Professional Documents
Culture Documents
DECISION
PARAS, C.J :
p
by us below his name and of this attestation clause and that of the left
margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken
and understood by the testator, and it bears the corresponding number
in letter which compose of three pages and all of them were signed in
the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
"In testimony, whereof, we sign this testament, this the third day
of January, one thousand nine hundred forty three, (1943) A.D.
The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A ruego del testador"
and the name of Florentino Javier. Antero Mercado is alleged to have written
a cross immediately after his name. The Court of Appeals, reversing the
judgment of the Court of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the will was signed on all the left
margins of the three pages and at the end of the will by Atty. Florentino Javier
at the express request of the testator in the presence of the testator and each
and every one of the witnesses; (2) to certify that after the signing of the name
of the testator by Atty. Javier at the former's request said testator has written a
cross at the end of his name and on the left margin of the three pages of
which the will consists and at the end thereof; (3) to certify that the three
witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to
state that Antero Mercado caused Atty. Florentino Javier to write the testator's
name under his express direction, as required by section 618 of the Code of
Civil Procedure. The herein petitioner (who is appealing by way of certiorari
from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name
(In re: Mercado v. Lacuesta, G.R. No. L-4067, November 29, 1951)
EN BANC
[G.R. No. 6285. February 15, 1912.]
PEDRO BARUT, petitioner-appellant, vs.
FAUSTINO CABACUNGAN ET AL., opponents-appellees.
A. M. Jimenez, for appellant.
Ramon Querubin, for appellees.
SYLLABUS
DECISION
MORELAND, J :
p
is the one involved in case No. 6284 already referred to. Proceedings for the
probate of this later will were pending at the time. The evidence of the
proponents and of the opponents was taken by the court in both cases for the
purpose of considering them together.
In the case before us the learned probate court found that the will was
not entitled to probate upon the sole ground that the handwriting of the person
who it is alleged signed the name of the testatrix to the will for and on her
behalf looked more like the handwriting of one of the other witnesses to the
will than that of the person whose handwriting it was alleged to be. We do not
believe that the mere dissimilarity in writing thus mentioned by the court is
sufficient to overcome the uncontradicted testimony of all the witnesses to the
will that the signature of the testatrix was written by Severo Agayan at her
request and in her presence and in the presence of all of the witnesses to the
will. It is immaterial who writes the name of the testatrix provided it is written
at her request and in her presence and in the presence of all the witnesses to
the execution of the will.
The court seems, by inference at least, to have had in mind that under
the law relating to the execution of a will it is necessary that the person who
signs the name of the testatrix must afterwards sign his own name; and that,
in view of the fact that, in the case at bar, the name signed below that of the
testatrix as the person who signed her name, being, from its appearance, not
the same hand-writing as that constituting the name of the testatrix, the will is
accordingly invalid, such fact indicating that the person who signed the name
of the testatrix failed to sign his own. We do not believe that this contention
can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:
"No will, except as provided in the preceding section, shall be
valid to pass any estate, real or personal, nor charge or affect the same,
unless it be in writing and signed by the testator, or by the testator's
name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other. . . ."
This is the important part of the section under the terms of which the
court holds that the person who signs the name of the testator for him must
also sign his own name. The remainder of the section reads:
"The attestation shall state the fact that the testator signed the
will, or caused it to be signed by some other person, at his express
direction, in the presence of three witnesses, and that they attested and
subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is
proven that the will was in fact signed and attested as in this section
provided."
The headnote in the case last above stated gives an indication of what
all of the cases are and the question involved in each one of them. It says:
"The testatrix was not able to sign her name to the will, and she
requested another person to sign it for her. Instead of writing her name
he wrote his own upon the will. Held, That the will was not duly
executed."
All of the above cases are precisely of this character. Every one of them
was a case in which the person who signed the will for the testator wrote his
own name to the will instead of writing that of the testator, so that the
testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parte Arcenas contains the following paragraph:
"Where a testator does not know how, or is unable for any
reason, to sign the will himself, it shall be signed in the following manner:
'John Doe, by the testator, Richard Roe ;' or in this form: 'By the testator.
John Doe, Richard Roe.' All this must be written by the witness signing
at the request of the testator."
The only question for decision in that case, as we have before stated,
was presented by the fact that the person who was authorized to sign the
name of the testator to the will actually failed to sign such name but instead
signed his own thereto. The decision in that case related only to that question.
Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of
Civil Procedure does not expressly require that when the testator or testatrix
is unable or does not know how to sign, the person who, in the presence and
under the express direction of either of them, writes in the name of the said
testator or testatrix must also sign his own name thereto, it being sufficient for
the validity of the will that the said person so requested to sign for the testator
or testatrix write the name of either in his own handwriting.
Since this court began to decide cases with regard to the form,
conditions and validity of wills executed in accordance with the provisions of
the Code of Civil Procedure, never has the specific point just above
mentioned been brought into question. Now for the first time it is affirmed in
the majority opinion, written by the learned and distinguished Hon. Justice
Moreland, that, not being required by the said code, the signature of the name
of the person who, at the request of the testator or testatrix, writes the name
of either of the latter to the will executed, is not necessary.
three witnesses present to do so, and that as a matter of fact, the said witness
wrote the name and surname of the testator who, stating that the instrument
executed by him contained his last will, put the sign of the cross between his
said name and surname, all of which details are set forth in a note which the
witnesses forthwith subscribed in the presence of the testator and of each
other, said will may be probated.
"When the essential requisites of section 618 of the Code of Civil
Procedure for the execution and validity of a will have been complied
with, the fact that the witness who was requested to sign the name of the
testator, omitted to state the words 'by request of the testator,' when
writing with his own hand the name and surname of the said testator,
and the fact that said witness subscribed his name together with the
other witnesses and not below the name of the testator, does not
constitute a defect nor invalidate the said will."
Moreover, among the grounds given as a basis for this same decision,
the following appears:
"In sustaining this form of signature, this court does not intend to
qualify the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the Arcenas
case the court pointed out the correct formula for a signature which ought
to be followed, but did not mean to exclude any other form substantially
equivalent."
It is true that in none of the decisions above quoted was the rule
established that the person who, at the request of the testator or testatrix,
signed the latter's or the former's name and surname to the will must affix his
own signature; but it is no less true that, in prescribing the method in
which the provisions of the said section 618 were to be complied with, it was
stated that, in order that a will so executed might be admitted to probate, it
was an indispensable requisite that the person requested to sign in place of
the testator or testatrix, should write the latter's or the former's name and
surname at the foot of the will in the presence and under the direction of
either, as the case might be, and should afterwards sign the instrument with
his own name and surname.
The statement that the person who writes the name and surname of the
testator or testatrix at the foot of the will should likewise affix his own
signature thereto, name and surname, though it be considered to be neither a
rule nor a requisite necessary to follow for the admission of the will to probate,
yet it is unquestionable that, in inserting this last above-mentioned detail in the
they appear, and signed without dissent by all the justices of the court on
various dates. None of them hesitated to sign the decisions, notwithstanding
that it was expressly held therein that the person above mentioned should,
besides writing in the will the name and surname of the testator or testatrix,
also sign the said instrument with his own name and surname.
"Should the testator declare that he does not know how, or is not
able to sign, one of the attesting witnesses or another person shall do so
for him at his request, the notary certifying thereto. This shall also be
done if any one of the witnesses can not sign."
since it is in harmony with the juridical usages and customs observed in this
country, it ought, in the humble opinion of the writer, to be maintained for the
benefit of the inhabitants of the Islands and for the sake of a good
administration of justice, because it is not a question of a dangerous
innovation or of one prejudicial to the public good, but a matter of the
observance of a convenient, if not a necessary detail, introduced by the
jurisprudence of the courts and which in the present case has filled a vacancy
led by the positive written law.
The foregoing considerations, which perhaps have not the support of
better premises, but, in the opinion of the undersigned, are conducive to the
realization of the purposes of justice, have impelled him to believe that the
proposition should be enforced that the witness requested or invited by the
testator or testatrix to write his or her name to the will, should also subscribe
the instrument by signing thereto his own name and surname; and therefore,
with the proper finding in this sense, and a reversal of the judgment appealed
from, that the court below should be ordered to proceed with the probate of
the will of the decedent, Maria Salomon, in accordance with the law.
Footnotes
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EN BANC
[G.R. No. L-5971. February 27, 1911.]
DECISION
CARSON, J :
p
The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court below, is whether
one of the subscribing witnesses was present in the small room where it was
executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was outside, some eight
or ten feet away, in a large room connecting with the smaller room by a
doorway, across which was hung a curtain which made it impossible for one in
the outside room to see the testator and the other subscribing witnesses in the
act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing
witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the instrument,
and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have considered the determination of
this question of fact of vital importance in the determination of this case, as he
was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven, would
not be sufficient in itself to invalidate the execution of the will. But we are
unanimously of opinion that had this subscribing witness been proven to have
been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it
would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the
other subscribing witnesses would necessarily have been impeded by the
curtain separating the inner from the outer one "at the moment of inscription of
each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but
whether they might have been seen each other sign, had they chosen to
do so, considering their mental and physical condition and position with
relation to each other at the moment of inscription of each signature."
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EN BANC
DECISION
REYES, J.B.L., J :
p
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.
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.
cdrep
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 Dr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on
the same date before attorney Jose Oyengco Ong, Notary Public in and for the
City of Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing of the
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 attorney Fermin Samson, who actually prepared
the document. The latter also testified upon cross examination that he prepared
one original and two copies of Josefa Villacorte's 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 copy were duly
acknowledged before Notary Public Jose Oyengco Ong of Manila on the same
date June 2, 1956.
Witness Natividad, who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he signed
the same, but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate (Exhibit A-1) are not genuine, nor were
they written or affixed on the same occasion as the original, and further aver that
granting that the documents were genuine, they were executed through mistake
and with undue influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions and
dispositions thereof, whereby 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 occasion, in the presence of
the three attesting witnesses, the notary public who acknowledged the will, and
Atty. Samson, who actually prepared the documents; that the will and its
duplicate were executed in Tagalog, a language known to and spoken by both
the testator and the witnesses, and read to and by the testatrix and Atty. Fermin
Samson together before they were actually signed; that the attestation clause is
also in a language known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the
testatrix appealing in the duplicate original were not written by the same hand,
which wrote the signatures in the original will leaves us unconvinced, not merely
because it is directly contradicted by expert Martin Ramos for the proponents, but
principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures
are beyond the 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 that the signatures in the duplicate could not be
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering that standard and
challenged writings were affixed to different kinds of paper, with different
surfaces and reflecting power. On the whole, therefore, we do not find the
testimony of the 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; Bugnaovs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 216). Diversity of
apportionment is the usual reason for making a testament; otherwise, the decedent might
as well die intestate. The testamentary disposition that the heirs should not inquire into
other property and that they should respect the distribution made in the will, under penalty
of forfeiture of their shares in the free part, do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged litigation which, as shown by
ordinary experience, often results in a sizeable portion of the estate being diverted into the
hands of non- heirs and speculators. Whether these clauses are valid or not is a matter to
be litigated on another occasion. It is also well to note that, as remarked by the Court of
Appeals in Sideco 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, 88 Phil. 260; 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through
pure oversight is shown by his own testimony as well as by the duplicate copy of
the will, which bears a complete set of signatures in every page. The text of the
attestation clause and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held
that a testament, with the only page signed at its foot by testator and witnesses,
but not in the left margin, could nevertheless be probated (Abangan vs. Abangan,
41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a
will, the failure to mark the first page either by letters or numbers is not a fatal defect
(Lopez 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 bad faith but
without undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed
probate of the original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma: if the original is
defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can
be probated, then the objection to the signed duplicate need not be considered,
being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves
to prove that the omission of one signature in the third page of the original
testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court, already conferred
by the original publication of the petition for probate. The amended petition did
not substantially alter the one first filed, but merely supplemented it by disclosing
the existence of the duplicate, and no showing is made that new interests were
involved (the contents of Exhibit A and A-1 are admittedly identical); and
appellants were duly notified of the proposed amendment. It is nowhere proved
or claimed that the amendment deprived the appellants of any substantial right,
and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with
costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes,
Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.
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(In re: Icasiano v. Icasiano, G.R. No. L-18979, June 30, 1964)
EN BANC
[G.R. No. L-5826. April 29, 1953.]
Testate estate of the late VICENTE CAGRO.
JESUSA CAGRO, petitioner-appellee, vs. PELAGIO CAGRO, ET
AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
SYLLABUS
1.WILLS; ATTESTATION CLAUSE; LACK OF SIGNATURES OF
ATTESTING WITNESSES AT BOTTOM OF ATTESTATION CLAUSE, IS
DECISION
PARAS, C.J :
p
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied
with the formalities of the law and, therefore, should be admitted to probate. It
appears that the will was signed by the testator and was attested by three
instrumental witnesses, not only at the bottom, but also on the left-hand
margin. The witnesses testified not only that the will was signed by the
testator in their presence and in the presence of each other but also that when
they did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by the
oppositors to the validity of the will is the fact that the signatures of the
instrumental witnesses do not appear immediately after the attestation clause.
This objection is too technical to be entertained. In the case of
Abangan vs. Abangan, (40 Phil., 476), this court said that when the
testamentary dispositions "are wholly written on only one sheet signed at the
bottom by the testator and three witnesses (as the instant case), their
signatures on the left margin of said sheet would be completely purposeless."
In such a case, the court said, the requirement of the signatures on the left
hand margin was not necessary because the purpose of the law which is to
avoid the substitution of any of the sheets of the will, thereby changing the
testator's dispositions has already been accomplished. We may say the
same thing in connection with the will under consideration because while the
three instrumental witnesses did not sign immediately after the attestation
clause, the fear entertained by the majority that it may have been only added
on a subsequent occasion and not at the signing of the will, has been
We should not also overlook the liberal trend of the New Civil Code in
the matter of interpretation of wills, the purpose of which, in case of doubt, is
to give such interpretation that would have the effect of preventing intestacy
(articles 788 and 791, New Civil Code).
I am therefore of the opinion that the will in question should be admitted
to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista's dissenting opinion and may add that
the majority decision erroneously sets down as a fact that the attestation
clause was not signed, when the witnesses' signatures appear on the left
margin and the real and only question is whether such signatures are legally
sufficient.
The only answer, in our humble opinion, is yes. The law on wills does
not provide that the attesting witness should sign the clause at the bottom. In
the absence of such provision, there is no reason why signatures on the
margin are not good. A letter is not any the less the writer's simply because it
was signed, not at the conventional place but on the side or on top.
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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.
DECISION
ESGUERRA, J :
p
Petition to review on certiorari the judgment of the Court of First Instance of Cebu
allowing the probate of the last will and testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased,
opposed the allowance of the will (Exhibit "E"), alleging that the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said
instrument was executed without the testator having been fully informed of the
contents 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. Jamaoas, 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 arrangements. Balinon v. De Leon, 50 O. G. 583.) That
function would be defeated if the notary public were one of the attesting or
instrumental witnesses. For them he would be interested in sustaining the validity
of the will as it directly involves himself and the validity of his own act. It would
place him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud (Report of the Code Commission p.
106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public may, in
addition, act as a witness to the execution of the document he has notarized.
(Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43
Ill. 130) There are others holding that his signing merely as a notary in a will
nonetheless makes him a witness thereunder (Ferguson v. Ferguson, 47 S. E.
2d. 346; In Re Douglas' Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson v. Utterback, 122 So. 496; In Re Baybee's Estate 160 N. W. 900;
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 in the aforecited cases merely acted as instrumental, subscribing or attesting
witnesses, and not as acknowledging witnesses. Here the notary public acted not
only as attesting witness but also as 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 of the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of Article
805 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 that
purpose. In the circumstances, the law would not be duly 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.
|||
FIRST DIVISION
[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.
SYLLABUS
1.WILLS; ACKNOWLEDGMENT; CERTIFICATION OF NOTARY THAT
TESTAMENT WAS DULY ACKNOWLEDGED IS NOT PART OF
ACKNOWLEDGMENT WAS DULY ACKNOWLEDGED IS NOT PART OF
ACKNOWLEDGMENT OR TESTAMENTARY ACT. 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
DECISION
REYES, J.B.L., J :
p
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 these witnesses.
It is squarely contradicted by the concordant testimony of the instrumental
witnesses, Vicente Yap, Atty. Ramon C. Tabiana, and his wife Gloria
Montinola, who asserted under oath that the testament was executed by
testatrix 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 crossexamination 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 yet 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 from
contestant's counsel that had been previously ruled out by the trial Court.
testator and witnesses must 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 eodem 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.
|||
THIRD DIVISION
[G.R. No. 157451. December 16, 2005.]
LETICIA VALMONTE ORTEGA, petitioner, vs. JOSEFINA
C. VALMONTE, respondent.
Manuel T. De Guia for petitioner.
Benigno Pulmano for respondent.
SYLLABUS
1.REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; PETITION FOR REVIEW;
GENERALLY, ONLY QUESTIONS OF LAW MAY BE RAISED THEREIN;
EXCEPTION. 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.
2.ID.; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE; ALLOWANCE
OF WILL; FRAUD IN THE EXECUTION OF A WILL, EXPLAINED; BURDEN OF
PROVING EXISTENCE OF FRAUD LIES ON THE PARTY CHALLENGING THE
WILL. 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." We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution. The burden to show
otherwise shifts to the proponent of the will only upon a showing of credible
evidence of fraud. Unfortunately in this case, other than the self-serving
allegations of petitioner, no evidence of fraud was ever presented.
3.ID.; ID.; ID.; ID.; OMISSION OF SOME RELATIVES DOES NOT AFFECT THE
DUE EXECUTION OF A WILL. It is a settled doctrine that the omission of some
relatives does not affect the due execution of a will. 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."
4.ID.; ID.; ID.; ID.; CONFLICT BETWEEN DATES APPEARING ON THE WILL
DOES NOT INVALIDATE THE DOCUMENT. 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 . . . be executed and acknowledged on the same occasion." 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. Furthermore, the testator and the witnesses must acknowledge the will
before a notary public. 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."
5.ID.; ID.; ID.; ID.; ABSENT ANY SHOWING OF ILL MOTIVES, THE
TESTIMONIES OF THE SUBSCRIBING WITNESSES AND THE NOTARY
FAVORING THE WILL AND THE FINDING OF ITS DUE EXECUTION SHOULD
BE AFFIRMED. 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. 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.
6.CIVIL LAW; TESTATE SUCCESSION; CAPACITY TO MAKE A WILL; TEST.
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 testator's 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.
7.ID.; ID.; ID.; ID.; INTENT IN DISPOSITION OF PROPERTY IS IRRELEVANT
ABSENT SHOWING OF FRAUD IN THE EXECUTION OF THE 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.
8.ID.; ID.; ID.; ID.; SOUNDNESS OF MIND, ELUCIDATED. Worth reiterating in
determining soundness of mind is Alsua-Betts v. CA which held thus: "Between
DECISION
PANGANIBAN, J :
p
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
EaSCAH
"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
testator's 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 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 Leticia's family to live
with him and they took care of him. During that time, the testator's
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
In short, petitioner assails the CA's allowance of the probate of the will of
Placido Valmonte.
This Court's 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 Valmonte's will by
imputing fraud in its execution and challenging the testator's 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
testator's 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 . . . 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.
CcHDSA
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 . . . 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
AYes, Sir.
QFor what purpose?
AOur purpose is just to sign the will.
aAIcEH
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 testator's 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
Footnotes
FIRST DIVISION
[G.R. No. 174144. April 17, 2007.]
BELLA A. GUERRERO, petitioner, vs. RESURRECCION
A. BIHIS, respondent.
DECISION
CORONA, J :
p
The Scriptures tell the story of the brothers Jacob and Esau 1 , siblings who
fought bitterly over the inheritance of their father Isaac's estate. Jurisprudence is
also replete with cases involving acrimonious conflicts between brothers and
sisters over successional rights. This case is no exception.
Petitioner elevated the case to the Court of Appeals but the appellate court
dismissed the appeal and affirmed the resolution of the trial court. 4
Thus, this petition. 5
Petitioner admits that the will was acknowledged by the testatrix and the
witnesses at the testatrix's residence in Quezon City before Atty. Directo and
that, at that time, Atty. Directo was a commissioned notary public for and in
Caloocan City. She, however, asserts that the fact that the notary public was
acting outside his territorial jurisdiction did not affect the validity of the notarial
will.
Did the will "acknowledged" by the testatrix and the instrumental witnesses
before a notary public acting outside the place of his commission satisfy the
requirement under Article 806 of the Civil Code? It did not.
Article 806 of the Civil Code provides:
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.
An acknowledgment is the act of one who has executed a deed in going before
some competent officer and declaring it to be his act or deed. 8 In the case of a
notarial will, that competent officer is the notary public.
The acknowledgment of a notarial will coerces the testator and the instrumental
witnesses to declare before an officer of the law, the notary public, that they
executed and subscribed to the will as their own free act or deed. 9 Such
declaration is under oath and under pain of perjury, thus paving the way for the
criminal prosecution of persons who participate in the execution of spurious wills,
or those executed without the free consent of the testator. 10 It also provides a
further degree of assurance that the testator is of a certain mindset in making the
testamentary dispositions to the persons instituted as heirs or designated as
devisees or legatees in the will. 11
Acknowledgment can only be made before a competent officer, that is, a lawyer
duly commissioned as a notary public. In this connection, the relevant provisions
of the Notarial Law provide:
SECTION 237.Form of commission for notary public. The
appointment of a notary public shall be in writing, signed by the judge,
and substantially in the following form:
GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ____________
This is to certify that ______, of the municipality of ______ in said
province, was on the ____ day of ______, anno Domini nineteen
hundred and _____, appointed by me a notary public, within and for
the said province, for the term ending on the first day of January, anno
Domini nineteen hundred and _____.
__________________
Judge of the Court of
First Instance 12 of said
Province
AECDHS
Since Atty. Directo was not a commissioned notary public for and in Quezon City,
he lacked the authority to take the acknowledgment of the testatrix and the
instrumental witnesses. In the same vein, the testatrix and her witnesses could
not have validly acknowledged the will before him. Thus, Felisa Tamio de
Buenaventura's last will and testament was, in effect, not acknowledged as
required by law.
Moreover, Article 5 of the Civil Code provides:
ART. 5.Acts executed against the provisions of mandatory or prohibitory
laws shall be void, except when the law itself authorizes their validity.
The violation of a mandatory or a prohibitory statute renders the act illegal and
void unless the law itself declares its continuing validity. Here, mandatory and
prohibitory statutes were transgressed in the execution of the alleged
"acknowledgment." The compulsory language of Article 806 of the Civil Code
was not complied with and the interdiction of Article 240 of the Notarial Law
was breached. Ineluctably, the acts of the testatrix, her witnesses and Atty.
Directo were all completely void.
The Court cannot turn a blind eye to Atty. Directo's participation in the
preparation, execution and unlawful "acknowledgment" of Felisa Tamio de
Buenaventura's will. Had he exercised his notarial commission properly, the
intent of the law to effectuate the decedent's final statements 15 as expressed in
her will would not have come to naught. 16Hence, Atty. Directo should show
cause why he should not be administratively sanctioned as a member of the bar
and as an officer of the court.
HEDCAS
1.Jacob and Esau were the sons of Isaac and Rebekah. Even before they were born,
they were struggling against each other in the womb of their mother. Their
prenatal striving foreshadowed later conflict. (Genesis 25:21-26) Jacob, the
younger of the two, desired Esau's birthright the special honor that Esau
possessed as the older son which entitled him to a double portion of his father's
inheritance. Jacob was later on able to acquire not only Esau's birthright and
superior right to inheritance but also their father's blessing. (Genesis 25:27-34,
27: 1-40)
16.For one, he testified during the proceedings in the trial court that the will was
executed and signed by the testatrix in his presence and in the presence of the
instrumental witnesses in the decedent's house in Quezon City and it was also
there where the same was acknowledged although his commission was for
Caloocan City. He also made it appear in the acknowledgment that the testatrix
and the witnesses personally appeared before him to execute and
knowledge the will in Caloocan City where he was commissioned as a notary
public.
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FIRST DIVISION
[A.C. No. 5281. February 12, 2008.]
MANUEL L. LEE, complainant, vs. ATTY. REGINO
B. TAMBAGO, respondent.
RESOLUTION
CORONA, J :
p
The will was purportedly executed and acknowledged before respondent on June
30, 1965. 1 Complainant, however, pointed out that the residence certificate 2 of
the testator noted in the acknowledgment of the will was dated January 5,
1962. 3 Furthermore, the signature of the testator was not the same as his
signature as donor in a deed of donation 4 (containing his purported genuine
signature). Complainant averred that the signatures of his deceased father in the
will and in the deed of donation were "in any way (sic) entirely and diametrically
opposed from (sic) one another in all angle[s]." 5
Complainant also questioned the absence of notation of the residence
certificates of the purported witnesses Noynay and Grajo. He alleged that their
signatures had likewise been forged and merely copied from their respective
voters' affidavits.
Complainant further asserted that no copy of such purported will was on file in
the archives division of the Records Management and Archives Office of the
National Commission for Culture and the Arts (NCCA). In this connection, the
certification of the chief of the archives division dated September 19, 1999
stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available
in this Office['s] files. 6
ICDcEA
Respondent in his comment dated July 6, 2001 claimed that the complaint
against him contained false allegations: (1) that complainant was a son of the
decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious.
He alleged that complainant was "not a legitimate son of Vicente Lee, Sr. and the
last will and testament was validly executed and actually notarized by respondent
per affidavit 7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and
corroborated by the joint affidavit 8 of the children of Vicente Lee, Sr., namely
Elena N. Lee and Vicente N. Lee, Jr. . . . ." 9
ATCEIc
Respondent further stated that the complaint was filed simply to harass him
because the criminal case filed by complainant against him in the Office of the
Ombudsman "did not prosper".
Respondent did not dispute complainant's contention that no copy of the will was
on file in the archives division of the NCCA. He claimed that no copy of the
contested will could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action
against him as he (complainant) did not first file an action for the declaration of
nullity of the will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation. 10
In his report, the investigating commissioner found respondent guilty of violation
of pertinent provisions of the old Notarial Law as found in the Revised
Administrative Code. The violation constituted an infringement of legal ethics,
particularly Canon 1 11 and Rule 1.01 12 of the Code of Professional
Responsibility (CPR). 13 Thus, the investigating commissioner of the IBP
Commission on Bar Discipline recommended the suspension of respondent for a
period of three months.
HDTISa
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of
the Investigating Commissioner of the above-entitled case, herein made
part of this Resolution as Annex "A"; and, finding the recommendation
fully supported by the evidence on record and the applicable laws and
rules, and considering Respondent's failure to comply with the laws in
the discharge of his function as a notary public, Atty. Regino
B. Tambago is hereby suspended from the practice of law for one year
and Respondent's notarial commission is Revoked and
Disqualified from reappointment as Notary Public for two (2) years.
14
The law provides for certain formalities that must be followed in the execution of
wills. The object of solemnities surrounding the execution of wills is to close the
door on bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. 16
aSIETH
HDTISa
AEITDH
The importance of such act was further reiterated by Section 6 of the Residence
Tax Act 26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges
any document before a notary public . . . it shall be the duty of such
person . . . with whom such transaction is had or business done, to
require the exhibition of the residence certificate showing payment of the
residence taxes by such person . . . .
In the issuance of a residence certificate, the law seeks to establish the true and
correct identity of the person to whom it is issued, as well as the payment of
residence taxes for the current year. By having allowed decedent to exhibit an
expired residence certificate, respondent failed to comply with the requirements
of both the old Notarial Law and the Residence Tax Act. As much could be said
of his failure to demand the exhibition of the residence certificates of Noynay and
Grajo.
On the issue of whether respondent was under the legal obligation to furnish a
copy of the notarized will to the archives division, Article 806 provides:
IDcTEA
These gross violations of the law also made respondent liable for violation of his
oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of
the Rules of Court 37 and Canon 1 38 and Rule 1.01 39 of the CPR.
cHSIAC
The first and foremost duty of a lawyer is to maintain allegiance to the Republic
of the Philippines, uphold the Constitution and obey the laws of the land. 40 For a
lawyer is the servant of the law and belongs to a profession to which society has
entrusted the administration of law and the dispensation of justice. 41
While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the
basic requirements of good citizenship. As a servant of the law, a lawyer should
moreover make himself an example for others to emulate. 42 Being a lawyer, he
is supposed to be a model in the community in so far as respect for the law is
concerned. 43
The practice of law is a privilege burdened with conditions. 44 A breach of these
conditions justifies disciplinary action against the erring lawyer. A disciplinary
sanction is imposed on a lawyer upon a finding or acknowledgment that he has
engaged in professional misconduct. 45 These sanctions meted out to errant
lawyers include disbarment, suspension and reprimand.
HaAIES
from the practice of law. It is, as well, a sufficient basis for the revocation of his
commission 50 and his perpetual disqualification to be commissioned as a notary
public. 51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the Lawyer's Oath; (2) Rule 138 of the
Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional
Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old
Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for
one year and his notarial commission REVOKED. Because he has not lived up to
the trustworthiness expected of him as a notary public and as an officer of the
court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary
public.
prcd
Let copies of this Resolution be furnished to all the courts of the land, the
Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as
made part of the personal records of respondent.
SO ORDERED.
Puno, C.J., Sandoval-Gutierrez, Azcuna and Leonardo-de Castro, JJ., concur.
Footnotes
1.Rollo, p. 3.
2.Now known as Community Tax Certificate.
3.Page two, Last Will and Testament of Vicente Lee, Sr., rollo, p. 3.
4.Id., p. 10.
5.Id., p. 1.
6.Rollo, p. 9.
7.Dated July 11, 2001. Id., p. 94.
8.Dated July 11, 2001. Id., p. 95.
9.Id., p. 90.
10.Rollo, p. 107.
EATCcI
29."When the original document is unavailable. When the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof
of its execution or existence and the cause of its unavailability without bad faith
on his part, may prove its contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of witnesses in the order stated."
RULES OF COURT, Rule 130, Sec. 5.
EATcHD
30.Supra note 6.
31.Rollo, p. 105.
32.Bon v. Ziga, A.C. No. 5436, 27 May 2004, 429 SCRA 185.
33.Zaballero v. Montalvan, A.C. No. 4370, 25 May 2004, 429 SCRA 78.
34.Annex "A", Report and Recommendation by Commissioner Elpidio G. Soriano III,
dated February 27, 2006, rollo, p. 12.
35.Id., p. 13.
36.REVISED ADMINISTRATIVE CODE, Book 1, Title IV, Chapter 11.
37."Duties of attorneys. It is the duty of an attorney:
(a)To maintain allegiance to the Republic of the Philippines and to support the
Constitution and obey the laws of the Philippines;
(b). . .," RULES OF COURT, Rule 138, Sec. 20, par. (a).
38.CANON 1, supra note 11.
39.Rule 1.01, supra note 12.
40.Montecillo v. Gica, 158 Phil. 443 (1974). Zaldivar v. Gonzales, G.R. No. L-79690707, 7 October 1988, 166 SCRA 316.
41.Agpalo, Ruben E., LEGAL AND JUDICIAL ETHICS, 7th Edition (2002), Rex
Bookstore, Inc., p. 69. Comments of IBP Committee that drafted the Code of
Professional Responsibility, pp. 1-2 (1980).
42.Id.
43.Id.
44.Agpalo, Ruben E., LEGAL AND JUDICIAL ETHICS, 7th Edition (2002), Rex
Bookstore, Inc., p. 465.
45.Guidelines for Imposing Lawyer Sanctions, Integrated Bar of the Philippines
Commission on Bar Discipline.
TIESCA
46.San Jose Homeowners Association, Inc. v. Romanillos, A.C. No. 5580, 15 June
2005, 460 SCRA 105.
47.Santiago v Rafanan, supra note 22 at 101. Alitagtag v. Garcia, A.C. No. 4738, 10
June 2003, 403 SCRA 335.
48.Suzuki v. Tiamson, A.C. No. 6542, 30 September 2005, 471 SCRA 140; Amaya v.
Tecson, A.C. No. 5996, 7 February 2005, 450 SCRA 510, 516.
49.Bantolo v. Castillon, Jr., A.C. No. 6589, 19 December 2005, 478 SCRA 449.
50.Cabanilla v. Cristal-Tenorio, A.C. No. 6139, 11 November 2003, 415 SCRA
361. Guerrero v. Hernando, 160-A Phil. 725 (1975).
51.Tan Tiong Bio v. Gonzales, A.C. No. 6634, 23 August 2007.
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