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EN BANC

[G.R. No. L-4067. November 29, 1951.]


In the Matter of the Will of ANTERO MERCADO, deceased.
ROSARIO GARCIA, petitioner, vs. JULIANA LACUESTA, ET
AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto, for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason, for respondents.
SYLLABUS
1.WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF
TESTATOR'S NAME AT LATTER'S DIRECTION. When the testator
expressly caused another to sign the former's name, this fact must be recited
in the attestation clause. Otherwise, the will is fatally defective.
2.ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross
appearing on a will is not the usual signature of the testator or even one of the
ways by which he signed his name, that cross cannot be considered a valid
signature.

DECISION

PARAS, C.J :
p

This is an appeal from a decision of the Court of Appeals disallowing


the will of Antero Mercado dated January 3, 1943. The will is written in the
Ilocano dialect and contains the following attestation clause:
"We, the undersigned, by these presents do declare that the
foregoing testament of Antero Mercado was signed by himself and also

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.

(Sgd.)"NUMERIANO EVANGELISTA(Sgd.)ROSENDO CORTES


(Sgd.)BIBIANA ILLEGIBLE"

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

is a sufficient signature and the signature of Atty. Florentino Javier is a


surplusage. Petitioner's theory is that the cross is as much a signature as a
thumbmark, the latter having been held sufficient by this Court in the cases of
De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he signed his
name. After mature reflection, we are not prepared to liken the mere sign of a
cross to a thumbmark, and the reason is obvious. The cross cannot and does
not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine whether
there is a sufficient recital in the attestation clause as to the signing of the will
by the testator in the presence of the witnesses, and by the latter in the
presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against
the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo,
JJ., concur.
|||

(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

1.WILLS; SIGNING BY THIRD PERSON AT TESTATOR'S REQUEST.


With respect to the validity of a will, it is not important that the person who
writes the name of the testator should also sign his own; the important thing is
that it should clearly appear that the name of the testator was signed at his
express direction, in the presence of three witnesses, and in the presence of
the testator and of each other.

DECISION

MORELAND, J :
p

This case is closely connected with the case of


Faustino Cabacungan vs. Pedro Barut and another, No. 6284, 1 just decided by
this court, wherein there was an application for the probate of an alleged last
will and testament of the same person the probate of whose will is involved in
this suit.
This appeal arises out of an application on the part of Pedro Barut to
probate the last will and testament of Maria Salomon, deceased. It is alleged
in the petition for probate that Maria Salomon died on the 7th day of
November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and
testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda,
Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to
the execution thereof. By the terms of said will Pedro Barut received the larger
part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano
dialect. Its translation into Spanish appears at page 11. After disposing of her
property the testatrix revoked all former wills by her made. She also stated in
said will that being unable to read or write, the same had been read to her by
Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo
Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the
relatives of the deceased on various grounds, among them that a later will
had been executed by the deceased. The will referred to as being a later will

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."

From these provisions it is entirely clear that, with respect to


the validity of the will, it is unimportant whether the person who writes the
name of the testatrix signs his own or not. The important thing is that it clearly
appears that the name of the testatrix was signed at her express direction in
the presence of three witnesses and that they attested and subscribed it in
her presence and in the presence of each other. That is all the statute
requires. It may be wise as a practical matter that the one who signs the
testator's name signs also his own; but that is not essential to the validity of
the will. Whether one person or another signed the name of the testatrix in
this case is absolutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows that the requirement laid
down by the trial court, if it did lay it down, is absolutely unnecessary under
the law; and the reasons underlying the provisions of the statute relating to
the execution of wills do not in any sense require such aprovision. From the
standpoint of language it is an impossibility to draw from the words of the law
the inference that the person who signs the name of the testator must sign his
own name also. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The
name of a person who is unable to write may be signed by another by express
direction to any instrument known to the law. There is no necessity whatever,
so far as the validity of the instrument is concerned, for the person who writes
the name of the principal in the document to sign his own name also. As a
matter of policy it may be wise that he do so inasmuch as it would give such
intimation as would enable a person proving the document to demonstrate

more readily the execution by the principal. But as a matter of essential


validity of the document, it is unnecessary. The main thing to be established in
the execution of the will is the signature of the testator. If that signature is
proved, whether it be written by himself or by another at his request, it is none
the less valid, and the fact of such signature can be proved as perfectly
and completely when the person signing for the principal omits to sign his own
name as it can when he actually signs. To hold a will invalid for the lack of the
signature of the person signing the name of the principal is, in the particular
case, a complete subrogation of the law of wills, as it rejects and destroys a
will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition
to the doctrine which we have herein laid down. They are Ex parte Santiago
(4 Phil. Rep., 692),Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs.
Concepcion (Phil. Rep., 551). Not one of these cases is in point.

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.

Aside from the presentation of an alleged subsequent will the


contestants in this case have set forth no reason whatever why the will
involved in the present litigation should not be probated. The due and legal
execution of the will by the testatrix is clearly established by the proofs in this
case. Upon the facts, therefore, the will must be probated. As to the defense
of a subsequent will, that is resolved in case No. 6284 of which we have
already spoken. We there held that said later will was not the will of the
deceased.
The judgment of the probate court must be and is hereby reversed and
that court is directed to enter an order in the usual form probating the will
involved in this litigation and to proceed with such probate in accordance with
law.

Arellano, C.J., Mapa and Carson, JJ., concur.

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.

Various and considerable in number have been the decisions rendered


by this court in which, as will be seen further on, upon applying the said
section 618 of the Code of Civil Procedure and requiring its observance in
cases where the testator or testatrix is unable or does not know how to sign
his or her name, expressly prescribe the practical method of complying with
the provisions of the law on the subject. Among these decisions several were
written by various justices of this court, some of whom are no longer on this
bench, as they have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin
Santiago, 1 concerning the probate of a will, reads as follows:
"Wills, authentication of. Where a will is not signed by a
testator but by some other person in his presence and by his direction,
such other person should affix the name of the testator thereto, and it is
not sufficient that he sign his own name for and instead of the name of
the testator."

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas, 1 in


the matter of the probate of a will, states:
"1.Wills, requisites of; Civil Code, article repealed. Article 695
of the Civil Code was repealed by section 618 of the Code of Civil
Procedure; consequently where a testator is unable to sign his name,
the person signing at his request must write at the bottom of the will the
full name of the testator in the latter's presence, and by his express
direction, and then sign his own name in full."

In the syllabus of decision No. 2586, Tomas Guison vs. Maria


Concepcion, 2 the following statements appear:
"Wills; inability to sign; signature by another. The testatrix was
not able to sign her name to the will, and she requested another person
to sign it for her.Held, That the will was not duly executed. (Following Ex
parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Santiago, No.
2002, August 18, 1905.)"

The following syllabus precedes decision No. 3907 3


"Execution of wills. Where it appears in a will that the testator has
stated that by reason of his inability to sign his name he requested one of the

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."

The following statement appears in the syllabus of case No. 4132, in


the matter of the will of Maria Siason: 1
"The recital of the name of the testator as written below the will at
his request serves as a signature by a third person."

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."

In the syllabus of decision No. 4454, 2 Ex parte Ondevilla et al., the


following appears:
"The testatrix was unable to sign her will with her own hand and
requested another person to sign for her in her presence. This the latter
did, first writing the name of the testatrix and signing his own name
below: Held, That the signature of the testatrix so affixed is sufficient and

a will thus executed is admissible to probate. (Ex parte Arcenas, 4 Phil.


Rep., 700.)"

The syllabus of decision No. 5149 3 sets forth that:


"The legality of a will is not affected by the insertion, supposed to
have been made subsequently, of another name before that of the
testator when such name may be treated as nonexistent without
affecting its validity."

Among the conclusions contained in this last decision the following is


found:
"Although the said words 'For Simplicia de los Santos' be
considered is inserted subsequently, which we neither affirm nor deny,
because a specific determination either way is unnecessary, in our
opinion the signature for the testatrix placed outside of the body of the
will contains the name of the testatrix as if she signed the will, and also
the signature of the witness who, at her request, wrote the name of the
testatrix and signed for her, affirming the truth of this fact, attested by the
other witnesses then present. And this fully complies with the provisions
of section 618 of the Act."

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

aforesaid decisions, it was deemed to be a complement and integral part of


the required conditions for the fulfillment of the provisions of the law.
It is indisputable that the latter does not require the said subscription
and signature of the person requested to affix to the will the name of the
testator or testatrix who is not able to sign; but by stating in the decisions
hereinabove quoted that the name and surname of the said person should be
affixed by him, no act prohibited by law was recommended or suggested, nor
may such a detail be understood to be contrary or opposed to the plain
provisions thereof.
In the preceding decision itself, it is recognized to be convenient and
even prudent to require that the person requested to write the name of the
testator or testatrix in the will also sign the instrument with his own name and
surname. This statement induces us to believe that, in behalf of the
inhabitants of this country and for the sake of an upright administration of
justice, it should be maintained that such a signature must appear in the will,
since no harm could accrue to anyone thereby and, on the contrary, it would
serve as a guarantee of the certainty of the act performed and also might
eliminate some possible cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the
complete repeal of article 695 of the Civil Code and, while he concedes that,
in the examination and qualification of a will for the purpose of its probate, one
has but to abide by the provisions of the said section 618 of the Code of Civil
Procedure, the sole law applicable in the matter, yet, perhaps imbued with
and strongly impelled by a traditional conception of the laws which he has
known since his youth, relative to the form of execution of testaments, he
believed it to be a very natural and common sense requisite that the
signature, with his own name and surname, of the person requested to write
in the will the name and surname of the testator or testatrix should form a part
of the provisions of the aforementioned section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of
the signature of the person before referred to a requisite deemed to be
convenient and prudent in the majority opinionformed a part of the
provisions of the law, since the latter contains nothing that prohibits it.
The aforementioned different decisions were drawn up in the form in which

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.

Without being understood to criticize the provision contained in the said


section 618 of the Code of Civil Procedure, it will not be superfluous to
mention that the system adopted in this section is the same as was in vogue
under the former laws that governed in these Islands, with respect to
witnesses who were not able or did not know how to sign their testimony
given in criminal or civil cases, in which event any person at all might write the
name and surname of the witness who was unable or did not know how to
sign, at the foot of his deposition, where a cross was then drawn, and, this
done, it was considered that the instrument had been signed by the witness,
though it is true that all these formalities were performed before the judge and
the clerk or secretary of the court, which thereupon certified that such
procedure was had in accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of
Civil Procedure, the person who writes the name and surname of the testator
or testatrix does so by the order and express direction of the one or of the
other, and this fact must be recorded in the will; but in the matter of the
signature of a deposition, the witness, who could not or did not know how to
sign, did not need to designate anyone to write the deponent's name and
surname, and in practice the witness merely made a cross beside his name
and surname, written by whomever it be.
With regard to the execution of wills in accordance with the provisions
of previous statutes, among them those of the Civil Code, the person or
witness requested by the testator or testatrix who was not able or did not
know how to sign, authenticated the will by signing it with his own name and
surname, preceded by the words "at the request of the testator or testatrix."
Paragraph 2 of article 695 of the Civil Code contains the following provisions
bearing on the subject:

"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."

So that, prior to the enforcement in this country in 1901 of the Code of


Civil Procedure, the procedure prescribed by the old laws with respect to the
signing of a will by a testator or testatrix who did not know how or who could
not sign, consisted in that the person appointed and requested by the testator
or testatrix to sign in his or her stead, such fact being recorded in the will,
merely affixed at the bottom of the will and after the words "at the request of
the testator," his own name, surname and paragraph.
It is not at all strange that the attorneys of this country imbued with and
inspired by these legal provisions, which, it may be said, are traditional to
them in the ideas they have formed of the existing laws in the matter of
procedure in compliance therewith as regards the execution and signing of a
will, should have believed that, after the name and surname of the testator or
testatrix had been written at the foot of the will, the person who signed the
instrument in the manner mentioned should likewise sign the same with his
own name and surname.
If in various decisions it has been indicated that the person who, under
the express direction of the testator or testatrix, wrote the latter's or the
former's name and surname, should also sign the will with his own name and
surname, and since this suggestion is not opposed or contrary to the law, the
undersigned is of opinion that itought not to be modified or amended, but that,
on the contrary, it should be maintained as a requisite established by the
jurisprudence of this court, inasmuch as such a requisite is not contrary to
law, to public order, or to good custom, is in consonance with a tradition of
this country, does not prejudice the testator nor those interested in an
inheritance, and, on the contrary, constitutes another guarantee of the truth
and authenticity of the letters with which the name and surname of the
testator or testatrix are written, in accordance with his or her desire as
expressed in the will.
Even though the requisites referred to were not recognized in
jurisprudence and were unsupported by any legal doctrine whatever, yet,

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

1.4 Phil. Rep., 692.


1.4 Phil. Rep., 700
2.13 Phil. Rep., 551.
3.Abaya vs. Zalamero (10 Phil., Rep., 357).
1.10 Phil. Rep., 504.
2.13 Phil., Rep., 470.
3.Macapinlac vs. Alimurong (16 Phil Rep., 41).

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(Barut v. Cabacungan, G.R. No. 6285, February 15, 1912)

EN BANC
[G.R. No. L-5971. February 27, 1911.]

BEATRIZ NERA, ET AL., plaintiffs-appellees, vs.


NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
SYLLABUS
1.EXECUTION OF WILLS; POSITION OF TESTATOR AND WITNESS
WHEN WILL IS SUBSCRIBED. The position of testator and of the
witnesses to a will, at the moment of the subscription by each, must be such
that they may see each other sign if they choose to do so.
2.ID.; ID.; SIGNING IN THE PRESENCE OF EACH OTHER. The
question whether the testator and the subscribing witnesses to an alleged will
sign the instrument in the presence of each other does not depend upon proof
of the fact that their eyes were actually cast upon the paper at the moment of
its subscription by each of them, but whether at that moment existing
conditions and the position of the parties, with relation to each other, were
such that by merely casting their eyes in the proper direction they could have
seen each other sign.
3.ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WH.L IS
SIGNED. If one subscribing witness to a will is shown to have been in an
outer room at the time when the testator and the other witnesses attach their
signatures to the instrument in an inner room, the will would be held invalid
the attaching of the said signatures, under such circumstances, not being
done "in the presence" of the witness in the outer room.

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."

But it is especially to be noted that the position of the parties with


relation to each other at the moment of the subscription of each signature,
must be such that they may see each other sign if they choose to do so. This,
of course, does not mean that the testator and the subscribing witnesses may
be held to have executed the instrument in the presence of each other if it
appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The
evidence in the case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Jaboneta that he could
see everything that took place by merely casting his eyes in the proper
direction andwithout any physical obstruction to prevent his doing so." And the
decision merely laid down the doctrine that the question whether the testator
and the subscribing witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of the fact that their eyes
were actually cast upon the paper at the moment of its subscription by each of
them, but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in the proper
direction they could have seen each other sign. To extend the doctrine further
would open the door to the possibility of all manner of fraud, substitution, and
the like, and would defeat the purpose for which this particular condition is
prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of
Pedro Rimando, deceased, is affirmed with costs of this instance against the
appellant.
Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.

|||

(Nera v. Rimando, G.R. No. L-5971, February 27, 1911)

EN BANC

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


IN THE MATTER OF THE TESTATE ESTATE OF THE LATE
JOSEFA VILLACORTA. CELSO ICASIANO, petitionerappellee, vs. NATIVIDAD ICASIANO and
ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinsin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enriquez Icasiano.
SYLLABUS
1.WILLS; PROBATE; POLICY OF COURT AGAINST UNDUE CURTAILMENT
OF TESTAMENTARY PRIVILEGE. The precedents cited in the case at bar
exemplify the Court's policy to require satisfaction of the legal requirements in the
probate of a will in order to guard against fraud and bad faith but without undue
or unnecessary curtailment of the testamentary privilege.
2.ID.; ID.; HANDWRITING EXPERT MUST HAVE SUFFICIENT STANDARDS
OF COMPARISON TO PROVE FORGERY OF TESTATRIX'S SIGNATURE.
The opinion of a handwriting expert trying to prove forgery of the testatrix's
signature fails to convince the court, not only because it is directly contradicted
by another expert but principally because of the paucity of the standards used by
him (only three other signatures), considering the advanced age of the testatrix,
the evident variability of her signature, and the effect of writing fatigue.
3.ID.; ID.; VARIANCE IN INK COLOR NOT RELIABLE WHEN WRITINGS
AFFIXED TO DIFFERENT KINDS OF PAPER. The slight variance in
blueness of the ink in the admitted and questioned signatures does not appear
reliable, considering that the standard and challenged writings were affixed to
different kinds of paper.
4.ID.; ID.; FRAUD OF UNDUE INFLUENCE, DIVERSITY OF APPORTIONMENT
AND PROHIBITION AGAINST CONTEST NO EVIDENCE OF. Neither

diversity of apportionment nor prohibition against contest is evidence of fraud or


undue influence in the execution of a will.
5.ID.; ID.; FRAUD AND UNDUE INFLUENCE ARE REPUGNANT
ALLEGATIONS. Allegation of fraud and undue influence are mutually
repugnant and exclude each other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity of the will.
6.ID.; ID.; INADVERTENT FAILURE OF AN ATTESTING WITNESS TO AFFIX
HIS SIGNATURE TO ONE PAGE OF A WILL NOT FATAL. The inadvertent
failure of an attesting witness to affix his signature to one page of a testament,
due to the simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate.
7.ID.; ID.; SIGNED CARBON DUPLICATE OF WILL NEEDS NO PUBLICATION.
That the signed carbon duplicate of a will was produced and admitted without
a new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate, where the
amended petition did not substantially alter the first one filed but merely
supplemented it by disclosing the existence of said duplicate.

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

those of the testatrix becomes extremely hazardous. This is particularly so since


the comparison charts Nos. 3 and 4 fail to show convincingly that there are
radical differences that would justify the charge of forgery, taking into account the
advanced age of the testatrix, the evident variability of her signatures, and the
effect of writing fatigue, the duplicate being signed right after the original. These
factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering that standard and
challenged writings were affixed to different kinds of paper, with different
surfaces and reflecting power. On the whole, therefore, we do not find the
testimony of the 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.

|||

(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

FATAL DEFECT. Inasmuch as the signatures of the three witnesses to the


will do not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin, the
will is fatally defective. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures.

DECISION

PARAS, C.J :
p

This is an appeal interposed by the oppositors from a decision of the


Court of First Instance of Samar, admitting to probate the will allegedly
executed by VicenteCagro who died in Laoangan, Pambujan, Samar, on
February 14, 1949.
The main objection insisted upon by the appellants is that the will is
fatally defective, because its attestation clause is not signed by the attesting
witnesses. There is no question that the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct.
The attestation clause is "a memorandum of the facts attending the execution
of the will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures
at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and may
be deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the will
be signed on the left-hand margin of all its pages. If an attestation clause not
signed by the three witnesses at the bottom thereof, be admitted as sufficient,

it would be easy to add such clause to a will on a subsequent occasion and in


the absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the
will in question denied. So ordered with costs against the petitioner and
appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

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

obviated by the uncontradicted testimony of said witnesses to the effect that


such attestation clause was already written in the will when the same was
signed.
The following observation made by this court in the Abangan case is
very fitting:
"The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and
frustrative of the testator's last will, must be disregarded."(supra)

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.
|||

(Cargo v. Cargo, G.R. No. L-5826, April 29, 1953)

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.

|||

(Cruz v. Villasor, G.R. No. L-32213, November 26, 1973)

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

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 eodem loco".

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.

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 propieda) 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 testratrix and the
witnesses at 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 wellestablished 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 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.

|||

(Javellana v. Ledesma, G.R. No. L-7179, June 30, 1955)

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

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."

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

The assailed Resolution denied petitioner's Motion for Reconsideration.


The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
". . .: Like so many others before him, Placido toiled and lived for a long
time in the United States until he finally reached retirement. In 1980,
Placido finally came home to stay in the Philippines, and he lived in the
house and lot located at #9200 Catmon St., San Antonio Village, Makati,
which he owned in common with his sister Ciriaca Valmonte and titled in
their names in TCT 123468. Two years after his arrival from the United
States and at the age of 80 he wed Josefina who was then 28 years old,
in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5,
1982. But in a little more than two years of wedded bliss, Placido died on
October 8, 1984 of a cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English
and consisting of two (2) pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. The first page contains the entire
testamentary dispositions and a part of the attestation clause, and was
signed at the end or bottom of that page by the testator and on the left
hand margin by the three instrumental witnesses. The second page
contains the continuation of the attestation clause and the
acknowledgment, and was signed by the witnesses at the end of the
attestation clause and again on the left hand margin. It provides in the
body that:
'LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN
THE NAME OF THE LORD AMEN:
'I, PLACIDO VALMONTE, of legal age, married to Josefina
Cabansag Valmonte, and a resident of 9200 Catmon Street,
Makati, Metro Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this to be my last
will and testament:
1.It is my will that I be buried in the Catholic Cemetery, under the
auspices of the Catholic Church in accordance with the rites and
said Church and that a suitable monument to be erected and

provided my by executrix (wife) to perpetuate my memory in the


minds of my family and friends;
2.I give, devise and bequeath unto my loving wife, JOSEFINA
C. VALMONTE, one half (1/2) portion of the follow-described
properties, which belongs to me as [co-owner]:
a.Lot 4-A, Block 13 described on plan Psd-28575, LRC,
(GLRO), situated in Makati, Metro Manila, described
and covered by TCT No. 123468 of the Register of
Deeds of Pasig, Metro-Manila registered jointly as
co-owners with my deceased sister
(Ciriaca Valmonte), having share and share alike;
b.2-storey building standing on the above-described
property, made of strong and mixed materials used
as my residence and my wife and located at No.
9200 Catmon Street, Makati, Metro Manila also
covered by Tax Declaration No. A-025-00482,
Makati, Metro-Manila, jointly in the name of my
deceased sister, Ciriaca Valmonte and myself as
co-owners, share and share alike or equal coowners thereof;
3.All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA which
is in the possession of my nephew, and all others whatsoever and
wherever found, I give, devise and bequeath to my said wife,
Josefina C. Valmonte;
4.I hereby appoint my wife, Josefina C. Valmonte as sole
executrix of my last will and testament, and it is my will that said
executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th
day of June 1983 in Quezon City, Philippines.'
"The allowance to probate of this will was opposed by Leticia on the
grounds that:

1.Petitioner failed to allege all assets of the testator, especially


those found in the USA;
2.Petitioner failed to state the names, ages, and residences of the
heirs of the testator; or to give them proper notice pursuant
to law;
3.Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;
4.Testator was mentally incapable to make a will at the time of the
alleged execution he being in an advance sate of senility;
5.Will was executed under duress, or the influence of fear or
threats;
6.Will was procured by undue and improper influence and
pressure on the part of the petitioner and/or her agents
and/or assistants; and/or
7.Signature of testator was procured by fraud, or trick, and he did
not intend that the instrument should be his will at the time
of affixing his signature thereto;'
and she also opposed the appointment as Executrix of Josefina alleging
her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as witnesses
the notary public Atty. Floro Sarmiento who prepared and notarized the
will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and
Feliza Gomez and Josie Collado. For the opposition, the oppositor
Leticia and her daughter Mary Jane Ortegatestified.

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 attesting witnesses to the will corroborated the testimony of the


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

"The oppositor Leticia declared that Josefina should not inherit alone
because aside from her there are other children from the siblings of
Placido who are just as entitled to inherit from him. She attacked the
mental capacity of the testator, declaring that at the time of the execution
of the notarial will the testator was already 83 years old and was no
longer of sound mind. She knew whereof she spoke because in 1983
Placido lived in the Makati residence and asked 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

Ruling of the Court of Appeals


Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of the notary public
and the subscribing witnesses who had acknowledged the due execution of the
will. Moreover, it held that the testator had testamentary capacity at the time of
the execution of the will. It added that his "sexual exhibitionism and unhygienic,
crude and impolite ways" 6 did not make him a person of unsound mind.
Hence, this Petition. 7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to great
respect.
"II.
Whether or not the signature of Placido Valmonte in the subject will was
procured by fraud or trickery, and that Placido Valmonte never intended
that the instrument should be his last will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at the time
he allegedly executed the subject will." 8

In short, petitioner assails the 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

The pertinent transcript of stenographic notes taken on June 11, 1985,


November 25, 1985, October 13, 1986, and October 21, 1987 as quoted by
the CA are reproduced respectively as follows:
"Atty. Floro Sarmiento:
QYou typed this document exhibit C, specifying the date June 15 when
the testator and his witnesses were supposed to be in your office?
AYes sir.
QOn June 15, 1983, did the testator and his witnesses come to your
house?
AThey did as of agreement but unfortunately, I was out of town.
xxx xxx xxx
QThe document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date
when the document was acknowledged?
AYes sir.
QWhat about the date when the testator and the three witnesses affixed
their respective signature on the first and second pages of exhibit
C?
AOn that particular date when it was acknowledged, August 9, 1983.
QWhy did you not make the necessary correction on the date appearing
on the body of the document as well as the attestation clause?
ABecause I do not like anymore to make some alterations so I put it in
my own handwriting August 9, 1983 on the acknowledgement.
(tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
QIt appears on the first page Mr. Witness that it is dated June 15, 1983,
whereas in the acknowledgement it is dated August 9, 1983, will
you look at this document and tell us this discrepancy in the date?
AWe went to Atty. Sarmiento together with Placido Valmonte and the
two witnesses; that was first week of June and Atty. Sarmiento

told us to return on the 15th of June but when we returned, Atty.


Sarmiento was not there.
QWhen you did not find Atty. Sarmiento on June 15, 1983, did you again
go back?
AWe returned on the 9th of August and there we signed.
QThis August 9, 1983 where you said it is there where you signed, who
were your companions?
AThe two witnesses, me and Placido Valmonte. (tsn, November 25,
1985, pp. 7-8)
Felisa Gomez on cross-examination:
QWhy did you have to go to the office of Atty. Floro Sarmiento, three
times?
xxx xxx xxx
AThe reason why we went there three times is that, the first week of
June was out first time. We went there to talk to Atty. Sarmiento
and Placido Valmonte about the last will and testament. After that
what they have talked what will be placed in the testament, what
Atty. Sarmiento said was that he will go back on the 15th of June.
When we returned on June 15, Atty. Sarmiento was not there so
we were not able to sign it, the will. That is why, for the third time
we went there on August 9 and that was the time we affixed our
signature. (tsn, October 13, 1986, pp. 4-6)
Josie Collado:
QWhen you did not find Atty. Sarmiento in his house on June 15, 1983,
what transpired?

AThe wife of Atty. Sarmiento told us that we will be back on August 9,


1983.
QAnd on August 9, 1983 did you go back to the house of Atty.
Sarmiento?

AYes, Sir.
QFor what purpose?
AOur purpose is just to sign the will.

aAIcEH

QWere you able to sign the will you mentioned?


AYes sir. (tsn, October 21, 1987, pp. 4-5)" 22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the


commission of a fraud. There was no showing that the witnesses of the
proponent stood to receive any benefit from the allowance of the will. The
testimonies of the three subscribing witnesses and the notary are credible
evidence of its due execution. 23 Their testimony favoring it and the finding that it
was executed in accordance with the formalities required by law should be
affirmed, absent any showing of ill motives. 24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives the
following guidelines:
"Article 798. In order to make a will it is essential that the testator be of
sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will
to know the nature of the estate to be disposed of, the proper objects of
his bounty, and the character of the testamentary act.
"Article 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time
of making his dispositions is on the person who opposes the probate of
the will; but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the validity of the
will must prove that the testator made it during a lucid interval."

According to Article 799, the three things that the testator must have the ability to
know to be considered of sound mind are as follows: (1) the nature of the estate
to be disposed of, (2) the proper objects of the 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

WHEREFORE, the Petition is DENIED, and the assailed Decision and


Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio Morales and Garcia, JJ., concur.

Footnotes

1.Rollo, pp. 9-25.


2.Annex "A" of Petition; id., pp. 26-43. Penned by Justice Roberto A. Barrios
(Fourteenth Division chair) and concurred in by Justices Perlita J. Tria-Tirona
and Edgardo F. Sundiam (members).
3.Annex "C" of Petition; id., pp. 54-56.
4.CA Decision, p. 18; rollo, p. 43.
5.Id., pp. 3-8 & 28-33.
6.Id., pp. 15 & 40.
7.The case was deemed submitted for decision on July 14, 2004, upon this Court's
receipt of petitioner's Memorandum, signed by Atty. Manuel T. de Guia.
Respondent's Memorandum, filed on April 19, 2004, was signed by Atty.
Benigno P. Pulmano.
8.Petitioner's Memorandum, p. 6; rollo, p. 331. Original in uppercase.
9.Heirs of Saludares v. CA, 420 SCRA 51, January 16, 2004; Heirs of Celestial v.
Celestial, 408 SCRA 291, August 5, 2003; Garrido v. CA, 421 Phil. 872,
November 22, 2001; Meralco v. CA, 413 Phil. 338, July 11, 2001.
10.Leviste v. CA, 169 SCRA 580, January 30, 1989.
11.Petitioner's Memorandum, p. 19; rollo, p. 344.
12.Id., pp. 14 & 339.
13.Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines,
Vol. III (1992), p. 166.
14.Pecson v. Coronel, 45 Phil. 216, October 11, 1923.
15.Cuyugan v. Baron, 62 Phil. 859, January 16, 1936.
16.Heirs of the Late Matilde Montinola-Sanson v. CA, 158 SCRA 247, February 26,
1988; Pascual v. dela Cruz, 138 Phil. 446, May 30, 196; Rodriguez v. CA, 137
Phil. 371, March 28, 1969; In the Matter of the Testate Estate of the Juana
Juan Vda. De Molo, 100 Phil. 344, November 26, 1956; Barrera v. Tampoco,
94 Phil. 346, February 17, 1954; Pecson v. Coronel, 45 Phil. 216, October 11,
1923.

17.Petitioner's Memorandum, p. 18; rollo, p. 343.


18.CA Decision, p. 11; rollo, p. 36.
19.Article 805, Civil Code.
20.Article 806, id.
21.CA Decision, p. 9; rollo, p. 34.
22.Id., pp. 9-11 & 34-36.
23.Gonzales v. CA, 90 SCRA 183, May 25, 1979; Vda. de Ramos v CA, 81 SCRA
393, January 31, 1978; Roxas v. Roxas, 87 Phil. 692, December 1, 1950.
24.Gonzales v. CA, supra; Galvez v. Galvez, 26 Phil. 243, December 5, 1913.
25.92 SCRA 332, July 30, 1979 (citing Bugnao v. Ubag, 14 Phil. 163, September 18,
1909).
26.Id., p. 363, per Guerrero, J.
|||

(Ortega v. Valmonte, G.R. No. 157451, December 16, 2005)

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.

On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella


A. Guerrero and respondent Resurreccion A. Bihis, died at the Metropolitan
Hospital in Tondo, Manila.
On May 24, 1994, petitioner filed a petition for the probate of the last will and
testament of the decedent in Branch 95 2 of the Regional Trial Court of Quezon
City where the case was docketed as Sp. Proc. No. Q-94-20661.
The petition alleged the following: petitioner was named as executrix in the
decedent's will and she was legally qualified to act as such; the decedent was a
citizen of the Philippines at the time of her death; at the time of the execution of
the will, the testatrix was 79 years old, of sound and disposing mind, not acting
under duress, fraud or undue influence and was capacitated to dispose of her
estate by will.
Respondent opposed her elder sister's petition on the following grounds: the will
was not executed and attested as required by law; its attestation clause and
acknowledgment did not comply with the requirements of the law; the signature
of the testatrix was procured by fraud and petitioner and her children procured
the will through undue and improper pressure and influence.
In an order dated November 9, 1994, the trial court appointed petitioner as
special administratrix of the decedent's estate. Respondent opposed petitioner's
appointment but subsequently withdrew her opposition. Petitioner took her oath
as temporary special administratrix and letters of special administration were
issued to her.
On January 17, 2000, after petitioner presented her evidence, respondent filed a
demurrer thereto alleging that petitioner's evidence failed to establish that the
decedent's will complied with Articles 804 and 805 of the Civil Code.
In a resolution dated July 6, 2001, the trial court denied the probate of the will
ruling that Article 806 of the Civil Code was not complied with because the will
was "acknowledged" by the testatrix and the witnesses at the testatrix's
residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directo
who was a commissioned notary public for and in Caloocan City. The dispositive
portion of the resolution read:
WHEREFORE, in view of the foregoing, the Court finds, and so declares
that it cannot admit the last will and testament of the late Felisa Tamio

de Buenaventura to probate for the reasons hereinabove discussed and


also in accordance with Article 839 [of the Civil Code] which provides
that if the formalities required by law have not been complied with, the
will shall be disallowed. In view thereof, the Court shall henceforth
proceed with intestate succession in regard to the estate of the
deceased Felisa Tamio de Buenaventura in accordance with Article 960
of the [Civil Code], to wit: "Art. 960. Legal or intestate succession takes
place: (1) If a person dies without a will, or with a void will, or one which
has subsequently lost its validity, . . . ."
SO ORDERED, 3

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.

One of the formalities required by law in connection with the execution of a


notarial will is that it must be acknowledged before a notary public by the testator
and the witnesses. 6 This formal requirement is one of the indispensable
requisites for the validity of a will. 7 In other words, a notarial will that is not

acknowledged before a notary public by the testator and the instrumental


witnesses is void and cannot be accepted for probate.
cDICaS

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

xxx xxx xxx


SECTION 240.Territorial jurisdiction. The jurisdiction of a notary
public in a province shall be co-extensive with the province. The
jurisdiction of a notary public in the City of Manila shall be co-extensive
with said city. No notary shall possess authority to do any notarial
act beyond the limits of his jurisdiction. (emphases supplied)

A notary public's commission is the grant of authority in his favor to perform


notarial acts. 13 It is issued "within and for" a particular territorial jurisdiction and
the notary public's authority is co-extensive with it. In other words, a notary public
is authorized to perform notarial acts, including the taking of acknowledgments,
within that territorial jurisdiction only. Outside the place of his commission, he is
bereft of power to perform any notarial act; he is not a notary public. Any notarial
act outside the limits of his jurisdiction has no force and effect. As this Court
categorically pronounced in Tecson v. Tecson: 14
An acknowledgment taken outside the territorial limits of the officer's
jurisdiction is void as if the person taking it were wholly without official
character. (emphasis supplied)

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

WHEREFORE, the petition is hereby DENIED.


Costs against petitioner.
Let a copy of this decision be furnished the Commission on Bar Discipline of the
Integrated Bar of the Philippines for investigation, report and recommendation on
the possible misconduct of Atty. Macario O. Directo.
SO ORDERED.
Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.
Puno, C.J., took no part.
Footnotes

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)

2.Presided by Judge (now Sandiganbayan Associate Justice) Diosdado M. Peralta.


3.Rollo, pp. 81-87.
4.Decision dated July 31, 2006 in CA-G.R. CV No. 76707. Penned by Associate
Justice Amelita G. Tolentino and concurred in by Associate Justices Portia
Alio-Hormachuelos and Santiago Javier Ranada (retired) of the Fourth
Division of the Court of Appeals. Id., pp. 55-64.

5.Under Rule 45 of the Rules of Court.


6.The other formalities are:
(1)the will must be in writing;
(2)it must be written in a language or dialect known to the testator;
(3)it 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;
(4)it must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another;
(5)the testator or the person requested by him to write his name and the instrumental
witnesses of the will shall also sign each and every page thereof, except the
last, on the left margin;
(6)all the pages of the will must be numbered correlatively in letters placed on the
upper part of each page and
(7)the will must contain an attestation clause.
7.In the Matter of the Testate Estate of the Deceased Vicente C. Alberto, 408 Phil.
1281 (1959).
8.Tigno v. Aquino, G.R. No. 129416, 25 November 2004, 444 SCRA 61.
9.Azuela v. Court of Appeals, G.R. No. 122880, 12 April 2006, 487 SCRA 119.
10.Id.
11Id.
12.Now, Regional Trial Court.
13.2004 Rules on Notarial Practice.
14.61 Phil. 781 (1935).
15.A will is the testator speaking after death. Its provisions have substantially the
same force and effect in the probate court as if the testator stood before the
court in full life making the declarations by word of mouth as they appear in the
will. (Dissenting opinion of J. Moreland in Santos v. Manalang, 27 Phil. 209
[1914]).

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.

|||

(Guerrero v. Bihis, G.R. No. 174144, April 17, 2007)

FIRST DIVISION
[A.C. No. 5281. February 12, 2008.]
MANUEL L. LEE, complainant, vs. ATTY. REGINO
B. TAMBAGO, respondent.

RESOLUTION

CORONA, J :
p

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged


respondent Atty. Regino B. Tambago with violation of the Notarial Law and the
ethics of the legal profession for notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee,
Sr., never executed the contested will. Furthermore, the spurious will contained
the forged signatures of Cayetano Noynay and Loreto Grajo, the purported
witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife
Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and
Elena Lee, half-siblings of complainant.
IETCAS

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

We affirm with modification.


A will is an act whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate, to take effect after
his death. 15A will may either be notarial or holographic.

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

A notarial will, as the contested will in this case, is required by law to be


subscribed at the end thereof by the testator himself. In addition, it should be
attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another. 17
The will in question was attested by only two witnesses, Noynay and Grajo. On
this circumstance alone, the will must be considered void. 18 This is in
consonance with the rule that acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the law itself authorizes their
validity.
The Civil Code likewise requires that a will must be acknowledged before a
notary public by the testator and the witnesses. 19 The importance of this
requirement is highlighted by the fact that it was segregated from the other
requirements under Article 805 and embodied in a distinct and separate
provision. 20
An acknowledgment is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. It involves
an extra step undertaken whereby the signatory actually declares to the notary
public that the same is his or her own free act and deed. 21 The acknowledgment
in a notarial will has a two-fold purpose: (1) to safeguard the testator's wishes
long after his demise and (2) to assure that his estate is administered in the
manner that he intends it to be done.
STIcaE

A cursory examination of the acknowledgment of the will in question shows that


this particular requirement was neither strictly nor substantially complied with. For
one, there was the conspicuous absence of a notation of the residence
certificates of the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notation of the testator's old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by respondent
invalidated the will.

As the acknowledging officer of the contested will, respondent was required to


faithfully observe the formalities of a will and those of notarization. As we held
in Santiago v. Rafanan: 22
The Notarial Law is explicit on the obligations and duties of notaries
public. They are required to certify that the party to every document
acknowledged before him had presented the proper residence certificate
(or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification.

HDTISa

These formalities are mandatory and cannot be disregarded, considering the


degree of importance and evidentiary weight attached to notarized
documents. 23 A notary public, especially a lawyer, 24 is bound to strictly observe
these elementary requirements.
The Notarial Law then in force required the exhibition of the residence certificate
upon notarization of a document or instrument:
Section 251.Requirement as to notation of payment
of [cedula] residence tax. Every contract, deed, or other document
acknowledged before a notary public shall have certified thereon that the
parties thereto have presented their proper [cedula] residence certificate
or are exempt from the [cedula] residence tax, and there shall be
entered by the notary public as a part of such certificate the number,
place of issue, and date of each [cedula] residence certificate as
aforesaid. 25

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:

Art. 806.Every will must be acknowledged before a notary public by the


testator and the witness. 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)

IDcTEA

Respondent's failure, inadvertent or not, to file in the archives division a copy


of the notarized will was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the
necessary entries pertaining to the will in his notarial register. The old Notarial
Law required the entry of the following matters in the notarial register, in
chronological order:
ACETID

1.nature of each instrument executed, sworn to, or acknowledged before


him;
2.person executing, swearing to, or acknowledging the instrument;
3.witnesses, if any, to the signature;
4.date of execution, oath, or acknowledgment of the instrument;
5.fees collected by him for his services as notary;
6.give each entry a consecutive number; and
7.if the instrument is a contract, a brief description of the substance of
the instrument. 27

In an effort to prove that he had complied with the abovementioned rule,


respondent contended that he had crossed out a prior entry and entered instead
the will of the decedent. As proof, he presented a photocopy of his notarial
register. To reinforce his claim, he presented a photocopy of a
certification 28 stating that the archives division had no copy of the affidavit of
Bartolome Ramirez.
AHcaDC

A photocopy is a mere secondary evidence. It is not admissible unless it is


shown that the original is unavailable. The proponent must first prove the
existence and cause of the unavailability of the original, 29 otherwise, the
evidence presented will not be admitted. Thus, the photocopy of respondent's
notarial register was not admissible as evidence of the entry of the execution of
the will because it failed to comply with the requirements for the admissibility of
secondary evidence.
In the same vein, respondent's attempt to controvert the certification dated
September 21, 1999 30 must fail. Not only did he present a mere photocopy of the
certification dated March 15, 2000; 31 its contents did not squarely prove the fact
of entry of the contested will in his notarial register.
Notaries public must observe with utmost care 32 and utmost fidelity the basic
requirements in the performance of their duties, otherwise, the confidence of the
public in the integrity of notarized deeds will be undermined. 33
Defects in the observance of the solemnities prescribed by law render the entire
will invalid. This carelessness cannot be taken lightly in view of the importance
and delicate nature of a will, considering that the testator and the witnesses, as in
this case, are no longer alive to identify the instrument and to confirm its
contents. 34 Accordingly, respondent must be held accountable for his acts. The
validity of the will was seriously compromised as a consequence of his breach of
duty. 35
IEAacT

In this connection, Section 249 of the old Notarial Law provided:


Grounds for revocation of commission. The following derelictions of
duty on the part of a notary public shall, in the discretion of the proper
judge of first instance, be sufficient ground for the revocation of his
commission:
xxx xxx xxx
(b)The failure of the notary to make the proper entry or entries in
his notarial register touching his notarial acts in the manner
required by law.
xxx xxx xxx

(f)The failure of the notary to make the proper notation regarding


cedula certificates. 36

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

Disbarment is the most severe form of disciplinary sanction. 46 We have held in a


number of cases that the power to disbar must be exercised with great
caution 47 and should not be decreed if any punishment less severe such as
reprimand, suspension, or fine will accomplish the end desired. 48 The rule
then is that disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an officer of the
court. 49
Respondent, as notary public, evidently failed in the performance of the
elementary duties of his office. Contrary to his claims that he "exercised his
duties as Notary Public with due care and with due regard to the provision of
existing law and had complied with the elementary formalities in the performance
of his duties . . .," we find that he acted very irresponsibly in notarizing the will in
question. Such recklessness warrants the less severe punishment of suspension

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.

11.CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE


LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR
LEGAL PROCESSES.
12.Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
13.Annex "A", Report and Recommendation by Commissioner Elpidio G. Soriano III,
dated February 27, 2006. Rollo, p. 13.
14.Notice of Resolution, IBP Board of Governors. (Emphasis in the original)
15.CIVIL CODE, Art. 783.

EATCcI

16.Jurado, Desiderio P., COMMENTS AND JURISPRUDENCE ON SUCCESSION,


8th ed. (1991), Rex Bookstore, Inc., p. 52. In re: Will of Tan Diuco, 45 Phil. 807
(1924); Unson v. Abella,43 Phil. 494 (1922); Aldaba v. Roque, 43 Phil. 379
(1922); Avera v. Garcia, 42 Phil. 145 (1921); Abangan v. Abangan, 40 Phil. 476
(1919).
17.CIVIL CODE, Art. 804.
18.CIVIL CODE, Art. 5.
19.CIVIL CODE, Art. 806.
20.Azuela v. Court of Appeals, G.R. No. 122880, 12 April 2006, 487 SCRA 142.
21.Id.
22.A.C. No. 6252, 5 October 2004, 440 SCRA 98.
23.Santiago v. Rafanan, id., at 99.
24.Under the old Notarial Law, non-lawyers may be commissioned as notaries public
subject to certain conditions. Under the 2004 Rules on Notarial Practice (A.M.
No. 02-8-13-SC, effective August 1, 2004), however, only lawyers may be
granted a notarial commission.
25.REVISED ADMINISTRATIVE CODE, Book I, Title IV, Chapter 11, Sec. 251.
26.Commonwealth Act No. 465.
27.REVISED ADMINISTRATIVE CODE, Book I, Title IV, Chapter 11, Sec. 246.
28.Dated March 15, 2000. Rollo, p. 105.

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.

|||

(Lee v. Tambago, A.C. No. 5281, February 12, 2008)