You are on page 1of 69

EN BANC

[G.R. No. L-26615. April 30, 1970.]


REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, petitioners, vs. HON. CONRADO M.VASQUEZ, as
Judge of the Court of First Instance of Manila, Branch and
CONSUELO GONZALES VDA. DE PRECILLA, respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA,
MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, petitioners, vs. HON. CONRADO M.VASQUEZ, as Judge
of the Court of First Instance of Manila, Branch V, REGISTER OF
DEEDS OF MANILA, and CONSUELO GONZALES VDA. DE
PRECILLA,respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased
CONSUELO S. GONZALES VDA. DE PRECILLA, petitioner
administratrix, vs. SEVERINA NARCISO, ROSA NARCISO,
JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN MAURICIO,
REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA
NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO
JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL
ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and
PASCUALA NARCISO-MANAHAN, oppositors-appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for
respondent Consuelo S. Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla &
Ramon C. Aquino for petitioner administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso,
et al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, et al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio
Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina
Narciso, et al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositorsappellants Natividad del Rosario Sarmiento, et al.
SYLLABUS
1.CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR
DISALLOWANCE; TESTATRIX'S DEFECTIVE EYESIGHT AS UNABLING HER
TO READ THE PROVISIONS OF LATER WILL. The declarations in court of the
opthalmologist as to the condition of the testatrix's eyesight fully establish the fact
that her vision remained mainly for viewing distant objects and not for reading
print; that she was, at the time of the execution of the second will on December
29, 1960, incapable of reading and could not have read the provisions of the will
supposedly signed by her.
2.ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL;
CASE AT BAR. Upon its face, the testamentary provisions, the attestation
clause and acknowledgment were crammed together into a single sheet of
paper, apparently to save on space. Plainly, the testament was not prepared with
any regard for the defective vision of Da. Gliceria, the typographical errors
remained uncorrected thereby indicating that the execution thereof must have
been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of one's worldly possessions should be
embodied in an informal and untidy written instrument; or that the glaring spelling
errors should have escaped her notice if she had actually retained the ability to
read the purported will and had done so.

3.ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808,
NEW CIVIL CODE READING OF THE WILL TWICE TO A BLIND TESTATOR;
PURPOSE. The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself is to make the
provisions thereof known to him, so that he may be able to object if they are not
in accordance with his wishes.
4.ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE. Where
as in the 1960 will there is nothing in the record to show that the requisites of Art.
808 of the Civil Code of the Philippines that "if the testator is blind, the will shall
be read to him twice," have not been complied with, the said 1960 will suffer from
infirmity that affects its due execution.
5.REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS;
ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF
INTEREST ADVERSE TO THAT OF THE ESTATE MAKES THE
ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT
BAR. Considering that the alleged deed of sale was executed when Gliceria del
Rosario was already practically blind and that the consideration given seems
unconscionably small for the properties, there was likelihood that a case for
annulment might be filed against the estate or heirs of Alfonso Precilla. And the
administratrix being the widow and heir of the alleged transferee, cannot be
expected to sue herself in an action to recover property that may turn out to
belong to the estate. This, plus her conduct in securing new copies of the owner's
duplicate of titles without the court's knowledge and authority and having the
contract bind the land through issuance of new titles in her husband's name,
cannot but expose her to the charge of unfitness or unsuitability to discharge the
trust, justifying her removal from the administration of the estate.
6.REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE
TITLE OR THE RIGHT OF POSSESSION OF REAL PROPERTY." On the
matter of lis pendens, the provisions of the Rules of Court are clear: notice of the
pendency of an action may be recorded in the office of the register of deeds of
the province in which the property is situated, if the action affects "the title or the
right of possession of (such) real property."
7.ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in
controversy here is simply the fitness or unfitness of said special administratrix to

continue holding the trust, it does not involve or affect at all the title to, or
possession of, the properties covered by TCT Nos. 81735, 81736 and 81737.
Clearly, the pendency of such case (L-26615) is not an action that can properly
be annotated in the record of the titles to the properties.

DECISION

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of
Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will an,
testament of the late Gliceria Avelino del Rosario dated 29 December 1960. G.R.
Nos. L-26615 and L-2684 are separate petitions for mandamus filed by certain
alleged heirs of said decedent seeking (1) to compel the probate court to remove
Consuelo S. Gonzales-Precilla as special administratrix of the estate, for conflict
of interest, to appoint a new one in her stead; and (2) to order the Register of
Deeds of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736
,and 81737, registered in the name of Alfonso Precilla, married to Consuelo
Gonzales y Narciso, and said to be properly belonging to the estate of the
deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may
be stated as follows:
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September
1965, leaving no descendents, ascendants, brother or sister. At the time of her
death, she was said to be 90 years old more or less, and possessed of an estate
consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the
deceased, petitioned the Court of First Instance of Manila for probate of the
alleged last will and testament of Gliceria A. del Rosario, executed on 29
December 1960, and for her appointment as special administratrix of the latter's
estate, said to be valued at about P100,000.00, pending the appointment of a
regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev.
Fr. Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del
Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees
in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de
Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3)
Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del
Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7)
Severina, Rosa and Josefa, surnamed Narciso, and Vicente and Delfin,
surnamed Mauricio, the latter five groups of persons all claiming to be relatives
of Doa Gliceria within the fifth civil degree. The oppositions invariably charged
that the instrument executed in 1960 was not intended by the deceased to be her
true will; that the signatures of the deceased appearing in the will was procured
through undue and improper pressure and influence the part of the beneficiaries
and/or other persons; that the testatrix did not know the object of her bounty; that
the instrument itself reveals irregularities in its execution, and that the formalities
required by law for such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the
deceased, joined the group of Dr. Jaime Rosario in registering opposition to the
appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses interest adverse to the
estate. After the parties were duly heard, the probate court, in its order of 2
October 1965, granted petitioner's prayer and appointed her special
administratrix of the estate upon a bond for P30,000.00. The order was premised
on the fact the petitioner was managing the properties belonging to the estate
even during the lifetime of the deceased, and to appoint another person as
administrator or co administrator at that stage of the proceeding would only result
in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, et al. filed with the probate
court an urgent motion to require the Hongkong & Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September 1965.
The court denied this motion on 22 October 1965 for being premature, it being
unaware that such deposit in the name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and
children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia,
petitioned the court for the immediate removal of the special administratrix. It was
their claim that the special administratrix and her deceased husband, Alfonso
Precilla, 2 had caused Gliceria A. del Rosario to execute a simulated and
fraudulent deed of absolute sale dated 10 January 1961 allegedly conveying unto
said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land and
the improvements thereon located on Quiapo and San Nicolas, Manila, with a
total assessed value of P334,050.00. Oppositors contended that since it is the
duty of the administrator to protect and conserve the properties of the estate, and
it may become necessary that, an action for the annulment of the deed of sale
land for recovery of the aforementioned parcels of land be filed against the
special administratrix, as wife and heir of Alfonso Precilla, the removal of the said
administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order
directing the Special Administratrix to deposit with the Clerk of Court all
certificates of title belonging to the estate. It was alleged that on 22 October
1965, or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla, in
her capacity as special administratrix of the estate of the deceased Gliceria A.
del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion
for the issuance of new copies of the owner's duplicates of certain certificates of
title in the name of Gliceria del Rosario, supposedly needed by her "in the
preparation of the inventory" of the properties constituting the estate. The motion
having been granted, new copies of the owner's duplicates of certificates
appearing the name of Gliceria del Rosario (among which were TCT Nos. 66201,
66202 and 66204) were issued on 15 November 1965. On 8 December 1965,
according to the oppositors, the same special administratrix presented to the
Register of Deeds the deed of sale involving properties covered by TCT Nos.
66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on 10
January 1961 in favor of Alfonso Precilla, and, in consequence, said certificates
of title were cancelled and new certificates (Nos. 81735, 81736 and 81737) were
issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y
Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will
of Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will,

the probate court took note that no evidence had been presented to establish
that the testatrix was not of sound mind when the will was executed; that the fact
that she had prepared an earlier will did not, prevent her from executing another
one thereafter; that the fact that the 1956 will consisted of 12 pages whereas the
1960 testament was contained in one page does not render the latter invalid;
that, the erasures and alterations in the instrument were insignificant to warrant
rejection; that the inconsistencies in the testimonies of the instrumental witnesses
which were noted by the oppositors are even indicative of their truthfulness. The
probate court, also considering that petitioner had already shown capacity to
administer the properties of the estate and that from the provisions of the will she
stands as the person most concerned and interested therein, appointed said
petitioner regular administratrix with a bond for P50,000.00. From this order all
the oppositors appealed, the case being docketed in this Court as G.R. No. L27200.
Then, on 13 September 1966, the probate court resolved the oppositors' motion
of 14 December 1965 for the removal of the then special administratrix, as
follows:
"It would seem that the main purpose of the motion to remove the
special administratrix and to appoint another one in her stead, is in order
that an action may be filed against the special administratrix for the
annulment of the deed of sale executed by the decedent on January 10,
1961. Under existing documents, the properties sold pursuant to the said
deed of absolute sale no longer forms part of the estate. The alleged
conflict of interest is accordingly not between different claimants of the
same estate. If it is desired by the movants that an action be filed by
them to annul the aforesaid deed absolute sale, it is not necessary that
the special administratrix be removed and that another one be appointed
to file such action. Such a course of action would only produce confusion
and difficulties in the settlement of the estate. The movants may file the
aforesaid proceedings, preferably in an independent action, to secure
the nullity of the deed of absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the
titles in the name of the decedent, the same was also denied, for the reason that
if the movants were referring to the old titles, they could no longer be produced,

and if they meant the new duplicate copies thereof that were issued at the
instance of the special administratrix, there would be no necessity therefor,
because they were already cancelled and other certificates were issued in the
name of Alfonso Precilla. This order precipitated the oppositors' filing in this Court
of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, et al. vs.
Hon. Judge Conrado M. Vasquez, et al.), which was given due course on 6
October 1966.
On 15 December 1965, with that motion for removal pending in the court, the
oppositors requested the Register of Deeds of Manila to annotate a notice of lis
pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name of
Alfonso Precilla. And when said official refused to do so, they applied to the
probate court (in Sp. Proc. No. 62618) for an order to compel the Register of
Deeds to annotate a lis pendens notice in the aforementioned titles contending
that the matter of removal and appointment of the administratrix, involving TCT
Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon
denial of this motion on 12 November 1966, oppositors filed another mandamus
action, this time against the probate court and the Register of Deeds. The case
was docketed and given due course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the
order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix,
Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June
1956 consisting of 12 pages and written in Spanish, a language that she knew
and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin
Marquez, and acknowledged before notary public Jose Ayala; and another dated
29 December 1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and
acknowledged before notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses
Decena, Lopez and Rosales uniformly declared that they were individually
requested by Alfonso Precilla (the late husband of petitioner special
administratrix) to witness the execution of the last will of Doa Gliceria A. del
Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga,
Manila, one after the other, in the afternoon of 29 December 1960; that the

testatrix at the time was apparently of clear and sound mind, although she was
being aided by Precilla when she walked; 3 that the will, which was already
prepared, was first read "silently" by the testatrix herself before she signed
it; 4 that he three witnesses thereafter signed the will in the presence of the
testatrix and the notary public and of one another. There is also testimony that
after the testatrix and the witnesses to the will acknowledged the instrument to be
their voluntary act and deed, the notary public asked for their respective
residence certificates which were handed to him by Alfonso Precilla, clipped
together; 5 that after comparing them with the numbers already written on the will,
the notary public filled in the blanks in the instrument with the date, 29 January
1960, before he affixed his signature and seal thereto. 6 They also testified that
on that occasion no pressure or influence has been exerted by any person upon
the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the signing of
this 1960 will are evident from the records. The will appeared to have been
prepared by one who is not conversant with the spelling of Tagalog words, and it
has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a
Visayan accent. 7 The witnesses to the will, two of whom are fellow
Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla
who instructed them to go to the house of Gliceria del Rosario on 29 December
1960 to witness an important document, 10 and who took their residence
certificates from them a few days before the will was signed. 11 Precilla had met
the notary public and witnesses Rosales and Lopez at the door of the residence
of the old woman; he ushered them to the room at the second floor where the
signing of the document took place; 12 then he fetched witness Decena from the
latter's haberdashery shop a few doors away and brought him to, the house the
testatrix. 13 And when the will was actually executed Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the
correctness of the probate court's ruling, maintain that on 29 December 1960 the
eyesight of Gliceria del Rosario was so poor and defective that she could not
have read the provisions of the will, contrary to the testimonies of witnesses
Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise was admitted by
both parties, testified, among other things, that when Doa Gliceria del Rosario
saw him for consultation on 11 March 1960 he found her left eye to have cataract
(opaque lens), 15 and that it was "above normal in pressure", denoting a possible
glaucoma, a disease that leads to blindness 16 As to the conditions of her right
eye, Dr. Tamesis declared:
"QBut is there anything here in the entry appearing in the other
documents Exhibits 3-B, 3-C and 3-D from which you could inform
the court as to the condition of the vision of the patient as to the
right eve ?
"AUnder date of August 30, 1960, is the record of refraction. that is
setting of glass by myself which showed that the right eye with my
prescription of glasses had a vision of 2 over 60 (20/60) and for
the left eye with her correction 20 over 300 (20/300).
"QIn layman's language, Doctor, what is the significance of that notation
that the right had a degree of 20 over 60 (20/60)?
"AIt meant that eye at least would be able to recognize objects or
persons at a minimum distance of twenty feet.
"QBut would that grade enable the patient to read print?
"AApparently that is only a record for distance vision, for distance sight,
not for near."
(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of
the decedent at the Lourdes Hospital on 8 August 1960; as of 23 August
1960, inspite of the glasses her vision was only "counting fingers," 17 at five
feet. The cross-examination of the doctor further elicited the following
responses:
"QAfter she was discharged from the hospital you prescribed lenses for
her, or glasses?

"AAfter her discharge from the hospital, she was coming to my clinic for
further examination and then sometime later glasses were
prescribed.
xxx xxx xxx
"QAnd the glasses prescribed by you enabled her to read, Doctor?
"AAs far as my record is concerned, with the glasses for the left eye
which I prescribed the eye which I operated she could see
only forms but not read. That is on the left eye.
"QHow about the right eye?
"AThe same, although the vision on the right eye is even better than the
left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29


November 1965 certifying that Gliceria del Rosario was provided with aphakic
lenses and "had been under medical supervision up to 1963 with apparently
good vision", the doctor had this to say:
"QWhen yon said that she had apparently good vision you mean that
she was able to read?
"ANo, not necessarily, only able to go around, take care of herself and
see. This I can tell you, this report was made on pure
recollections and I recall she was using her glasses although I
recall also that we have to give her medicines to improve her
vision, some medicines to improve her identification some more.
xxx xxx xxx
"QWhat about the vision in the right eve, was that corrected by the
glasses?
"AYes, with the new prescription which I issued on 80 August 1960. It is
in the clinical record.
"QThe vision in the right eye was corrected?
"AYes That is the vision for distant objects."
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and,
therefore, has first hand knowledge of the actual condition of her eyesight from
August, 1960 up to 1963, fully establish the fact that notwithstanding the
operation and removal of the cataract in her left eye and her being fitted with
aphakic lens (used by cataract patients), her vision remained mainly for viewing
distant objects and not for reading print. Thus, the conclusion is inescapable that
with the condition of her eyesight in August, 1960, and there is no evidence that it
had improved by 29 December 1960, Gliceria del Rosario was incapable f
reading, and could not have read the provisions of the will supposedly signed by
her on 29 December 1960. It is worth noting that the instrumental witnesses
stated that she read the instrument "silently" (t.s.n., pages 164-165). which is a
conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the
appearance of the will, Exhibit "D", acquires striking significance. Upon its face,
the testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, to much so that the words had to
be written very close on the top, bottom and two sides of the paper, leaving no
margin whatsoever; the word "and" had to be written by the symbol "&",
apparently to save on space. Plainly, the testament was not prepared with any
regard for the defective vision of Doa Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for
"acknowledge'', remained uncorrected, thereby indicating that execution thereof
must have been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of one's worldly
possessions should be embodied in an informal and untidily written instrument;
or that the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so. The
record is thus convincing that the supposed testatrix could not have physically
read or understood the alleged testament, Exhibit "D", and that its admission to
probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday, arrange
flowers and attend to kitchen tasks shortly prior to the alleged execution of the
testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in
no way proves; that she was able to read a closely typed page, since the acts

shown do not require vision at close range. It must be remembered that with the
natural lenses removed, her eyes had lost the power of adjustment to near
vision, the substituted glass lenses being rigid and uncontrollable by her. Neither
is the signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at
normal reading distances. Writing or signing of one's name, when sufficiently
practiced, becomes automatic, so that one need only to have a rough indication
of the place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph, Exhibit
"O", et seq., reinforces the contention of oppositors that the alleged testatrix
could not see at normal reading distance: the signatures in the checks are written
far above the printed base, lines, and the names of the payees as well as the
amounts written do not appear to be in the handwriting of the alleged testatrix,
being in a much firmer and more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria
del Rosario was, as appellant oppositors contend, not unlike a blind testator, and
the due execution of her will would have required observance of the provisions of
Article 808 of the Civil Code.
"ART. 808.If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged."

The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will himself (as when he is illiterate), 18 is to
make the provisions thereof known to him, so that he may be able to object if
they are not in accordance with his wishes. That the aim of the law is to insure
that the dispositions of the will are properly communicated to and understood
by the handicapped testator, thus making them truly reflective of his desire, is
evidenced by the requirement that the will should be read to the latter, not
only once but twice, by two different persons, and that the witnesses have to
act within the range of his (the testator's) other senses. 19
In connection with the will here in question, there is nothing in the records to
show that the above requisites have been complied with. Clearly, as already
stated, the 1960 will sought to be probated suffers from infirmity that affects its
due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, et al., against
the denial by the probate court of their petition for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the estate of the deceased
Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").
The oppositors' petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their contention
that through fraud her husband had caused the deceased Gliceria del Rosario to
execute a deed of sale, dated 10 January 1961, by virtue of which the latter
purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo
Gonzales y Narciso, the ownership of 3 parcels of land and the improvements
thereon, assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966
(Annex "P", Petition) reasoned out that since the properties were already sold no
longer form part of the estate. The conflict of interest would not be between the
estate and third parties, but among the different claimants of said properties, in
which case, according to the court, the participation of the special administratrix
in the action for annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned
was precisely the validity of the conveyance or sale of the properties. In short, if
proper, the action for annulment would have to be undertaken on behalf of the
estate by the special administratrix, affecting as it does the property or rights of
the deceased. 20 For the rule is that only where there is no special proceeding for
the settlement of the estate of the deceased may the legal heirs commence an
action arising out of a right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of
the deed of sale, an ordinary and separate action would have to be instituted, the
matter not falling within the competence of the probate court. 22 Considering the
facts then before it, i.e., the alleged deed of sale having been executed by
Gliceria del Rosario on 10 January 1961, when she was already practically blind;
and that the consideration of P30,000.00 seems to be unconscionably small for
properties with a total assessed value of P334,050.00, there was likelihood that a
case for annulment might indeed be filed against the estate or heirs of Alfonso

Precilla. And the administratrix, being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover property
that may turn out to belong to the estate. 22 Not only this, but the conduct of the
special administratrix in securing new copies of the owner's duplicates of TCT
Nos. 66201, 66202, and 66204, without the court's knowledge or authority, and
on the pretext that she needed them in the preparation of the inventory of the
estate, when she must have already known by then that the properties covered
therein were already "conveyed" to her husband by the deceased, being the
latter's successor, and having the contract bind the land through issuance of new
titles in her husband's name cannot but expose her to the charge of unfitness or
unsuitableness to discharge the trust, justifying her removal from the
administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors' motion to
require the Hongkong and Shanghai Bank to report all withdrawals made against
the funds of the deceased after 2 September 1965 and (2) the motion for
annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the
same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H") that it
could not have taken action on the complaint against the alleged withdrawals
from the bank deposits of the deceased, because as of that time the court had
not yet been apprised that such deposits exist. Furthermore, as explained by the
special administratrix in her pleading of 30 October 1965, the withdrawals
referred to by the oppositors could be those covered by checks issued in the
name of Gliceria del Rosario during her lifetime butcleared only after her death.
That explanation, which not only appears plausible but has not been rebutted by
the petitioners-oppositors, negates any charge of grave abuse in connection with
the issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of
Court are clear: notice of the pendency of an action may be recorded in the office
of the register of deeds of the province in which the property is situated, if the
action affects "the title or the right of possession of (such) real property." 23 In the
case at bar, the pending action which oppositors seek to annotate in the records
of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in this
Court (G.R. No. L-26615). As previously discussed in this opinion, however, that

case is concerned merely with the correctness of the denial by the probate court
of the motion for the removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the late Gliceria del Rosario. In short, the issue in
controversy there is simply the fitness or unfitness of said special administratrix
to continue holding the trust; it does not involve or affect at all the title to, or
possession of, the properties covered by said TCT Nos. 81735, 81736 and
81737. Clearly, the pendency of such case (L-26615) is not an action that can
properly be annotated in the record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to
probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and
set aside. The petition in G.R. No. L-26615 being meritorious, the appealed order
is set aside and the court below is ordered to remove the administratrix,
Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the
deceased Doa Gliceria Avelino del Rosario as special administrator for the
purpose of instituting action on behalf of her estate to recover the properties
allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L26864, petition is dismissed. No costs.
Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor,
JJ., concur.
Zaldivar and Castro, JJ., took no part.
Barredo, J., is on leave.
Footnotes

1.At that time, no inventory of the properties belonging to the estate has yet
been submitted by the special administratrix.
2.Precilla died on 17 July 1965 or before the death of Gliceria Rosario.
3.Page 24, hearing of 2 Dec. 1965; page 75, hearing of 3 Dec. 1965; page 61,
hearing of 22 Dec. 1965.
4.Pages 17, 31, hearing of 2 Dec. 1965; page 110, 3 Dec. 1965; page 61,
hearing of 22 Dec. 1965.
5.Page 15, hearing of 22 Dec. 1965.
6.Page 16, idem.

7.Page 58, t.s.n., hearing of 2 December 1965.


8.Pages 85, 86, t.s.n, hearing of 3 December 1965; pages 47, 48, t.s.n.,
hearing of 22 December 1965.
9.Pages 10, 37, t.s.n., hearing of 2 December 1965; page 83; t.s.n., hearing of
3 December 1965; pages 37, 38, t.s.n., hearing of 22 December 1965.
10.Page 44, t.s.n., healing of 3 December 1965; pages 45-46, t.s.n., 22
December 1965.
11.Pages 69-70, t.s.n., hearing of 3 December 1965; page 47, t.s.n., hearing of
22 December 1965; page 30, t.s.n., 2 December, 1965.
12.Page 47, t.s.n., 3 December 1965; pages 54, 55, t.s.n. hearing of 22
December 1965; pages 35, 36, t.s.n., 21 January 1966.
13.Pages 14, 15, 2 December 1965.
14.Page 14, t.s.n., 1 December 1965; page 13, t.s.n., 3 December 1965; page
27, t.s.n., 22 December 1965; page 9, t.s.n., 21 January 1966.
15.Page 13, t.s.n., hearing of 23 March 1966.
16.Page 17, t.s.n., hearing of 23 March 1966.
17."Counting fingers" is a standard procedure adopted to determine the extent
of vision of a patient with very poor vision. (page 25, t.s.n., hearing of 23
March 1966).
18.Article 808, New Civil Code.
19.Vol. III, Reyes and Puno, An Outline of Philippine Civil Law, 1967 ed., page
21, citing Alexander or Wills.
20.Section 2, Revised Rule 87.
21.Vera vs. Galauran, 67 Phil. 213.
22.Baquial vs. Amihan, 92 Phil. 501; Mallari vs. Mallari, 92 Phil. 694;
Ongsingco vs. Tan, 97 Phil. 330.
22aCf. Jaroda vs. Cusi, L-28214, 30 July 1969, 28 SCRA 1008.
23.Section 24, Revised Rule 14.

|||

(Garcia v. Vasquez, G.R. No. L-26615, L-26884, L-27200, April 30, 1970)

FIRST DIVISION
[G.R. No. 74695. September 14, 1993.]
In the Matter of the Probate of the Last Will and Testament of
the Deceased Brigido Alvarado,
CESAR ALVARADO, petitioner, vs. HON. RAMON G.GAVIOLA,
JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA
and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and
BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
SYLLABUS
1.CIVIL LAW; PROBATE OF WILL; ART. 808, NEW CIVIL CODE; SCOPE OF
THE TERM "BLINDNESS". The following pronouncement in Garcia vs.
Vasquez provides an insight into the scope of the term "blindness" as used in Art.
808, to wit: "The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as when he is
illiterate), is to make the provisions thereof known to him, so that he may be able
to object if they are not in accordance with his wishes . . ." Clear from the
foregoing is that Art. 808 applies not only to blind testators but also to those who,
for one reason or another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of his will and codicil on
the separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude that
Brigido Alvarado comes within the scope of the term "blind" as it is used in Art.
808. Unless the contents were read to him, he had no way of ascertaining

whether or not the lawyer who drafted the will and codicil did so conformably with
his instructions.
2.ID.; ID.; ID.; WILL MUST BE READ TWICE; PURPOSE. Article 808 requires
that in case of testators like Brigido Alvarado, the will shall be read twice; once,
by one of the instrumental witnesses and, again, by the notary public before
whom the will was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.
3.ID.; ID.; ID.; SUBSTANTIAL COMPLIANCE THEREWITH, ACCEPTABLE;
REASON. This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been satisfied, the
reason being that the solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery but are never intended
to be so rigid and inflexible as to destroy the testamentary privilege. The spirit
behind the law was served though the letter was not. Although there should be
strict compliance with the substantial requirements of the law in order to insure
the authenticity of the will, the formal imperfections should be brushed aside
when they do not affect its purpose and which, when taken into account, may
only defeat the testator's will.
4.ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, private respondent read
the testator's will and codicil aloud in the presence of the testator, his three
instrumental witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read corresponded with his
instructions. Only then did the signing and acknowledgement take place. There is
no evidence, and petitioner does not so allege, that the contents of the will and
codicil were not sufficiently made known and communicated to the testator. On
the contrary, with respect to the "Huling Habilin," the day of the execution was
not the first time that Brigido had affirmed the truth and authenticity of the
contents of the draft. The uncontradicted testimony of Atty. Rino is that
Brigido Alvarado already acknowledged that the will was drafted in accordance
with his expressed wishes even prior to 5 November 1977 when Atty. Rino went
to the testator's residence precisely for the purpose of securing his conformity to
the draft.

DECISION

BELLOSILLO, J :
p

Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of
the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner)
and expressly revoked a previously executed holographic will at the time awaiting
probate before Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by
private respondent who were present at the execution, the testator did not read
the final draft of the will himself. Instead, private respondent, as the lawyer who
drafted the eight-paged document, read the same aloud in the presence of the
testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9
December 1977. On the 29th day of the same month, a codicil entitled
"Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin
na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing
some dispositions in the notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will, the
testator did not personally read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the presence of the three
instrumental witnesses (same as those of the notarial will) and the notary public
who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with the
Court of First Instance, now Regional Trial Court, of Siniloan,

Laguna. 5 Petitioner, in turn, filed an Opposition on the following grounds: that the
will sought to be probated was not executed and attested as required by law; that
the testator was insane or otherwise mentally incapacitated to make a will at the
time of its execution due to senility and old age; that the will was executed under
duress, or influence of fear or threats; that it was procured by undue and
improper pressure and influence on the part of the beneficiary who stands to get
the lion's share of the testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in
the Opposition, a Probate Order was issued on 27 June 1983 from which an
appeal was made to respondent court. The main thrust of the appeal was that the
deceased was blind within the meaning of the law at the time his "Huling Habilin"
and the codicil attached thereto were executed; that since the reading required
by Art. 808 of the Civil Code was admittedly not complied with, probate of the
deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with
the following findings: that Brigido Alvarado was not blind at the time his last will
and codicil were executed; that assuming his blindness, the reading requirement
of Art. 808 was substantially complied with when both documents were read
aloud to the testator with each of the three instrumental witnesses and the notary
public following the reading with their respective copies of the instruments. The
appellate court then concluded that although Art. 808 was not followed to the
letter, there was substantial compliance since its purpose of making known to the
testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for
purposes of Art. 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article complied
with?
Regarding the first issue, there is no dispute on the following facts:
Brigido Alvarado was not totally blind at the time the will and codicil were
executed. However, his vision on both eyes was only of "counting fingers at three
(3) feet" by reason of the glaucoma which he had been suffering from for several
years and even prior to his first consultation with an eye specialist on 14
December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido
as a "blind" testator under Art. 808 which reads:
"Art. 808.If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing, witnesses, and again, by the notary public
before whom the will is acknowledged."

Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it
is used in Art. 808. To support his stand, petitioner presented before the trial
court a medical certificate issued by Dr. Salvador R. Salceda, Director of the
Institute of Ophthalmology (Philippine Eye Research Institute), 6 the contents of
which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise
was admitted by private respondent. 7Dr. Roasa explained that although the
testator could visualize fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977, the day of his first
consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony, held
that the testator could still read on the day the will and the codicil were executed
but chose not to do so because of "poor eyesight." 9 Since the testator was still
capable of reading at that time, the court a quo concluded that Art. 808 need not
be complied with.

We agree with petitioner in this respect.


Regardless of respondent's staunch contention that the testator was still capable
of reading at the time his will and codicil were prepared, the fact remains and this
was testified to by his witnesses, that Brigido did not do so because of his
"poor," 10 "defective, " 11 or "blurred" 12 vision making it necessary for private
respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into
the scope of the term "blindness" as used in Art. 808, to wit:
"The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as when he

is illiterate), is to make the provisions thereof known to him, so that he


may be able to object if they are not in accordance with his wishes . . ."

Clear from the foregoing is that Art. 808 applies not only to blind testators but
also to those who, for one reason or another, are "incapable of reading the(ir)
will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will
and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it is
used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so
conformably with his instructions. Hence, to consider his will as validly executed
and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be
read twice; once, by one of the instrumental witnesses and, again, by the notary
public before whom the will was acknowledged. The purpose is to make known
to the incapacitated testator the contents of the document before signing and to
give him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public
and an instrumental witness, it was the lawyer (private respondent) who drafted
the eight-paged will and the five-paged codicil who read the same aloud to the
testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and
that the single reading suffices for purposes of the law. On the other hand,
petitioner maintains that the only valid compliance is a strict compliance or
compliance to the letter and since it is admitted that neither the notary public nor
an instrumental witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being
that the solemnities surrounding the execution of wills are intended to protect the

testator from all kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in
the presence of the testator, his three instrumental witnesses, and the notary
public. Prior and subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions. Only then did the
signing and acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to
the "Huling Habilin," the day of the execution was not the first time that Brigido
had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes
even prior to 5 November 1977 when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on 5 November
and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the testator whether
the contents of the documents were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word for word with their
own copies, it can be safely concluded that the testator was reasonably assured
that what was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten documents.
This is especially true when we consider the fact that the three instrumental
witnesses were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him since
childhood.
The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in order
to insure the authenticity of the will, the formal imperfections should be brushed
aside when they do not affect its purpose and which, when taken into account,
may only defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's Probate
Order and its affirmance by the Court of Appeals, we quote the following
pronouncement inAbangan v. Abangan, 18 to wit:
"The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid the substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on the subject should be interpreted in such a way as
to attain these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's will, must be disregarded"
(emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms
in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast
these aside for the mere reason that a legal requirement intended for his
protection was not followed strictly when such compliance had been rendered
unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance suffices where the purpose
has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent
Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of
time that this case has remained pending, this decision is immediately executory.
Costs against petitioner.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ ., concur.
Footnotes

1.Rollo, pp. 29-37.


2.Penned by Judge Maximiano C. Asuncion Original Records, pp. 214 224.
3.Exhibit "D", Folder of Exhibits, pp. 65-72.

4.Exhibit "E", Id., pp. 73-77.


5.Subsequently transferred to the Regional Trial Court, Br. 26, Sta. Cruz, Laguna.
6.Folder of Exhibits, p. 78.
7.TSN, 3 August 1992, p. 6.
8.Id., pp. 7-8.
9.Rollo, p. 36.
10.TSN, 18 June 1981, p. 3; 20 August 1981, p. 4; 16 September 1981, p. 5; 1
October 1981, p. 4.
11.TSN, 18 June 1981, p. 3; October 1981, p. 9.
12.TSN, 20 August 1981, p. 4; 5 November 1981, pp. 15-16; 14 January 1982, p. 16.
13.No. L-26884, 30 April 1970, 32 SCRA 490, 502-503.
14.Icasiano v. Icasiano, No. L-18979, 30 June 1964, 11 SCRA 422, 429-439;
Abangan v. Abangan, 40 Phil. 476, 479 (1919); Rey v. Cartagena, 56 Phil. 282,
284-285 (1931); Rodriguez v. Yap, 68 Phil. 126, 128 (1939); Leynez v Leynez,
68 Phil. 745, 750 (1939); Roxas v. De Jesus, Jr., No. L-38338, 28 January
1985, 134 SCRA 245, 249.
15.TSN, 18 June 1981, p. 4.
16.TSN, 16 September 1981, pp. 4-5; 14 January 1982, pp. 6, 12.
17.Rodriguez v. Yap, 68 Phil. 126, 128 (1939).
18.40 Phil. 477, 479 (1919).

|||

(In re Alvarado v. Gaviola, Jr., G.R. No. 74695, September 14, 1993)

SECOND DIVISION
[G.R. No. 103554. May 28, 1993.]
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,

HELEN CABALLERO, SANTOS CABALLERO, PABLO


CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his Attorneyin-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs,
JESUS CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA, petitioners,vs. HON. COURT OF APPEALS a
nd WILLIAM CABRERA, as Special Administrator of the
Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondent.
SYLLABUS
1.CIVIL LAW; SUCCESSION; WILL; DEFINED. A will has been defined as a
species of conveyance whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate after
his death (Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code).
2.ID.; ID.; ID.; KINDS; REQUIREMENTS FOR EACH. Under the Civil Code,
there are two kinds of wills which a testator may execute. The first kind is the
ordinary or attested will, the execution of which is governed by Articles 804 to
809 of the Code. In addition to the requirements under Article 805, the ordinary
will must be acknowledged before a notary public by the testator and the
attesting witnesses (Art. 806, Civil Code), hence it is likewise known as a notarial
will. Where the testator is deaf or a deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who will read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged (Art. 808, Civil Code). The
other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the hand of the testator himself. This
kind of will, unlike the ordinary type, requires no attestation by witnesses. A

common requirement in both kinds of wills is that they should be in writing and
must have been executed in a language or dialect known to the testator (Art.
804, Civil Code).
3.ID.; ID.; ID.; ATTESTATION CLAUSE; CONSTRUED. An attestation clause
refers to that part of an ordinary will whereby the attesting witnesses certify that
the instrument has been executed before them and to the manner of the
execution of the same (Testate Estate of Paula Toray, 87 Phil. 139 [1950]). It is a
separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it gives affirmation to the
fact that compliance with the essential formalities required by law has been
observed. (Vda. de Ramos, et al. vs. Court of Appeals, et. al., 81 SCRA 393
[1978]). It is made for the purpose of preserving in a permanent form a
record of the facts that attended the execution of a particular will, so that in
case of failure of the memory of the attesting witnesses, or other casualty, such
facts may still be proved (Leynez vs. Leynez, 68 Phil. 745 [1939]).
4.ID.; ID.; ID.; ID.; ATTESTATION AND SUBSCRIPTION, DIFFERENTIATED.
It will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is that act of the
senses, while subscription is the actof the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification (Hill vs. Davis, 167
P. 465, 466, 64 Okl. 253, L.R.A. 1918 B 687).
5. ID.; ID.; ID.; ID.; REQUIREMENTS; PURPOSES THEREOF. Under the
third paragraph of Article 805, such a clause, the complete lack of which would
result in the invalidityof the will, should state (1) the number of pages used upon
which the will is written; (2) that the testator signed, or expressly caused another
to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed the signing by the
testator of the will and all its pages, and that said witnesses also signed the
will and every page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on

which the will is written is to safeguard against possible interpolation or


omission of one or some of its pages and to prevent any increase or decrease in
the pages; (In the matter of the Estate of Sanguinsin, 41 Phil. 875 [1920]; In re
Will of Andrada, 42 Phil. 180 [1921]) whereas the subscription of the
signatures of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that the will is the
very same instrument executed by the testator and attested to by the witnesses.
(Testate Estate of Paula Toray, 87 Phil. 611 [1938]). Further, by attesting and
subscribing to the will, the witnesses thereby declare the due execution of the will
as embodied in the attestation clause. (Gonzales vs. Gonzales de Carungcong,
90 Phil. 444 [1951]). The attestation clause, therefore, provides strong legal
guaranties for the due execution of a will and to insure the authenticity thereof (
Echevarria vs. Sarmiento, 66 Phil. 611 [1938]). As it appertains only to the
witnesses and not to the testator, it need be signed only by them (Abangan vs.
Abangan, 40 Phil. 476 [1919]). Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and the witnesses.
(Cagro vs. Cagro, 92 Phil. 1032 [1953]). In Taboada vs. Rosal, (118 SCRA 195
[1982]), we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are
done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means,
therefore,of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator and of each other
unless this is substantially expressed in the attestation.
6.ID.; ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. What is fairly
apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in
the presence of the three attesting witnesses and states as well the
number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the
will in the presence of the testator and of each other. The phrase "and he has

signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not
the instrumental witnesses as it is immediately preceded by the words "as his
Last Will and Testament." On the other hand, although the words "in the
presence of the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must however, be
interpreted as referring only to the testator signing in the presence of the
witnesses since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature and on
the left hand margin." What is then clearly lacking, in the final logical analysis,
is the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another. It is our considered view that the
absence of that statement required by law is a fatal defect or imperfection which
must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as merely
involving the form of the will or the language used therein which would warrant
the application of the substantial compliance rule, as contemplated in Article
809 of the Civil Code. Where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the
testator and of each other, the defect is not only in the form or the
language of the attestation clause but the total absence of a specific element
required by Article 805 to be specifically stated in the attestation clause of a will.
That is precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation clause any
statement, or an implication thereof, that the attesting witnesses did actually bear
witness to the signing by the testator of the will and all its pages and that said
instrumental witnesses also signed the will and every page thereof in the
presence of the testator and ofone another.
7.ID.; ID.; ID.; ID.; ID.; RULE ON SUBSTANTIAL COMPLIANCE UNDER ART.
809 OF THE CIVIL CODE; NOT APPLICABLE IN CASE AT BAR. The rule on
substantial compliance in Article 809 cannot be invoked or relied on by
respondents since it presupposes that the defects in the attestation clause can
be cured or supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation clause or

from which it may necessarily be gleaned or clearly inferred that the acts not
stated in the omitted textual requirements were actually complied with in the
execution of the will. In other words, the defects must be remedied by intrinsic
evidence supplied by the will itself. In the case at bar, contrarily, proof of the acts
required to have been performed by the attesting witnesses can be supplied only
by extrinsic evidence thereof, since an overall appreciation of the contents of the
will yields no basis whatsoever from which such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his witnesses alleging
that they saw the compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence
to prove the same and would accordingly be doing by indirection what in law he
cannot do directly. It may thus be stated that the rule, as it now stands, is that
omissions which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will itself.

DECISION

REGALADO, J :
p

Presented for resolution by this Court in the present petition for review on
certiorari is the issue of whether or not the attestation clause contained in the last
will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life, executed a last
will and testament at his residence in Talisay, Cebu before three attesting
witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa.
The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a
notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was

declared therein, among other things, that the testator was leaving by
way of legacies and devises his real and personal properties to Presentacion
Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera
and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the
then Court of First Instanceof Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing on August 20, 1979 but
the same and subsequent scheduled hearings were postponed for one reason or
another. On May 29, 1980, the testator passed away before his petition could
finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera,
one of the legatees named in the will, sought his appointment as special
administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March
6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition, entitled "In the Matter of the Intestate
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R,
before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18,
1982, herein petitioners had their said petition for intestate proceedings
consolidated with Special Proceeding No. 3899-R in Branch
II of the Court of First Instance of Cebu and opposed thereat the probate ofthe
testator's will and the appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known
as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an
order for the return of the records of Special Proceeding No. 3965-R to the
archives since the testate proceedings for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually
assigned to Branch XII of the Regional TrialCourt of Cebu where it remained until
the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the testator was already in a

poor state of health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of the
signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public, Atty. Filoteo Manigos, testified that the testator executed the will in
question in their presence while he was of sound and disposing mind and that,
contrary to the assertions of the oppositors, Mateo Caballero was in good health
and was not unduly influenced in any way in the execution of his will. Labuca
also testified that he and the other witnesses attested and signed the will in the
presence of the testator and of each other. The other two attesting witnesses
were not presented in the probate hearing as they had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
". . . The self-serving testimony of the two witnesses of the oppositors
cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed this Last Will and Testament now marked Exhibit 'C' on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit 'D' clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo
Caballero in Exhibit 'C' examined by a handwriting expert of the NBI but
it would seem that despite their avowal and intention for the
examination of this signature of Mateo Caballero in Exhibit 'C', nothing
came out of it because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
"All told, it is the finding of this Court that Exhibit `C' is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance
with all the requisitesof law." 9

Undaunted by said judgment of the probate court, petitioners elevated the case
to the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the
will in question is null and void for the reason that its attestation clause is fatally
defective since it fails to specifically state that the instrumental witnesses to the
will witnessed the testator signing the will in their presence and that they also
signed the will and all the pages thereof in the presence of the testator
and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming
that of the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:
"The question therefore is whether the attestation clause in question
may be considered as having substantially complied with the
requirements of Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be defective is `we do
certify that the testament was read by him and the testator, Mateo
Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered
correlatively in letters on the upper part of each page, as his Last Will
and Testament, and he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and
all of us' (emphasis supplied).
"To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them
and of one another. Or as the language of the law would have it that the
testator signed the will 'in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.' If not
completely or ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial compliance with the
requirement of the law." 11

Petitioners moved for the reconsideration of said ruling of respondent court, but
the same was denied in the latter's resolution of January 14, 1992, 12 hence

this appeal now before us. Petitioners assert that respondent court has ruled
upon said issue in a manner not in accord with the law and the settled
jurisprudence on the matter and are now questioning once more, on the same
ground as that raised before respondent court, the validity of the attestation
clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter
explain, after some prefatory observations which we feel should be made in
aid of the rationale for our resolution of the controversy.
1.A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree
the disposition ofhis estate after his death. 13 Under the Civil Code, there are two
kinds of wills which a testator may execute. 14 The first kind is the ordinary or
attested will, the execution ofwhich is governed by Articles 804 to 809 of the
Code. Article 805 requires that:
"Art. 805.Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.

LLphil

If the attestation clause is in a language not known to the witnesses, it


shall be interpreted to them."

In addition, the ordinary will must be acknowledged before a notary public by the
testator and the attesting witnesses, 15 hence it is likewise known as a notarial
will. Where the testator is deaf or a deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who will read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that
is entirely written, dated, and signed by the hand of the testator himself. This
kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of wills is that they should be in writing and
must have been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need
not be written in a language or dialect known to the testator since it does not form
part of the testamentary disposition. Furthermore, the language used in the
attestation clause likewise need not even be known to the attesting witnesses. 18
The last paragraph ofArticle 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
manner ofthe execution of the same. 19 It is a separate memorandum or
record of the facts surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the essential
formalities required by law has been observed. 20 It is made for the
purpose of preserving in a permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of the memory of the
attesting witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete
lack of which would result in the invalidity of the will, 22 should state (1) the
number of pages used upon which the will is written; (2) that the testator signed,
or expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its pages, and that said

witnesses also signed the will and every page thereof in the presence ofthe
testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in
the pages; 23 whereas the subscription of the signatures of the testator and the
attesting witnesses is made for the purpose of authentication and identification,
and thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare
the due execution of the will as embodied in the attestation clause. 25 The
attestation clause, therefore, provides strong legal guaranties for the due
execution of a will and to insure the authenticity thereof. 26 As it appertains only to
the witnesses and not to the testator, it need be signed only by them. 27 Where it
is left unsigned, it would result in the invalidation of the will as it would be
possible and easy to add the clause on a subsequent occasion in the
absence of the testator and the witnesses. 28
In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:
cdll

"The underlying and fundamental objectives permeating the provisions


on the law on wills in this Project consists in the liberalization of the
manner of their execution with the end in view of giving the testator more
freedom in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
"This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . ." 29

2.An examination of the last will and testament of Mateo Caballero shows that it
is comprised of three sheets all of which have been numbered correlatively, with
the left margin of each page thereof bearing the respective signatures of the
testator and the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan dialect and is

signed at the foot thereof by the testator. The attestation clause in question, on
the other hand, is recited in the English language and is likewise signed at the
end thereof by the three attesting witnesses thereto. 3 0 Since it is the proverbial
bone of contention, we reproduce it again for facility ofreference:
"We, the undersigned attesting Witnesses, whose Residences and
postal addresses appear on the Opposite of our respective names, we
do hereby certify that the Testament was read by him and the testator,
MATEO CABALLERO, has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in letters on the upper part of each page, as his
Last Will and Testament and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin, in the presence of the said testator and in the presence of each
and all of us."

It will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is that act of the
senses, while subscription is the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rosal, 32 we clarified that attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator and of each other
unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article

805 of the Civil Code for attestation clauses, fails to specifically state the fact that
the attesting witnesses witnessed the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the will and every
page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will and
all its pages in the presence of the three attesting witnesses and states as well
the number of pages that were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their respective signatures to
the will in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the words
"in the presence of the testator and in the presence of each and all of us" may, at
first blush, appear to likewise signify and refer to the witnesses, it must however,
be interpreted as referring only to the testator signing in the presence of the
witnesses since said phrase immediately follows the words "he has signed the
same and every page thereof, on the spaces provided for his signature and on
the left hand margin." What is then clearly lacking, in the final logical analysis,
is the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another.
cdll

It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate. Petitioners
are correct in pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial
compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
"Art. 809.In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in
the form of attestation or inthe language used therein shall not render
the will invalid if it is proved that the will was in fact executed and

attested in substantial compliance with all the requirements of article


805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three, attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witnesses affixed
their respective signatures in the presence of the testator and of each other
since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator
and of each other. The execution of a will is supposed to be one act so that
where the testator and the witnesses sign on various days or occasions and in
various combinations, the will cannot be stamped with the
imprimatur of effectivity. 33
We believe that the following comment of former Justice J.B.L.
Reyes 34 regarding Article 809, wherein he urged caution in the application of the
substantial compliance rule therein, is correct and should be applied in the case
under consideration, as well as to future cases with similar questions:
". . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings." (Emphasis ours.)

3.We stress once more that under Article 809, the defects or imperfections must
only be with respect to the form of the attestation or the language employed
therein. Such defects or imperfections would not render a will invalid should it be
proved that the will was really executed and attested in compliance with Article
805. In this regard, however, the manner of proving the due execution and

attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed each and every
page of the will in the presenceof the testator and of each other. 35 In such a
situation, the defect is not only in the form or the language of the attestation
clause but the total absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is precisely the defect
complained of in the present case since there is no plausible way by which we
can read into the questioned attestation clause any statement, or an implication
thereof, that the attesting witnesses did actually bear witness to the signing by
the testator of the will and all its pages and that said instrumental witnesses also
signed the will and every page thereof in the presence of the testator and of one
another.
cdphil

Furthermore, the rule on substantial compliance in Article 809 cannot be invoked


or relied on by respondents since it presupposes that the defects in the
attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned
or clearly inferred that the acts not stated in the omitted textual requirements
were actually complied with in the execution of the will. In other words, the
defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed
by the attesting witnesses can be supplied only by extrinsic evidence thereof,
since an overall appreciation of the contents of the will yields no basis
whatsoever from which such facts may be plausibly deduced. What private
respondent insists on are the testimonies ofhis witnesses alleging that they saw
the compliance with such requirements by the instrumental witnesses,
oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by indirection what in law he cannot do
directly.
4.Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed in
resolving issues centering on compliance with the legal formalities required in the

execution of wills. The formal requirements were at that time embodied primarily
in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was
later amended by Act No. 2645, but the provisions respecting said formalities
found in Act No. 190 and the amendment thereto were practically reproduced
and adopted in the Civil Code.
One view advanced the liberal or substantial compliance rule. This was first laid
down in the case of Abangan vs. Abangan, 36 where it was held that the
object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will,
hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be
disregarded. The subsequent cases of Avera vs. Garcia, 37 Aldaba vs. Roque,
38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et
al., 41 and Nayve vs. Mojal, et al., 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent
cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy
Coque vs. Sioca, 45 In re Estate of Neumark, 46and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said
case of Gumban, the attestation clause had failed to state that the witnesses
signed the will and each and every page thereof on the left margin in the
presence of the testator. The will in question was disallowed, with these reasons
therefor:
LLjur

"In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court beginning
with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875),
continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs.

Navas L. Sioca [1922], 43 Phil. 405), and In re Estateof Neumark


([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48
Phil., 506). Appellee counters with the citation of a series of cases
beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs.
Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs.
Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to
contrast and, if possible, conciliate, the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra, and
Nayve vs. Mojal and Aguilar, supra.
"In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses signed the
will and each and every page thereof on the left margin in the
presence of the testator is defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was cited, but the
caseof Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it
was held that the attestation clause must state the fact that the testator
and the witnesses reciprocally saw the signing of the will, for such an act
cannot be proved by the mere exhibition of the will, if it is not stated
therein. It was also held that the fact that the testator and the witnesses
signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the
omission to state such evident facts does not invalidate the will.
"It is a habit of courts to reaffirm or distinguish previous cases; seldom
do they admit inconsistency in doctrine. Yet here, unless aided by
casuistry of the extreme type, it would be impossible to reconcile the
Mojal and Quintana decisions. They are fundamentally at variance. If we
rely on one, we affirm. If we rely on the other, we reverse.
"In resolving this puzzling question of authority, three outstanding points
may be mentioned. In the first place, the Mojal decision was concurred in
by only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal dissent. In the

second place, the Mojal decision was promulgated in December, 1924,


while the Quintana decision was promulgated in December 1925; the
Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.

"The right to dispose of property by will is governed entirely by statute.


The law of the case is here found in section 61 of the Code of Civil
Procedure, as amended byAct No. 2645, and in section 634 of the same
Code, as unamended. It is in part provided in section 61, as amended
that 'No will . . . shall be valid . . . unless . . . .' It is further provided in the
same section that `The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other.' Codal section
634 provides that 'The will shall be disallowed in either of the following
cases: 1. If not executed and attested as in this Act provided.' The law
not alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative intention. It
is not within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.
"We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the decision in the
case of Nayve vs. Mojal and Aguilar, supra." (Emphases in the original
text).

But after the Gumbanclarificatory pronouncement, there were


decisions of the Court that once more appeared to revive the seeming
diversity of view that was earlier threshed out therein. The cases of Quinto vs.
Morata, 49 Rodriguez vs. Alcala, 50 Echevarria vs. Sarmiento, 51 and Testate
Estate of Toray 52 went the way of the ruling as restated in Gumban. But De
Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs.

Fabia, 58Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De


Villa, 61 Sabado vs. Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs.
Liboro, 64 veered away from the strict interpretation rule and established a trend
toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the
codification of the substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
"The present law provides for only one form of executing a will, and that
is, in accordance with the formalities prescribed by Section 618 of the
Code of Civil Procedure as amended by Act No. 2645. The
Supreme Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and
non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily restrained the freedom of the
testator in disposing of his property.
"However, in recent years the Supreme Court changed its attitude and
has become more liberal in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated in the
cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No.
46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18,
1941.
"In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618 of the
Code of Civil Procedure before its amendment by Act No. 2645 in the
year 1916. To turn this attitude into a legislative declaration and to attain
the main objective of the proposed Code in the liberalization of the
manner of executing wills, article 829 of the Project is recommended,
which reads:

'ART. 829.In the absence of bad faith, forgery, or fraud, or undue


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

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer
any puzzle or difficulty, nor does it open the door to serious consequences. The
later decisions do tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence ofthe requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and ought to
banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can
be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned
decision of respondent court is hereby REVERSED and SET ASIDE. The court a
quo is accordingly directed to forthwith DISMISS its Special Proceeding No.
3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the Matter of the
Intestate Estate of Mateo Caballero) as an active case and thereafter duly
proceed with the settlement of the estate of the said decedent.
SO ORDERED.
Narvasa, C .J ., Padilla and Nocon, JJ ., concur.
Footnotes

*The first name of this representative party petitioner is also spelled "Armistica" in the
corresponding allegation of the petition.

1.Original Record, 1-3.


2.Exhibit C; Folder of Exhibits in Special Proceeding No. 3899-R, 7-8.
3.Original Record, 1-3, 7, 24, 32.
4.Ibid., 32-34.
5.Ibid., 68-69, 157.
6.Ibid., 98, 116, 143, 148, 157-159.
7.TSN, July 3, 1986, 3-5, 13-17, 23-27; July 18, 1986, 5-10.
8.TSN, October 9, 1984, 11-26; January 4, 1985, 2; April 22, 1985, 10-18.
9.Original Record, 339-340; per Judge Francis J. Militante.
10.Justice Cezar D. Francisco, ponente, with Justices Reynato S. Puno and Jaime D.
Lantin, concurring.
11.Rollo, 9.
12.Ibid., 33.
13.Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code.
14.Report of the Code Commission, 103-105.
15.Art. 806, Civil Code.
16.Art. 808, id.
17.Art. 804, id.
18.3 Tolentino, Civil Code of the Philippines, 68 (1979 ed.).
19.Testate Estate of Paula Toray, 87 Phil. 139 (1950).
20.Vda. de Ramos, et al. vs. Court of Appeals et al., 81 SCRA 393 (1978).
21.Leynez vs. Leynez, 68 Phil. 745 (1939).
22.In re Estate of Neumark, 46 Phil. 841 (1923).
23.In The Matter of the Estate of Sanguinsin, 41 Phil. 875 (1920); In re
Will of Andrada, 42 Phil. 180 (1921).
24.Testate Estate of Paula Toray, supra.

25.Gonzales vs. Gonzales de Carungcong, 90 Phil. 444 (1951).


26.Echevarria vs. Sarmiento, 66 Phil. 611 (1938).
27.Abangan vs. Abangan, 40 Phil. 476 (1919).
28.Cagro vs. Cagro, 92 Phil. 1032 (1953).
29.Report of the Code Commission, 103.
30.Exhibits C to C-18; Folder of Exhibits in Special Proceeding No. 3899-R, 7-9;
Original Record, 4-6.
31.Hill vs. Davis, 167 P. 465, 466, 64 Okl. 253, L.R.A. 1918B 687.
32.118 SCRA 195 (1982).
33.Andalis vs. Pulgueras, 59 Phil. 643 (1934).
34.Lawyer's Journal, November 30, 1950, 566, cited in Tolentino, op. cit., supra, note
17 at 111-112.
35.Uy Coque vs. Sioca, 43 Phil. 405 (1922); Gumban vs. Gorecho, 50 Phil. 30 (1927);
Quinto vs. Morata, 54 Phil. 481 (1930); Rodriguez vs. Alcala, 55 Phil. 150
(1930); Testate Estateof Paula Toray, supra; Gil vs. Marciano. 88 Phil. 261
(1951).
36.40 Phil. 476 (1919).
37.42 Phil. 145 (1921).
38.43 Phil. 378 (1922).
39.43 Phil. 494 (1922).
40.45 Phil. 216 (1923).
41.46 Phil. 922 (1924).
42.47 Phil. 152 (1924).
43.41 Phil. 875 (1920).
44.42 Phil. 180 (1921).
45.43 Phil. 405 (1922).
46.46 Phil. 841 (1923).

47.48 Phil. 506 (1925).


48.50 Phil. 30 (1927).
49.54 Phil. 481 (1930).
50.55 Phil. 150 (1930).
51.66 Phil. 611 (1933).
52.87 Phil. 139 (1950).
53.53 Phil. 104 (1929).
54.56 Phil. 282 (1931).
55.57 Phil. 437 (1932).
56.59 Phil. 653 (1934).
57.68 Phil. 126 (1939).
58.68 Phil. 128 (1939).
59.68 Phil. 745 (1939).
60.70 Phil. 89 (1940).
61.71 Phil. 561 (1940).
62.72 Phil. 531 (1941).
63.72 Phil. 546 (1941).
64.81 Phil. 429 (1948).
65.Report of the Code Commission, 104-105.
66.88 Phil. 260, 281 (1951).
67.Tolentino, op. cit., supra, note 17 at 111.
|||

(Caneda v. Court of Appeals, G.R. No. 103554, May 28, 1993)

THIRD DIVISION
[G.R. No. 122880. April 12, 2006.]

FELIX AZUELA, petitioner, vs. COURT OF APPEALS, GERALDA


AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, respondents.

DECISION

TINGA, J :
p

The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80.
In refusing to give legal recognition to the due execution of this document,
the Court is provided the opportunity to assert a few important doctrinal rules in
the execution of notarial wills, all self-evident in view of Articles 805 and
806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose attestation clause
is not signed by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of these
defects is sufficient to deny probate. A notarial will with all three defects is
just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a notarial will.
Full and faithful compliance with all the detailed requisites under Article
805 of the Code leave little room for doubt as to the validity in the due
execution of the notarial will. Article 806 likewise imposes another safeguard to
the validity of notarial wills that they be acknowledged before a notary public
by the testator and the witnesses. A notarial will executed with indifference to
these two codal provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the
Regional Trial Court (RTC) of Manila. The petition filed by petitioner
Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo,

which was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in
full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagiisip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling
habilin at testamento, at binabali wala ko lahat ang naunang ginawang
habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma
sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang
taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog
upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa
aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa
mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28,
Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan
kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at
lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay
Felix Azuela at ang pagkakaloob kong ito ay walang pasubali't at
kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na
kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng
Hunyo, 1981.

TcDHSI

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong
ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya
niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang
panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa amin, at
kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng
kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
NOTARIO PUBLIKO
Until Dec. 31, 1981
PTR-152041-1/2/81-Manila
TAN # 1437-977-8 1
Doc. No. 1232;
Page No. 86;
Book No. 43;
Series of 1981

The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was
alleged to have resided abroad. Petitioner prayed that the will be allowed, and
that letters testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
decedent. 2 Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for forcible
entry and usurpation of real property, all centering on petitioner's right to occupy
the properties of the decedent. 3 It also asserted that contrary to the
representations of petitioner, the decedent was actually survived by 12 legitimate
heirs, namely her grandchildren, who were then residing abroad. Per records, it
was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who
died in 1965, 4 and the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months. 5
Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedent's signature did
not appear on the second page of the will, and the will was not properly
acknowledged. These twin arguments are among the central matters to this
petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August
1992. 6 The RTC favorably took into account the testimony of the three (3)
witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The
RTC also called to fore "the modern tendency in respect to the formalities in the
execution of a will . . . with the end in view of giving the testator more freedom in
expressing his last wishes;" 7 and from this perspective, rebutted oppositor's
arguments that the will was not properly executed and attested to in accordance
with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having in
mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law
on the formal requirements of a will with the end in view ofgiving the
testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at
the end of the will after the signature of the testatrix, the following
statement is made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't
dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa
harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng
kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.

On the oppositor's contention that the attestation clause was not signed
by the subscribing witnesses at the bottom thereof, this Court is of the
view that the signing by the subscribing witnesses on the left
margin of the second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof, substantially
satisfies the purpose of identification and attestation of the will.
With regard to the oppositor's argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the
attestation did not state the number of pages thereof, it is worthy to note
that the will is composed of only two pages. The first page contains the
entire text of the testamentary dispositions, and the second page
contains the last portion of the attestation clause and acknowledgement.
Such being so, the defects are not of a serious nature as to invalidate
the will. For the same reason, the failure of the testatrix to affix her
signature on the left margin of the second page, which contains only the
last portionof the attestation clause and acknowledgment is not a fatal
defect.
As regards the oppositor's assertion that the signature of the testatrix on
the will is a forgery, the testimonies of the three subscribing witnesses to
the will are convincing enough to establish the genuineness of the
signature of the testatrix and the due execution of the will. 8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision
dated 17 August 1995, the Court of Appeals reversed the trial court and ordered
the dismissal of the petition for probate. 9 The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
rendering the will void and undeserving of probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that
"the number of pages used in a notarial will be stated in the attestation clause" is
merely directory, rather than mandatory, and thus susceptible to what he termed
as "the substantial compliance rule." 11

The solution to this case calls for the application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805.Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806.Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to
retain a copy of the will, or file another with the office of the
Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an
examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the
number of pages of the will. 12 There was an incomplete attempt to comply with
this requisite, a space having been allotted for the insertion of the
number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in
the process Uy Coque v. Navas L. Sioca 13 and In re: Will of Andrada. 14 In Uy
Coque, the Courtnoted that among the defects of the will in question was the
failure of the attestation clause to state the number of pages contained in the
will. 15 In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The
purpose of requiring the number of sheets to be stated in the attestation clause is
obvious; the document might easily be so prepared that the removal of a
sheet would completely change the testamentary dispositionsof the will
and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand,
the total number of sheets is stated in the attestation clause the
falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter
attended with much greater difficulty." 16
The case of In re Will of Andrada concerned a will the attestation clause of which
failed to state the number of sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the point that the defect
pointed out in the attesting clause is fatal." 17 It was further observed that "it
cannot be denied that the . . . requirement affords additional security against the
danger that the will may be tampered with; and as the Legislature has seen fit to
prescribe this requirement, it must be considered material." 18
Against these cited cases, petitioner cites Singson v. Florentino 19 and Taboada
v. Hon. Rosal, 20 wherein the Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the
number of pages of the will. Yet the appellate court itself considered the
import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show
that the attestation does not state the number of pages used upon which
the will is written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel
Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio

[Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the
effect that a will may still be valid even if the attestation does not contain
the number of pages used upon which the Will is written. However, the
Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the
case of "Manuel Singson versus Emilia Florentino, et al., supra,"
although the attestation in the subject Will did not state the
number of pages used in the will, however, the same was found in the
last part of the body of the Will:
"xxx xxx xxx
The law referred to is article 618 of the Code of Civil Procedure,
as amended by Act No. 2645, which requires that the attestation
clause shall state the numberof pages or sheets upon which the
will is written, which requirement has been held to be mandatory
as an effective safeguard against the possibility ofinterpolation or
omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re
Will ofAndrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43
Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause
must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different.
While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last
part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it
within the realm of similar cases where a broad and more liberal
view has been adopted to prevent the will of the testator from
being defeated by purely technical considerations." (page 165165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the


notarial acknowledgement in the Will states the number of pages used in
the:
"xxx xxx xxx
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for
the fact that, in this case, it is discernible from the entire will that it
is really and actually composed of only two pages duly signed by
the testatrix and her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The acknowledgment
itself states that "this Last Will and Testament consists of two
pages including this page" (pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the number of pages used in the will is
not stated in any part of the Will. The will does not even contain any
notarial acknowledgment wherein the number of pages of the will should
be stated. 21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil
Code in 1950, at a time when the statutory provision governing the formal
requirement of wills was Section 618 of the Code of Civil Procedure. 22 Reliance
on these cases remains apropos, considering that the requirement that the
attestation state the number of pagesof the will is extant from Section
618. 23 However, the enactment of the Civil Code in 1950 did put in force a
rule of interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy that governed
these two cases. Article 809 of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not

render the will invalid if it is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that "the underlying and fundamental objective permeating the provisions
on the [law] on [wills] in this project consists in the [liberalization] of the
manner of their execution with the end in view of giving the testator more
[freedom] in [expressing] his last wishes. This objective is in accord with the
[modern tendency] in respect to the formalities in the
execution of wills." 24 However, petitioner conveniently omits the qualification
offered by the Code Commission in the very same paragraph he cites from their
report, that such liberalization be "but with sufficient safeguards and restrictions
to prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator." 25

Caneda v. Court of Appeals 26 features an extensive discussion made by Justice


Regalado, speaking for the Court on the conflicting views on the
manner of interpretation ofthe legal formalities required in the execution of the attestation
clause in wills. 27 Uy Coque and Andrada are cited therein, along with several other

cases, as examples of the application of the rule of strict


construction. 28 However, the Code Commission opted to recommend a more
liberal construction through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809
should be applied:
. . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings. 29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure to state the number of pages of the
will in the attestation clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the probate of a will
whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each
other, 30 the other omission cited by Justice J.B.L. Reyes which to his estimation
cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the
need ofresorting to extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will
itself." 31 Thus, a failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to state that the witnesses
signed in one another's presence should be considered a fatal flaw since the
attestation is the only textual guarantee of compliance. 32
The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the law
in requiring the clause to state the number of pages on which the will is written is
to safeguard against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the pages. 33 The failure to
state the number of pages equates with the absence of an averment on the
part of the instrumental witnesses as to how many pages consisted the will, the
execution of which they had ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised of, as was the situation
in Singson and Taboada. However, in this case, there could have been no
substantial compliance with the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will itself as to the
number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the
inclinations of the members of the Code Commission in incorporating Article 805,
the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the forgery or
intercalation of notarial wills. 34 Compliance with these requirements, however
picayune in impression, affords the public a high degree of comfort that the
testator himself or herself had decided to convey property post mortemin the
manner established in the will. 35 The transcendent legislative intent, even as
expressed in the cited comments of the Code Commission, is for the
fruition ofthe testator's incontestable desires, and not for the indulgent
admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the lefthand margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public.
Cagro v. Cagro 36 is material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the lefthand margin." 37 While three (3) Justices 38 considered the signature requirement
had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed,
rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will
do not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct.
The attestation clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by the attesting

witnesses, and it must necessarily bear their signatures. An unsigned


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

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

The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page
containing such clause. Without diminishing the value of the instrumental
witnesses' signatures on each and every page, the fact must be noted that it is
the attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not the testator, who

are required under Article 805 to state the number ofpages used upon which the
will is written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another. The only proof in the will that the
witnesses have stated these elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by
the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805
and entrusted into a separate provision, Article 806. The nonobservance of Article 806 in this case is equally as critical as the other cited flaws
in compliance with Article 805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote


"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa
Lungsod ng Maynila." 40 By no manner of contemplation can those words be
construed as an acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and declaring it
to be his act or deed. 41 It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor ofa document has attested to the
notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to
by the executor. 42 Ordinarily, the language of the jurat should avow that the
document was subscribed and sworn before the notary public, while in this case,
the notary public averred that he himself "signed and notarized" the document.
Possibly though, the word "ninotario" or "notarized" encompasses the

signing of and swearing in of the executors of the document, which in this case
would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is
that the will be "acknowledged", and not merely subscribed and sworn to. The
will does not present any textual proof, much less one under oath, that the
decedent and the instrumental witnesses executed or signed the will as their own
free act or deed. The acknowledgment made in a will provides for another allimportant legal safeguard against spurious wills or those made beyond the free
consent of the testator. An acknowledgement is not an empty meaningless
act. 43 The acknowledgment coerces the testator and the instrumental witnesses
to declare before an officer of the law that they had executed and subscribed to
the will as their own free act or deed. Such declaration is under oath and under
pain of perjury, thus allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those executed without the free
consentof the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions to those
persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied
by the will in question. We need not discuss them at length, as they are no longer
material to the disposition of this case. The provision requires that the testator
and the instrumental witnesses sign each and every page of the will on the left
margin, except the last; and that all the pages shall be numbered correlatively in
letters placed on the upper part of each page. In this case, the decedent, unlike
the witnesses, failed to sign both pages ofthe will on the left margin, her only
signature appearing at the so-called "logical end" 44 of the will on its first page.
Also, the will itself is not numbered correlatively in letters on each page, but
instead numbered with Arabic numerals. There is a line of thought that has
disabused the notion that these two requirements be construed as
mandatory. 45Taken in isolation, these omissions, by themselves, may not be

sufficient to deny probate to a will. Yet even as these omissions are not decisive
to the adjudication of this case, they need not be dwelt on, though indicative as
they may be of a general lack of due regard for the requirements under Article
805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes
the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.

ESHAcI

SO ORDERED.
Quisumbing, Carpio and Carpio Morales, JJ., concur.
Footnotes

1.Rollo, pp. 21-22.


2.Id. at 35.
3.Id. at 36.
4.Records, p. 505.
5.Id.
6.Penned by Judge Perfecto Laguio, Jr.
7.Rollo, p. 41.
8.Id. at 41-42.
9.Decision penned by Associate Justice (now Supreme Court Associate Justice)
Romeo J. Callejo, Sr., and concurred in by Associate Justices Jorge S. Imperial
and Pacita Caizares-Nye.
10.See rollo, pp. 46-50.
11.Id. at 24.
12.See rollo, p. 26.
13.43 Phil. 405 (1922).
14.42 Phil. 180 (1921).
15.Uy Coque v. Navas L. Sioca, supra note 13, at 409.
16.Id.

17.In re: Will of Andrada, supra note 14 at 181.


18.Id. at 182.
19.92 Phil. 161 (1952).
20.No. L-36033, 5 November 1982, 118 SCRA 195.
21.Rollo, pp. 47-49. Underscoring not ours.
22.Section 618 of the Code of Civil Procedure as amended by Act No. 2645 reads:
"No will, except as provided in the preceding section, shall be valid to pass any estate,
real or personal, nor charge or effect the same, unless it be written in the
language or dialect known by the testator and signed by him, 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. The testator or the
person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
on the left margin, and said pages shall be numbered correlatively in letters
placed on the upper part of each sheet. The attestation shall state the
number of sheets or pages used, upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in
the presence of the testator and each other."
23.Id.
24.Rollo, pp. 23-25.
25.See Report of the Code Commission, p. 103. The full citation reads:
"The underlying and fundamental objectives permeating the provisions of the law on
wills in this Project consists in the liberalization of the manner of their execution
with the end in view of giving the testator more freedom in expressing his last
wishes, but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and
influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. The proposed Code provides for two forms of will,
namely, (1) the holographic, and (2) the ordinary will."
26.G.R. No. 103554, 28 May 1993, 222 SCRA 781.
27.Id. at 795-800.
28.Id. at 796-797.
29.Id. at 794; citing Lawyer's Journal, November 30, 1950, 566. In the same article,
Justice J.B.L. Reyes suggested that Article 809 be reworded in such a manner
that the will would not be rendered invalid if the defects and imperfections in the
attestation "can be supplied by an examination of the will itself and it is proved
that the will was in fact executed and attested in substantial compliance with all
the requirements of Article 805." See R. BALANE, JOTTINGS AND
JURISPRUDENCE IN CIVIL LAW (1998 ed.) at 87, citing Lawyers Journal,
November 30, 1950.
30.Id. at 792-793.
31.Id. at 800.
32.See BALANE, supra note 29, at 87.
33.Caneda v. Court of Appeals, supra note 26 at 790; citing Andrada, supra note 14.
34.The Code Commission did qualify in its Report that the thrust towards liberalization
be qualified "with sufficient safeguards and restrictions to prevent the
commission offraud and the exercise of undue and improper pressure and
influence upon the testator" Supra note 25.
35."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, 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." A. TOLENTINO,
III Civil Code of the Philippines (1992 ed.), at 67.
36.92 Phil. 1032 (1953)
37.Id. at 1033.

38.Justices Felix Bautista Angelo, Pedro Tuason and Felicisimo R. Feria.


39.Cagro v. Cagro, supra note 36, at 1033-1034.
40.Rollo, p. 22.
41.Tigno v. Aquino, G.R. No. 129416, 25 November 2004, 444 SCRA 61, 72.
42.See Gamido v. New Bilibid Prisons Officials, 312 Phil. 100, 104; citing Theobald v.
Chicago Ry. Co., 75 Ill. App. 208.
43.Protacio v. Mendoza, Adm. Case No. 5764, 13 January 2003, 395 SCRA 10, 15;
citing Coronado v. Felongco, 344 SCRA 565 (2000); Nunga v. Viray, 306 SCRA
487 (1999); Arrieta v. Llosa, 282 SCRA 248 (1997); Dinoy v. Rosal, 235 SCRA
419 (1994).
44.To use the term adopted by eminent civilists Prof. Balane and Dr. Tolentino, who
distinguish "the physical end where the writing stops" from "the logical end
where the last testamentary disposition ends." See BALANE, supra note 29
at 60; TOLENTINO, supra note 35, at 70.
45.See e.g., BALANE, supra note 28 at 63, 67; TOLENTINO, supra note 34, at 104.

|||

(Azuela v. Court of Appeals, G.R. No. 122880, April 12, 2006)