Azuela vs CA (See 805)

G.R. No. L-20357 November 25, 1967

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO GATCHALIAN, deceased.
PEDRO REYES GARCIA, petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY
and ANGELES G. TALANAY, oppositors-appellees.
E. Debuque for petitioner-appellant.
E. L. Segovia for oppositors-appellees.
DIZON, J .:
This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of Rizal in Special
Proceedings No. 2623 denying the allowance of the will of the late Gregorio Gatchalian, on the ground that the attesting
witnesses did not acknowledge it before a notary public, as required by law.
On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of Pasig, Province of Rizal,
leaving no forced heirs. On April 2 of the same year, appellant filed a petition with the above named court for the probate of
said alleged will (Exhibit "C") wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. Camins, Angeles G.
Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles G. Talanay, appellees herein, opposed the petition on the
ground, among others, that the will was procured by fraud; that the deceased did not intend the instrument signed by him to
be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the alleged
execution of said will.
After due trial, the court rendered the appealed decision finding the document Exhibit "C" to be the authentic last will of the
deceased but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil Code that
the will must be acknowledged before a notary public by the testator and the witnesses.
An examination of the document (Exhibit "C") shows that the same was acknowledged before a notary public by the testator
but not by the instrumental witnesses.
Article 806 of the New Civil Code reads as follows:
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.
We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will
must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity (In re:
Testate Estate of Alberto, G. R. No. L-11948, April 29, 1959). As the document under consideration does not comply with
this requirement, it is obvious that the same may not be probated.
WHEREFORE, the decision appealed from is affirmed, with costs.
Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J., and Reyes, J.B.L., J., took no part.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J .:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect,
marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and
Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased,
appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was made
directly to this Court because the value of the properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions
were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue
was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the
presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by
the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered
invalid and ineffective. These questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado,
cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and
heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her
to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not
feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the
deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would
question it because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable
story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap,
Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by testatri x
and witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March 30,
1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an
infirm lady then over 80 years old, should leave her own house in order to execute her will, when all three witnesses could
have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of
Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they
claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is well known that
what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria
Paderogao was positive that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but
she could remember no other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still,
Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that
was later proved to have been separated from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect examination, Allado
sought to cure his testimony by claiming that he was upstairs in a room where the servants used to eat when he heard Yap
converse with his mistress; but this correction is unavailing, since it was plainly induced by two highly leading questions f rom
contestant's counsel that had been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with
this witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant -
appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and the
identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness Mrs.
Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that
the use of some Spanish terms in the codicil and testament (like legado, partes iguales, plena propiedad) is proof that its
contents were not understood by the testatrix, it appearing in evidence that those terms are of common use even in the
vernacular, and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in
Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the enactment
of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental
witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed
by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on
the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and
signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to
substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed.
868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the
presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the
new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single
act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the
presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the
testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before
us. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out
of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed
without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in
eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new
Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion, JJ., concur.
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 t he
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 attesti ng 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.
Conejos vs yves (no case)
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.

GUERRERO, J .:
This is a petition for review of the decision of the Court of Appeals, First Division,
1
promulgated on May 4, 1973 in CA
G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15,
1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance
of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased
Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of
Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876.
It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are
nieces of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latters
residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in Manila on
the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages,
including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The
signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages.
The attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing
kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala ipinaalam at
ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages)
pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril,
1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim
ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang
panig ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat
at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa
harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at
bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Gimpaya and
Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of residence, 961
Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also
appear on the left margin of all the other pages. The WW is paged by typewritten words as follows: "Unang Dahon" and
underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance wit h
the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be paid; that
legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and
her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and
Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent
Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan
at minahal na katulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed all properties
and estate, real or personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses, debts
and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of
the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent lacked testamentary
capacity due to old age and sickness; and in the second alternative
4. That the purported WW was procured through undue and improper pressure and influence on the part
of the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo rendered judgment,
the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that the purported will of the deceased was
procured through undue and improper pressure and influence on the part of the petitioner, or of some
other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time of the alleged execution of
the purported will, the deceased lacked testamentary capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of the
deceased was not executed and attested as required by law;
4. That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the
purported win allegedly dictated by the deceased, executed and signed by her, and attested by her three
attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last wig and testament of the
deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided on
appeal was whether or not the will in question was executed and attested as required by law. The Court of Appeals, upon
consideration of the evidence adduced by both parties, rendered the decision now under review, holding that the will in
question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting
witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the
deceased and of each other as required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration
3
of the aforesaid decision and such motion was
opposed
4
by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective
Memoranda,
5
and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution
6
denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that the supposed last wig
and testament of Isabel Gabriel was not executed in accordance with law because the same was signed
on several occasions, that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of
the evidence. We have carefully re-examined the oral and documentary evidence of record, There is no
reason to alter the findings of fact in the decision of this Court sought to be set aside.
7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its discretion
and/or acted without or in excess of its jurisdiction in reverssing the findings of fact and conclusions of the trial court. The
Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to
require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the
allegations, the issues raised and the arguments adduced in the petition, as well as the Comment
8
of private respondent
thereon, We denied the petition by Resolution on November 26, 1973,
9
the question raised being factual
and for insufficient showing that the findings of fact by respondent Court were unsupported by substantial
evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration
10
which private
respondent answered by way of her Comment or Opposition
11
filed on January 15, 1974. A Reply and
Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by
law when there was absolutely no proof that the three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of the win Exhi bit
"F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words "Pangalan"
and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same
occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have
dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not physically present when
the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso
Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as proof that the
win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of witnesses
(subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred in rejecting said
testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted and usual
course of judicial proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F", the alleged last
will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character and content. Hence,
at the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction, the factual findings
of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This rule has been stated
and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737,
743)
12
and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393),
13
and in the more recent cases
of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs
of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this
Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been well-settled that
the jurisdiction of tills Court in cases brought to us from the Court of Appeals is limited to reviewing and revising the err ors of
law imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month later, this Court,
speaking through the then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals was
in disagreement with the lower court as to the weight of the evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not reviewable on
appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us particularly because its
premises are borne out by the record or based upon substantial evidence and what is more, when such findings are correct.
Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals
because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in
the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals are contrary to those
of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes
necessary. The general rule We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments of
errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document, Exhibi t
"F", was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witnesses. She argues that the require. ment in Article 806, Civil Code, that the witnesses must be credible is
an absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate
and that to be a credible witness, there must be evidence on record that the witness has a good standing in his community,
or that he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of
the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible"
is not synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still
not be credible as required by Article 805 of the same Code. It is further urged that the term "credible" as used in the Civi l
Code should receive the same settled and well- known meaning it has under the Naturalization Law, the latter being a
kindred legislation with the Civil Code provisions on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness
to the execution of wills while Article 821 sets forth the disqualification from being a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or
dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 806 of
this Code. "Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good
standing in the community, his reputation for trustworthythiness and reliableness, his honesty and uprightness in order that
his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820
of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to
the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony , or competently
proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the
satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record the good standing of the witness in the community, his
reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the
witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given the
same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must be
supported by two character witnesses who must prove their good standing in the community, reputation for trustworthiness
and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are character wit nesses in
that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of
time required by the Act and a person of good repute and morally irreproachable and that said petitioner has in thei r opinion
all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions
of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will
or testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings laid
down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable to
instrumental witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the
respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has
not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below
18 years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, 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, While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a
witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas
Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible requires
something more than just being competent and, therefore, a witness in addition to being competent under Articles 820 and
821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one may be
a competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show that the
instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since one was a
family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver
of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix But the relation of employer and employee much less the humble or financial position of a person
do not disqualify him to be a competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil.
344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805 of the
Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article 820 which
says "may be Q witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities that the word
"credible" insofar as witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs. Suntay,
95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in existence at the time of,
and not revoked before, the death of the testator, still the provisions of the lost wig must be clearly and distinctly proved by
at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to facts from or
upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of the same
Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and not blind,
deaf, or dumb and able to read and write, may be a witness to the execution of a will. This same provision is reproduced in
our New Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in
a win, does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is that said witness must be credible, that is to say, his
testimony may be entitled to credence. There is a long line of authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other cause.
Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words and
Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of
Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means 'competent witness that is, one
competent under the law to testify to fact of execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs.
First State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible
witnesses means competent; witnesses who, at the time of attesting the will, are legally competent to
testify, in a court of justice, to the facts attested by subscribing the will, the competency being determined
as of the date of the execution of the will and not of the timr it is offered for probate, Smith vs.
Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent witnesses that is, such
persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity,
interest, or the commission of crimes, or other cause excluding them from testifying generally, or
rendering them incompetent in respect of the particular subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is
Art. 820 and 821, Civil Code, whereas his credibility depends On the appreciation of his testimony and arises from the belief
and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del
Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness
is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to
believe or not to believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent
must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article
821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence
be first established on record that the witnesses have a good standing in the community or that they are honest and upright
or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise.
In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows
the probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to
have introduced prior and independent proof of the fact that the witnesses were "credible witnesses that is, that they have a
good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings of fact
of the respondent court in finding that the preparation and execution of the will was expected and not coincidental, in findi ng
that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him
to type such data into the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewrit ten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in
the same occasion, in holding credible that Isabel Gabriel could have dictated the will without note or document to Atty.
Paraiso, in holding that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that the grave contradictions,
evasions and misrepresentations of the witnesses (subscribing and notary) presented by the petitioner had been explained
away.
Since the above errors are factual We must repeat what We have previously laid down that the findings of fact of the
appellate court are binding and controlling which We cannot review, subject to certain exceptions which We win consider
and discuss hereinafter. We are convinced that the appellate court's findings are sufficiently justified and supported by the
evidence on record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and
bringing all the witnesses without previous appointment for the preparation and execution of the win and that it was
coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals that although Atty.
Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as there
was no prior appointment with him, but he explained that he was available for any business transaction on that day and that
Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the appellate court is amply based on t he
testimony of Celso Gimpaya that he was not only informed on the morning of the day that he witnessed the will but that it
was the third time when Isabel Gabriel told him that he was going to witness the making of her will, as well as the testimony
of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which was
nearby and from said house, they left in a car to the lawyer's office, which testimonies are recited in the respondent Court' s
decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained residence
certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas,
Rizal on April 14, 1961. The respondent Court correctly observed that there was nothing surprising in these facts and that
the securing of these residence certificates two days and one day, respectively, before the execution of the will on April 15,
1961, far from showing an amazing coincidence, reveals that the spouses were earlier notified that they would be witnesses
to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned by the
deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started from the
Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to Matilde
Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia)
passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they
proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was executed on April
15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her that if she really
wanted to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her
witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that he believed
her to be of sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore,
clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including
the photographer in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence certificates
of the witnesses as to enable him to type such data into the document Exhibit ' L which the petitioner assails as contradictory
and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the names of the
witnesses and their respective residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and
this was corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from
Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the, respondent Court held that on
the occasion of the will making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no such list was
given the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on a prior
occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for such data
appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April
15, 1961 following the attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit
"F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public
document executed and attested through the intervention of the notary public and as such public document is evidence of
the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict al l
these, there must be evidence that is clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA
407). We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the typewritten
words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in
the same occasion merits Our approval because tills conclusion is supported and borne out by the evidence found by the
appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued" and
place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274 issued on February 24, 1961 at
Navotas Rizal appears to be in typewritten form while the names, residence tax certificate numbers, dates and places of
issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, thi s
coincides with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of the
appellant Santiago as executrix of the will without bond. The technical description of the properties in paragraph 5 of Exhibit
F was not given and the numbers of the certificates of title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket number of a
special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner
contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or document to
Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old and had been
suffering from a brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after the
execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency of the respondent
appellate court in determining the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix dictated her will without
any note or memorandum appears to be fully supported by the following facts or evidence appearing on record. Thus, Isabel
Gabriel, despite her age, was particularly active in her business affairs as she activel y managed the affairs of the movie
business ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days before her death. She was the widow
of the late Eligio Naval, former Governor of Rizal Province and acted as coadministratrix in the Intestate Estate of her
deceased husband Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the light
of all the circumstances, We agree with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and documentary is, according to
the respondent court, overwhelming that Matilde Orobia was physically present when the will was signed on April 15, 1961
by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court
is very clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically present when the will
was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial
court's conclusion that Orobia's admission that she gave piano lessons to the child of the appellant on Wednesdays and
Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia could not have been present to
witness the will on that day is purely conjectural. Witness Orobia did not admit having given piano lessons to the
appellant's child every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a
Saturday, she gave no piano lessons on that day for which reason she could have witnessed the execution of the will.
Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same. Anyway, her presence
at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her from giving
piano lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on April 15,
1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the will, the
documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment overwhelmingly and
convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation
clause which Matilde Orobia signed is the best evidence as to the date of signing because it preserves in permanent form a
recital of all the material facts attending the execution of the will. This is the very purpose of the attestation clause whi ch is
made for the purpose of preserving in permanent form a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty they may still be proved. (Thompson on Wills,
2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave undue
importance to the picture-takings as proof that the win was improperly executed, We agree with the reasoning of the
respondent court that: "Matilde Orobia's Identification of the photographer as "Cesar Mendoza", contrary to what the other
two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a
minor mistake attributable to lapse of time. The law does not require a photographer for the execution and attestation of the
will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her
testimony that she was present when the will was signed because what matters here is not the photographer but the
photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent
Court correctly held: "The trial court gave undue importance to the picture takings, jumping therefrom to the conclusion that
the will was improperly executed. The evidence however, heavily points to only one occasion of the execution of the will on
April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These wi tnesses were quite
emphatic and positive when they spoke of this occasion. Hence, their Identification of some photographs wherein they all
appeared along with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross examination
of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident upon the insistence of
Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly unnecessary if not
pointless. What was important was that the will was duly executed and witnessed on the first occasion on April 15, 1961 , "
and We agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not require picture-
taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective
testimonies before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions, evasions
and misrepresentations had been explained away. Such discrepancies as in the description of the typewriter used by Atty.
Paraiso which he described as "elite" which to him meant big letters which are of the type in which the will was typewritten
but which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are indeed
unimportant details which could have been affected by the lapse of time and the treachery of human memory such that by
themselves would not alter the probative value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz,
28 SCRA 421, 424) for it cannot be expected that the testimony of every person win be Identical and coinciding with each
other with regard to details of an incident and that witnesses are not expected to remember all details. Human experience
teach us "that contradictions of witnesses generally occur in the details of certain incidents, after a long series of
questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. In as much as not all
those who witness an incident are impressed in like manner, it is but natural that in relating their impressions, they should
not agree in the minor details; hence the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent
appellate court because the trial court was in a better position to weigh and evaluate the evidence presented in the course of
the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of the Court of
Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the evi dence has
found that facts and circumstances of weight and influence have been ignored and overlooked and the significance of which
have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts particularly when they
are based on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses hes peculiarly
within the province of trial courts and generally, the appellate court should not interfere with the same. In the instant case,
however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances
established in the record. Whereas the appellate court said that "Nothing in the record supports the trial court's unbelief t hat
Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde
Orobia could not have witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion based not on facts but on
inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will
was improperly executed and that there is nothing in the entire record to support the conclusion of the court a quo that the
will signing occasion was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to
witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of fact of the trial court in
the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals is
conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that among the
exceptions are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when
the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the
presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel,
together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the
office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel
obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and
told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be
written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by
her; that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their correctness; the lawyer then typed
the will and after finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel
signed her name at the end of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria
Gimpaya and also at the left-hand margin of each and every page of the document in the presence also of the said three
witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end of the attestation clause and at t he
left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses,
Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clause and at
the left-hand margin of the other pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria
Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand
margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution
and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel
Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another,
Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with her at least the
Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the three
attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim
which was not controverted that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any
lingering doubt that he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have dictated the
will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it was incredible.
This ruling of the respondent court is fully supported by the evidence on record as stated in the decision under review, thus:
"Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to
Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty.
Paraiso and that other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes
with the evidence which the trial court itself believed was unshaken that Isabel Gabriel was of sound disposing
memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel Gabriel's wi sh
to be interred according to Catholic rites the second was a general directive to pay her debts if any; the third provided for
P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a
listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee the fifth
was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda
Santiago but prohibiting the sale of such properties to anyone except in extreme situations in which judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. (Roque vs.
Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion
Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions enumerated
above. We likewise hold that the findings of fact of the respondent appellate court are fully supported by the evidence on
record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We discern no
misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the well -established rule that
the decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this
Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or reservation. The above
holding simply synthesize the resolutions we have heretofore made in respect ' to petitioner's previous assignments of error
and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court acted
properly and correctly and has not departed from the accepted and usual course of judicial proceedings as to call for the
exercise of the power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in reversing
the decision of the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record is
unassailable that: "From the welter of evidence presented, we are convinced that the will in question was executed on April
15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the the
will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing
the notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial register. A
few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of
Atty. Paraiso and told the lawyer that she wanted another picture taken because the first picture did not turn out good. The
lawyer told her that this cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of the
will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three instrumental witnesses who
constitute the best evidence of the will making have testified in favor of the probate of the will. So has the lawyer who
prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All of them are disinterested
witnesses who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been
identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that they were not genuine.
In the last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review
and revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the
petitioner.
SO ORDERED.
G.R. No. L-51546 January 28, 1980
JOSE ANTONIO GABUCAN, petitioner-appellant,
vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR, respondents-appellees.
Ignacio A. Calingin for appellant.

AQUINO, J .:
This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a thirt y-
centavo documentary stamp.
The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special Proceeding No. 41 for the probate
of the will of the late Rogaciano Gabucan, dismissed the proceeding (erroneously characterizes as an "action")
The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial acknowledgment in
the will and, hence, according to respondent Judge, it was not admissible in evidence, citing section 238 of the Tax Code,
now section 250 of the 1977 Tax Code, which reads:
SEC. 238. Effect of failure to stamp taxable document. An instrument, document, or paper which is
required by law to be stamped and which has been signed, issued, accepted, or transferred without being
duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same
be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed
thereto and cancelled.
No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to
any document subject to documentary stamp tax unless the proper documentary stamps are affixed
thereto and cancelled.
The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo documentary
stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.
Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he had already attached the
documentary stamp to the original of the will. (See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)
The case was brought to this Court by means of a petition for mandamus to compel the lower court to allow petitioner's
appeal from its decision. In this Court's resolution of January 21, 1980 the petition for mandamus was treated in the interest
of substantial and speedy justice as an appeal under Republic Act No. 5440 as well as a special civil action of certiorari
under Rule 65 of the Rules of Court.
We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there
was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed".
What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.
That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does not
bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed thereto and
cancelled."
Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence (Del
Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear a documentary stamp, the court should have
allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in
Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not invalidate such
document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16
Phil. 403, 405-6.)
WHEREFORE, the lower court's dismissal of the petition for probate is reversed and set aside. It is directed to decide the
case on the merits in the light of the parties' evidence. No costs.
SO ORDERED.
Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ. concur.