There being no showing of fraud in its
execution, intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is
Alsua-Betts v. CA,[25] which held thus:

"Between the highest degree of soundness of mind and
memory which unquestionably carries with it full
testamentary capacity, and that degrees of mental
aberration generally known as insanity or idiocy, there
are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of
body, or from age, will not render a person incapable of
making a will; a weak or feebleminded person may make
a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do
and how or to whom he is disposing of his property. To
constitute a sound and disposing mind, it is not
necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily
require that a person shall actually be insane or of
unsound mind."[26]


WHEREFORE, the Petition is DENIED, and the assailed
Decision and Resolution of the Court of Appeals are
AFFIRMED. Costs against petitioner.

SO ORDERED.

8. Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION



G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and
Testament of the Deceased Brigido Alvarado,
CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice,
HON. MA. ROSARIO QUETULIO LOSA and HON.
LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil
Cases), and BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.



BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April
1986 1 of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 2 of the
Regional Trial Court of Sta. Cruz, Laguna, admitting to
probate the last will and testament 3 with codicil 4 of the
late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado
executed a notarial will entitled "Huling Habilin" wherein
he disinherited an illegitimate son (petitioner) and
expressly revoked a previously executed holographic will
at the time awaiting probate before Branch 4 of the
Regional Trial Court of sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the
notary public and by private respondent who were
present at the execution, the testator did not read the
final draft of the will himself. Instead, private respondent,
as the lawyer who drafted the eight-paged document,
read the same aloud in the presence of the testator, the
three instrumental witnesses and the notary public. The
latter four followed the reading with their own respective
copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently
admitted to probate on 9 December 1977. On the 29th
day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa
Huling Habilin na may Petsa Nobiembre 5, 1977 ni
Brigido Alvarado" was executed changing some
dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the
testator did not personally read the final draft of the
codicil. Instead, it was private respondent who read it
aloud in his presence and in the presence of the three
instrumental witnesses (same as those of the notarial
will) and the notary public who followed the reading
using their own copies.

A petition for the probate of the notarial will and codicil
was filed upon the testator's death on 3 January 1979 by
private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan, Laguna.
5 Petitioner, in turn, filed an Opposition on the following
grounds: that the will sought to be probated was not
executed and attested as required by law; that the
testator was insane or otherwise mentally incapacitated
to make a will at the time of its execution due to senility
and old age; that the will was executed under duress, or
influence of fear and threats; that it was procured by
undue and improper pressure and influence on the part
of the beneficiary who stands to get the lion's share of
the testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the
grounds relied upon in the Opposition, a Probate Order
was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal
was that the deceased was blind within the meaning of
the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and
codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the
decision under review with the following findings: that
Brigido Alvarado was not blind at the time his last will
and codicil were executed; that assuming his blindness,
the reading requirement of Art. 808 was substantially
complied with when both documents were read aloud to
the testator with each of the three instrumental
witnesses and the notary public following the reading
with their respective copies of the instruments. The
appellate court then concluded that although Art. 808
was not followed to the letter, there was substantial
compliance since its purpose of making known to the
testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was
Brigido Alvarado blind for purpose of Art, 808 at the time
his "Huling Habilin" and its codicil were executed? If so,
was the double-reading requirement of said article
complied with?

Regarding the first issue, there is no dispute on the
following facts: Brigido Alvarado was not totally blind at
the time the will and codicil were executed. However, his
vision on both eyes was only of "counting fingers at
three (3) feet" by reason of the glaucoma which he had
been suffering from for several years and even prior to
his first consultation with an eye specialist on
14 December 1977.

The point of dispute is whether the foregoing
circumstances would qualify Brigido as a "blind" testator
under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom
the will is acknowledged.

Petitioner contends that although his father was not
totally blind when the will and codicil were executed, he
can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner
presented before the trial court a medical certificate
issued by Dr. Salvador R. Salceda, Director of the
Institute of Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were interpreted in
layman's terms by Dr. Ruperto Roasa, whose expertise
was admitted by private respondent. 7 Dr. Roasa
explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977,
the day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the
medical testimony, held that the testator could still read
on the day the will and the codicil were executed but
chose not to do so because of "poor eyesight." 9 Since
the testator was still capable of reading at that time, the
court a quo concluded that Art. 808 need not be
complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the
testator was still capable of reading at the time his will
and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or "blurred" 12
vision making it necessary for private respondent to do
the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13
provides an insight into the scope of the term "blindness"
as used in Art. 808, to wit:

The rationale behind the requirement of reading the will
to the testator if he is blind or incapable of reading the
will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able
to object if they are not in accordance with his wishes . .
.

Clear from the foregoing is that Art. 808 applies not only
to blind testators but also to those who, for one reason
or another, are "incapable of reading the(ir) will(s)."
Since Brigido Alvarado was incapable of reading the
final drafts of his will and codicil on the separate
occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other
course for us but to conclude that Brigido Alvarado
comes within the scope of the term "blind" as it is used in
Art. 808. Unless the contents were read to him, he had
no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his
instructions. Hence, to consider his will as validly
executed and entitled to probate, it is essential that we
ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido
Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is
to make known to the incapacitated testator the contents
of the document before signing and to give him an
opportunity to object if anything is contrary to his
instructions.

That Art. 808 was not followed strictly is beyond cavil.
Instead of the notary public and an instrumental witness,
it was the lawyer (private respondent) who drafted the
eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not
twice as Art. 808 requires.

Private respondent however insists that there was
substantial compliance and that the single reading
suffices for purposes of the law. On the other hand,
petitioner maintains that the only valid compliance or
compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness
read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been
disallowed.

We sustain private respondent's stand and necessarily,
the petition must be denied.

This Court has held in a number of occasions that
substantial compliance is acceptable where the purpose
of the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud
and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator's
will and codicil aloud in the presence of the testator, his
three instrumental witnesses, and the notary public. Prior
and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with
his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and
petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with
respect to the "Huling Habilin," the day of the execution
was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido
Alvarado already acknowledged that the will was drafted
in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's
residence precisely for the purpose of securing his
conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the
documents on
5 November and 29 December 1977. The notary public
and the three instrumental witnesses likewise read the
will and codicil, albeit silently. Afterwards, Atty. Nonia de
la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and
the testator's physician) asked the testator whether the
contents of the document were of his own free will.
Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own
copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those
which he affirmed were in accordance with his
instructions), were the terms actually appearing on the
typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses
were persons known to the testator, one being his
physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter
was not. Although there should be strict compliance with
the substantial requirements of the law in order to insure
the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its
purpose and which, when taken into account, may only
defeat the testator's will. 17

As a final word to convince petitioner of the propriety of
the trial court's Probate Order and its affirmance by the
Court of Appeals, we quote the following pronouncement
in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to
avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws
on the subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object
of the law to restrain and curtail the exercise of the right
to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's
will, must be disregarded (emphasis supplied).

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

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

SO ORDERED.

Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ.,
concur.




9. G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF
ANDRES G. DE JESUS AND BIBIANA ROXAS DE
JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa
and A. R. de Jesus.

GUTIERREZ, JR., J .:
This is a petition for certiorari to set aside the order of
respondent Hon. Jose C. Colayco, Presiding Judge
Court of First Instance of Manila, Branch XXI disallowing
the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this
petition are undisputed.
After the death of spouses Andres G. de Jesus and
Bibiana Roxas de Jesus, Special Proceeding No. 81503
entitled "In the Matter of the Intestate Estate of Andres
G. de Jesus and Bibiana Roxas de Jesus" was filed by
petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was
appointed administrator. After Letters of Administration
had been granted to the petitioner, he delivered to the
lower court a document purporting to be the holographic
Will of the deceased Bibiana Roxas de Jesus. On May
26, 1973, respondent Judge Jose Colayco set the
hearing of the probate of the holographic Win on July 21,
1973.
Petitioner Simeon R. Roxas testified that after his
appointment as administrator, he found a notebook
belonging to the deceased Bibiana R. de Jesus and that
on pages 21, 22, 23 and 24 thereof, a letter-win
addressed to her children and entirely written and signed
in the handwriting of the deceased Bibiana R. de Jesus
was found. The will is dated "FEB./61 " and states: "This
is my win which I want to be respected although it is not
written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by
the testimonies of Pedro Roxas de Jesus and Manuel
Roxas de Jesus who likewise testified that the letter
dated "FEB./61 " is the holographic Will of their
deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively Identified
her signature. They further testified that their deceased
mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 "
was the date when said Will was executed by their
mother.
Respondent Luz R. Henson, another compulsory heir
filed an "opposition to probate" assailing the purported
holographic Will of Bibiana R. de Jesus because a it was
not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue
influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor
could have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco
issued an order allowing the probate of the holographic
Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus
was not dated as required by Article 810 of the Civil
Code. She contends that the law requires that the Will
should contain the day, month and year of its execution
and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco
reconsidered his earlier order and disallowed the
probate of the holographic Will on the ground that the
word "dated" has generally been held to include the
month, day, and year. The dispositive portion of the
order reads:
WHEREFORE, the document purporting
to be the holographic Will of Bibiana
Roxas de Jesus, is hereby disallowed
for not having been executed as
required by the law. The order of August
24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 "
appearing on the holographic Will of the deceased
Bibiana Roxas de Jesus is a valid compliance with the
Article 810 of the Civil Code which reads:
ART. 810. A person may execute a
holographic will which must be entirely
written, dated, and signed by the hand
of the testator himself. It is subject to no
other form, and may be made in or out
of the Philippines, and need not be
witnessed.
The petitioners contend that while Article 685 of the
Spanish Civil Code and Article 688 of the Old Civil Code
require the testator to state in his holographic Win the
"year, month, and day of its execution," the present Civil
Code omitted the phrase Ao mes y dia and simply
requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the
holographic Will should prevail.
Respondent Luz Henson on the other hand submits that
the purported holographic Will is void for non-compliance
with Article 810 of the New Civil Code in that the date
must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil
Code was patterned after Section 1277 of the California
Code and Section 1588 of the Louisiana Code whose
Supreme Courts had consistently ruled that the required
date includes the year, month, and day, and that if any of
these is wanting, the holographic Will is invalid. The
respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be
observed in the execution of holographic Wills are strictly
construed.
We agree with the petitioner.
This will not be the first time that this Court departs from
a strict and literal application of the statutory
requirements regarding the due execution of Wills. We
should not overlook the liberal trend of the Civil Code in
the manner of execution of Wills, the purpose of which,
in case of doubt is to prevent intestacy
The underlying and fundamental
objectives permeating the provisions of
the law on wigs in this Project consists
in the liberalization of the manner of
their execution with the end in view of
giving the testator more freedom in
expressing his last wishes, but with
sufficien safeguards and restrictions to
prevent the commission of fraud and the
exercise of undue and improper
pressure and influence upon the
testator.
This objective is in accord with the
modem tendency with respect to the
formalities in the execution of wills.
(Report of the Code Commission, p.
103)
In Justice Capistrano's concurring opinion in Heirs
of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx
... The law has a tender regard for the
will of the testator expressed in his last
will and testament on the ground that
any disposition made by the testator is
better than that which the law can make.
For this reason, intestate succession is
nothing more than a disposition based
upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the
legal requirements in order to guard against fraud and
bad faith but without undue or unnecessary curtailment
of testamentary privilege Icasiano v. Icasiano, 11 SCRA
422). If a Will has been executed in substantial
compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts
and circumstances of record are to be
considered in the application of any
given rule. If the surrounding
circumstances point to a regular
execution of the wilt and the instrument
appears to have been executed
substantially in accordance with the
requirements of the law, the inclination
should, in the absence of any
suggestion of bad faith, forgery or fraud,
lean towards its admission to probate,
although the document may suffer from
some imperfection of language, or other
non-essential defect. ... (Leynez v.
Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply
with all the requisites, although compliance is not literal,
it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by
the form followed by the testator.
The purpose of the solemnities surrounding the
execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities
surrounding the execution of wills is to
close the door against bad faith and
fraud, to avoid substitution of wills and
testaments and to guaranty their truth
and authenticity. ...
In particular, a complete date is required to provide
against such contingencies as that of two competing
Wills executed on the same day, or of a testator
becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no
such contingency in this case.
We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution
nor was there any substitution of Wins and Testaments.
There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written,
dated, and signed by the testatrix herself and in a
language known to her. There is also no question as to
its genuineness and due execution. All the children of
the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of
said Will. The objection interposed by the oppositor-
respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing
on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too
technical to be entertained.
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution.
However, when as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established
and the only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid compliance
with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of
substantial compliance.
WHEREFORE, the instant petition is GRANTED. The
order appealed from is REVERSED and SET ASIDE and
the order allowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana,
Relova and De la Fuente, JJ., concur.

10. Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge
of the CFI of Batangas, Branch VI, Lipa City, and
GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J .:
On September 1, 1971, private respondent GREGORIO
K. KALAW, claiming to be the sole heir of his deceased
sister, Natividad K. Kalaw, filed a petition before the
Court of First Instance of Batangas, Branch VI, Lipa City,
for the probate of her holographic Will executed on
December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and
a resident of Lipa City, being of sound and disposing
mind and memory, do hereby declare thus to be my last
will and testament.
1. It is my will that I'll be burried in the cemetery of the
catholic church of Lipa City. In accordance with the
rights of said Church, and that my executrix hereinafter
named provide and erect at the expose of my state a
suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence,
on November 10, 1971, petitioner ROSA K. Kalaw
opposed probate alleging, in substance, that the
holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of the
Civil Code reading:
Art. 814. In case of any insertion,
cancellation, erasure or alteration in a
holographic will the testator must
authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first
written, should be given effect and probated so that she
could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order,
dated September 3, 197 3, reading in part:
The document Exhibit "C" was
submitted to the National Bureau of
Investigation for examination. The NBI
reported that the handwriting, the
signature, the insertions and/or
additions and the initial were made by
one and the same person.
Consequently, Exhibit "C" was the
handwriting of the decedent, Natividad
K. Kalaw. The only question is whether
the win, Exhibit 'C', should be admitted
to probate although the alterations
and/or insertions or additions above-
mentioned were not authenticated by
the full signature of the testatrix
pursuant to Art. 814 of the Civil Code.
The petitioner contends that the
oppositors are estopped to assert the
provision of Art. 814 on the ground that
they themselves agreed thru their
counsel to submit the Document to the
NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree,
nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the
provision of Article 814 of the Civil Code
is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by
the full signature of the testatrix
Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate
Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration
arguing that since the alterations and/or insertions were
the testatrix, the denial to probate of her holographic Will
would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that "Article 814
of the Civil Code being , clear and explicit, (it) requires
no necessity for interpretation."
From that Order, dated September 3, 1973, denying
probate, and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not
theoriginal unaltered text after subsequent alterations
and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix,
should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
litem not been noted under his signature, ... the Will is
not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary
when he said "la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida
en la sentencia de 4 de Abril de 1895."
2

However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked
for the simple reason that nothing remains in the Will
after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard
the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she
failed to authenticate it in the manner required by law by
affixing her full signature,
The ruling in Velasco, supra, must be held confined to
such insertions, cancellations, erasures or alterations in
a holographic Will, which affect only the efficacy of the
altered words themselves but not the essence and
validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code, whence Article
814 of the new Civil Code was derived:
... No infringe lo dispuesto en este
articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un
testamento olografo que contenga
palabras tachadas, enmendadas o entre
renglones no salvadas por el testador
bajo su firnia segun previene el parrafo
tercero del mismo, porque, en
realidad, tal omision solo puede afectar
a la validez o eficacia de tales palabras,
y nunca al testamento mismo, ya por
estar esa disposicion en parrafo aparte
de aquel que determine las condiciones
necesarias para la validez del
testamento olografo, ya porque, de
admitir lo contrario, se Ilegaria al
absurdo de que pequefias enmiendas
no salvadas, que en nada afectasen a la
parte esencial y respectiva del
testamento, vinieran a anular este, y ya
porque el precepto contenido en dicho
parrafo ha de entenderse en perfecta
armonia y congruencia con el art. 26 de
la ley del Notariado que declara nulas
las adiciones apostillas
entrerrenglonados, raspaduras y
tachados en las escrituras matrices,
siempre que no se salven en la forma
prevenida, paro no el documento que
las contenga, y con mayor
motivo cuando las palabras
enmendadas, tachadas, o
entrerrenglonadas no tengan
importancia ni susciten duda alguna
acerca del pensamiento del testador, o
constituyan meros accidentes de
ortografia o de purez escrituraria, sin
trascendencia alguna(l).
Mas para que sea aplicable la doctrina
de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras,
enmiendas o entrerrenglonados sin
salvar saan de pala bras que no
afecter4 alteren ni uarien de modo
substancial la express voluntad del
testador manifiesta en el documento.
Asi lo advierte la sentencia de 29 de
Noviembre de 1916, que declara nulo
un testamento olografo por no estar
salvada por el testador la enmienda del
guarismo ultimo del ao en que fue
extendido
3
(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the
Decision of respondent Judge, dated September 3,
1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part
Separate Opinions
TEEHANKEE, J ., concurring:
I concur. Rosa, having appealed to this Court on a sole
question of law, is bound by the trial court's factual
finding that the peculiar alterations in the holographic will
crossing out Rosa's name and instead inserting her
brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own
handwriting. (I find it peculiar that the testatrix who was
obviously an educated person would unthinkingly make
such crude alterations instead of consulting her lawyer
and writing an entirely new holographic wig in order to
avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K.
Kalaw" and inserting "brother Gregorio Kalaw" as sole
heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and
inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing
Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature
of the executrix as mandatorily required by Article 814 of
the Civil Code. The original unaltered will naming Rosa
as sole heir cannot, however, be given effect in view of
the trial court's factual finding that the testatrix had by
her own handwriting substituted Gregorio for Rosa, so
that there is no longer any will naming Rosa as sole heir.
The net result is that the testatrix left no valid will and
both Rosa and Gregorio as her next of kill succeed to
her intestate estate.
Separate Opinions
TEEHANKEE, J ., concurring:
I concur. Rosa, having appealed to this Court on a sole
question of law, is bound by the trial court's factual
finding that the peculiar alterations in the holographic will
crossing out Rosa's name and instead inserting her
brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own
handwriting. (I find it peculiar that the testatrix who was
obviously an educated person would unthinkingly make
such crude alterations instead of consulting her lawyer
and writing an entirely new holographic wig in order to
avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K.
Kalaw" and inserting "brother Gregorio Kalaw" as sole
heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and
inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing
Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature
of the executrix as mandatorily required by Article 814 of
the Civil Code. The original unaltered will naming Rosa
as sole heir cannot, however, be given effect in view of
the trial court's factual finding that the testatrix had by
her own handwriting substituted Gregorio for Rosa, so
that there is no longer any will naming Rosa as sole heir.
The net result is that the testatrix left no valid will and
both Rosa and Gregorio as her next of kill succeed to
her intestate estate.

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