G.R. No.

L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
The only question raised by the evidence in this case as to the due execution of the instrument propounded
as a will in the court below, is whether one of the subscribing witnesses was present in the small room
where it was executed at the time when the testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting
with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in
the outside room to see the testator and the other subscribing witnesses in the act of attaching their
signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small room
with the testator and the other subscribing witnesses at the time when they attached their signatures to the
instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree
admitting the document to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down in the
case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in
the outer room when the testator and the other describing witnesses signed the instrument in the inner
room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are
unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their signatures to the instrument in the
inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not
being done "in the presence" of the witness in the outer room. This because the line of vision from this
witness to the testator and the other subscribing witnesses would necessarily have been impeded by the
curtain separating the inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do
so, considering their mental and physical condition and position with relation to each other at the moment
of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the moment of
the subscription of each signature, must be such that they may see each other sign if they choose to do so.
This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed
the instrument in the presence of each other if it appears that they would not have been able to see each
other sign at that moment, without changing their relative positions or existing conditions. The evidence in
the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the
document he was actually and physically present and in such position with relation to Jaboneta that he
could see everything that took place by merely casting his eyes in the proper direction and without any
physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the
paper at the moment of its subscription by each of them, but that at that moment existing conditions and
their position with relation to each other were such that by merely casting the eyes in the proper direction
they could have seen each other sign. To extend the doctrine further would open the door to the possibility
1

of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the last
will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the
appellant.
G.R. No. 1641

January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because
the lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the
witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as
required by the provisions of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particular point, being a part of the
testimony of the said Isabeo Jena:
Q.

1641

Who first signed the will?

A.

1641

I signed it first, and afterwards Aniceto and the others.

Q.

1641

Who were those others to whom you have just referred?

A.
1641 After the witness Aniceto signed the will I left the house, because I was in a hurry,
and at the moment when I was leaving I saw Julio Javellana with the pen in his hand in position
ready to sign (en actitud de firmar). I believe he signed, because he was at the table. . . .
Q.

1641

State positively whether Julio Javellana did or did not sign as a witness to the will.

A.
1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with
the pen in his hand, in position ready to sign. I believe he signed.
Q.

1641

Why do you believe Julio Javellana signed?

A.
1641 Because he had the pen in his hand, which was resting on the paper, though I did not
actually see him sign.
Q.

1641

Explain this contradictory statement.

A.
1641 After I signed I asked permission to leave, because I was in a hurry, and while I was
leaving Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and
when I was near the door I happened to turn my face and I saw that he had his hand with the pen
resting on the will, moving it as if for the purpose of signing.
Q.
1641 State positively whether Julio moved his hand with the pen as if for the purpose of
signing, or whether he was signing
A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of
the parties to the proceedings, but the court, nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances
the document in question, which has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in
question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses,
executed the said document as his will. They were all together, and were in the room where
Jaboneta was, and were present when he signed the document, Isabelo Jena signing afterwards as a
witness, at his request, and in his presence and in the presence of the other two witnesses. Aniceto
Jalbuena then signed as a witness in the presence of the testator, and in the presence of the other
two persons who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took
his hat and left the room. As he was leaving the house Julio Javellana took the pen in his hand and
put himself in position to sign the will as a witness, but did not sign in the presence of Isabelo Jena;
but nevertheless, after Jena had left the room the said Julio Javellana signed as a witness in the
presence of the testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the signature of Javellana was
not signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil
Procedure. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the
act of affixing his signature to the will, taken together with the testimony of the remaining witnesses which
shows that Javellana did in fact there and then sign his name to the will, convinces us that the signature was
affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back was turned
while a portion of the name of the witness was being written, is of no importance. He, with the other
witnesses and the testator, had assembled for the purpose of executing the testament, and were together in
the same room for that purpose, and at the moment when the witness Javellana signed the document he was
actually and physically present and in such position with relation to Javellana that he could see everything
which took place by merely casting his eyes in the proper direction, and without any physical obstruction
to prevent his doing so, therefore we are of opinion that the document was in fact signed before he finally
left the room.
The purpose of a statutory requirement that the witness sign in the presence of the testator is said to
be that the testator may have ocular evidence of the identity of the instrument subscribed by the
witness and himself, and the generally accepted tests of presence are vision and mental
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together
for the purpose of witnessing the execution of the will, and in a position to actually see the testator write, if
they choose to do so; and there are many cases which lay down the rule that the true test of vision is not
whether the testator actually saw the witness sign, but whether he might have seen him sign, considering
his mental and physical condition and position at the time of the subscription. (Spoonemore vs. Cables, 66
Mo., 579.)
The principles on which these cases rest and the tests of presence as between the testator and the witnesses
are equally applicable in determining whether the witnesses signed the instrument in the presence of each
other, as required by the statute, and applying them to the facts proven in these proceedings we are of
opinion that the statutory requisites as to the execution of the instrument were complied with, and that the
lower court erred in denying probate to the will on the ground stated in the ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should
therefore be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days
the record will be returned to the court form whence it came, where the proper orders will be entered in
conformance herewith. So ordered.

G.R. No. L-16592

October 27, 1961

ENRIQUE ICASIANO, plaintiff-appellee,

vs.
FELISA ICASIANO, defendant-appellant.
Appeal from an order of the Court of First Instance of Manila granting plaintiff's motion to dismiss
defendant's first counterclaim and dismissing the latter.
The facts are simple enough. In his complaint, dated July 31, 1959, plaintiff Enrique Icasiano sought to
recover P20,000, plus interest and attorney's fees, from the defendant, Felisa Icasiano. Within the
reglementary period, or on November 9, 1959, the latter filed an answer admitting some allegations of the
complaint, denying other allegations thereof and setting up special defenses, as well as two (2)
counterclaims one for the sum of P150.00 allegedly borrowed by plaintiff from the defendant, and
another for moral and exemplary damages, attorney's fees and expenses of litigation, allegedly suffered and
incurred by the defendant in consequence of this suit, in such sum as the court may find just and
reasonable.
On November 17, 1959, plaintiff moved (a) to dismiss the first counterclaims; (b) to strike out paragraph
two (2) of defendant's answer; and (c) to set the case for hearing on the merits. Despite defendants
objection thereto, on December 7, 1959, the lower court granted the first prayer, denied the second prayer
and set the case for hearing on a stated date. Notice of the order to this effect was served on the defendant
on December 17, 1959, who, three (3), days later, filed her notice of appeal and appeal bond. Plaintiff
countered with a motion to strike out defendant's appeal "in so far as said notice refers to the setting for
hearing of the above entitled case on January 7, 1960, at 8:30 a.m., for the simple reason that said order, in
so far as it sets a date for the hearing of the above entitled case is interlocutory and, therefore, not
appealable, and for the further reason that the intended appeal from said setting order is plainly frivolous
and interposed only for the purpose of delay." This motion was denied in an order dated December 19,
1959, which allowed defendant's appeal "from the order of December 7, 1959, insofar as it orders the
dismissal of defendant's first counterclaim, and setting the hearing of the case on January 7, 1960, at 8:30

a.m." Upon denial by the lower court of plaintiff's motion for reconsideration of its last order, defendant
filed her record an appeal, which, after its amendment was approved "there being no opposition thereto."
Sometime after the transmittal of the amended record on appeal to this Court, or on February 4, 1960,
plaintiff filed a motion to dismiss the appeal upon the ground that defendant's appeal "from the order of the
trial court dated December 7, 1959, dismissing her first counterclaim is manifestly and palpably frivolous"
and that her appeal from said order insofar as it sets the case for hearing is "ostensibly dilatory, aside from
the fact that such setting order is interlocutory and, therefore, not immediately appealable." This motion
was denied by a resolution of this Court dated February 17, 1960. We likewise, denied plaintiff's motion for
reconsideration of said resolution.
The main issue in this appeal is whether or not the lower court erred in holding without jurisdiction to
entertain defendant's first counterclaim. Before passing upon the motive of such question, it should be
noted, however, that the order granting plaintiff's motion to dismiss said counterclaim is interlocutory in
nature and, hence, not appealable, until after judgment shall have been rendered on plaintiff's complaint
(Guanco, et al. vs. Monteblanco, et al., L-14871, April 29, 1961; Villasin vs. Seven-Up Bottling Co. of the
Philippines, L-13501, April 28, 1960; Caldera, et al. vs. Balcueba, et al., 84 Phil. 304).
However, plaintiff did not object to defendant's appeal from said order, except insofar as it set the case for
hearing. In other words, it acquiesced to said appeal as regards the dismissal of the aforementioned
counterclaim. In fact, plaintiff interposed no objection to defendant's amended record on appeal. Hence,
even if the lower court should have disapproved it, for the reason that said order of dismissal is
interlocutory in character, its order approving the amended record on appeal entailed, at most, an error of
judgment that does not affect our jurisdiction to entertain the appeal (Gatmaitan vs. Medina, L-14400,
August 5, 1960; Salazar vs. Salazar, L-5823, April 29, 1953). It may not be amiss to add that the allegation
in the motion, filed by plaintiff with this Court, to dismiss the appeal, to the effect that the same is frivolous
insofar as it seeks a review of the order dismissing defendant's first counterclaim, has no merit, not only
because a party can not be barred upon such ground from appealing by writ of error, but, also, because we
find that the lower court had erred in issuing the order complained of.
Indeed, regardless of whether the court of first instance may entertain counterclaims for less than P5,000, it
must be noted that Articles 1278, 1279, 1286 and 1290, of our Civil Code read: .
"ART. 1278. Compensation shall take place when two persons, in their own right, are creditors and debtors
of each other." .
ART. 1279. In order that compensation may be proper, it is necessary:
(1) That each one of the obligors be bound principally, and that he be at the same time a principal
creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are consumable, they be of the
same kind, and also of the same quality if the latter has been stated;
(3) That the two debts be due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy, commenced by third persons
and communicated in due time to the debtor.

ART. 1286. Compensation takes place by operation of law, even though the debts may be payable at
different places, but there shall be an indemnity for expenses of exchange or transportation to the
place of payment.
ART. 1290. When all the requisites mentioned in article 1279 are present, compensation takes effect
by operation of law, and extinguishes both debts to the concurrent amount, even though the
creditors and debtors are not aware of the compensation.
Pursuant to these provisions, defendant would have been entitled to deduct from plaintiff's claim of
P20,000 if the latter were established the sum of P150 involved in her first counterclaim, if the
allegations thereof were true, even if no such counterclaim had been set up in her answer, for "when all the
requisites mentioned in Article 1279 are present, compensation takes effect by operation of law, and
extinguishes both debts to the concurrent amount, even though the creditors and debtors are not aware of"
and, hence, did not plead "the compensation." Moreover, it is clear from the record before us that
said counterclaim was set up, not so much to obtain money judgment against plaintiff, as by way of set-off,
to reduce the sum collectible by the latter, if successful, to the extent of the concurrent amount (Moore's
Federal Practice, Vol. 1, pp. 695-696) (See, also, Wisdom vs. Guess Drycleaning Co., 5 Fed. Supl., 762767).
WHEREFORE, the order appealed from is hereby reversed, insofar as it dismisses defendant's first counter
claim, and the case is, accordingly, remanded to the lower court for further proceedings, not inconsistent
with this decision with costs against plaintiff-appellee, Enrique Icasiano. It is so ordered.

G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar,
admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan,
Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation
clause is not signed by the attesting witnesses. There is no question that the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
6

We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives
their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered
with costs against the petitioner and appellee.

G.R. Nos. L-3272-73

November 29, 1951

MANUEL GONZALES, petitioner-appellant,

vs.
MANOLITA GONZALES DE CARUNGCONG, petitioner-appellee;
ALEJANDRO GONZALES, JR., and JUAN GONZALES, oppositors-appellants.
On November 27, 1948, Manuel Ibarra Vda. de Gonzales (hereafter to be referred to as testatrix) died at the
age of about seventy-eight years, leaving five children, namely, Alejandro Gonzales, Leopoldo Gonzales,
Manolita Gonzales de Carungcong, and Juan Gonzales. The estate left by her is estimated at P150,000.

On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition (Special
Proceeding No. 837) for the probate of an alleged will executed by the testatrix on November 16, 1942
(Exhibit BManuel Gonzales), devising to Manuel Gonzales the greater portion of the estate, without
impairing the legitimes of the other children.
On December 31, 1948, Manolita G. de Carungcong filed in the same court a petition (Special Proceeding
No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945 (Exhibit 1
Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the estate, without
impairing the legitimes of the other children.
In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the wills
executed on November 16, 1942, and May 5, 1945, on the ground that, assuming their validity, they had
been revoked by the testatrix in an instrument executed by her on November 18, 1948 (Exhibit 2
Alejandro and Juan Gonzales), with the result that her estate should be distributed as if she died intestate.
With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions to one or
the other instruments tending to negative their respective positions.
After a joint hearing, the Court of First Instance of Rizal rendered a decision with the following dispositive
pronouncements:
All facts considered in the light of the evidence presented and in the manner in which the witnesses
testified the court concludes and holds:
First: That Exhibit B
Manuel Gonzales, though validly executed on November 16, 1942,
was revoked by Exhibit 1Manolita G. Carungcong in accordance with the provisions of section
623 of the Code of Civil Procedure.
Second:
That Exhibit 2

Alejandro and Juan Gonzales being executed without the

knowledge and testamentary capacity of the testatrix and being contrary to the provisions of section
618 of the Code of Civil Procedure, the said document is hereby declared null and void.
Third: That Exhibit 1
Manolita G. Carungcong having been executed in accordance with
law the same is hereby declared as the true and last will and testament of the deceased Manuela
Ibarra Viuda de Gonzales, and said will is hereby admitted probate.
From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan Gonzales
have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to pay the
proportionate share of the printing cost of the record on appeal.
In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of the
following form and tenor:
IKALABING-DALAWA. Na ang aking HULING BILIN AT TESTAMENTONG ito ay binubuo ng
PITONG (7) dahon o pagina na may bilang na sunud-sunod at ang bawa't dahon o pagina ay
mayroong tunay kong lagda o firma, gayon din ang lahat ng aking saksi o testigos.
SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite,
Filipinas ngayong ika-5 ng Mayo ng taong 1945, na nakaharap dito sa ating paglagda o pagfirma
ang tatlong saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat at
bawa't dahon o pagina nitong testamento kong ito sa harap ng lahat at bawa't isang saksi o testigos
at ang lahat at bawa't isa naman sa kanila ay nangagsilagda o nagsifirma din dito bilang saksi ko sa
harap ko at sa harap ng lahat at bawa't isa sa kanila, at ganoon din silang mga saksi ko ay nangaglagda o nagsi-firma sa tagilirang kaliwa ng lahat at bawa't isa sa mga dahon o pagina nitong aking
testamento.

(Sgd.)

MANUELA

Y.

VDA.

DE
8

GONZALES
MANUELA
GONZALES

IBARRA

VDA.

DE

Mga Saksi o Testigos:

(Sgd.) BIENVENIDO DE LOS REYES

(Sgd.)
TAHIMIK
T.
SAYOC
(Sgd.) LUIS GAERLAN

It is contended for the appellants that this will does not contain any attestation clause; that, assuming the
concluding paragraph to be the attestation clause, it is not valid because it is the act of the testatrix and not
of the witnesses, and because it does not state the number of sheets or pages of the will.
In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R. No. L-3497, decided May, 1951 * we
sustained, finding a precedent in Aldaba vs. Roque, 43 Phil., 378, an attestation clause made by the testator
and forming part of the body of the will. Through Mr. Justice Bautista, we held:
The clause above quoted is the attestation clause referred to in the law which, in our opinion,
substantially complies with its requirements. The only apparent anomaly we find is that it appears
to be an attestation made by the testator himself more than by the instrumental witnesses. This
apparent anomaly, however, is not in our opinion serious nor substantial as to affect the validity of
the will, it appearing that right under the signature of the testator, there appear the signatures of the
three instrumental witnesses.
Instrumental witnesses, as defined by Escriche in his Diccionario Razobada de Legislacion, y
Jurisprudencia, Vol. 4, p. 1115, is on who takes part in the execution of an instrument or writing" (in
re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely attest
to the signature of the testator but also to the proper execution of the will. The fact that the three
instrumental witnesses have signed the will immediately under the signature of the testator, shows
that they have in fact attested not only to the genuineness of his signature but also to the due
execution of the will as embodied in the attestation clause.
The attestation clause in question bears also similarity with the attestation clause in the will
involved in Aldaba vs. Roque, (43 Phil., 378). In that case, the attestation clause formed part of the
body of the will and its recital was made by the testatrix herself and was signed by her and by the
three instrumental witnesses. In upholding the validity of the will, the court said:
In reality, it appears that it is the testatrix who makes the declaration about the points in the last
paragraph of the will; however, as the witnesses, together with the testatrix, have signed the said
declaration, we are of the opinion and so hold that the words above quoted of the testament
constitute a sufficient compliance with the requirements of Act No. 2465.
Of course three of the Justices of this Court concurred in the result, "in the possibility that the testator in
the present case, or the person or persons who prepared the will had relied upon the ruling laid down in the
case of Aldaba vs. Roque, supra, and that it would now be unfair to reject the present will when in its
preparation a ruling of this Court has been followed." But the case at bar still falls within this view, the will
(Exhibit 1Manolita G. Carongcong) having been executed on May 5, 1945.
The attestation clause contained in the body of the will being thus valid, the statement in the penultimate
paragraph of the will hereinabove quoted as to the number of sheets or pages used, is sufficient attestation
which may be considered in conjunction with the last paragraph. It is significant that the law does not
require the attestation to be contained in a single clause. While perfection in the drafting of a will may be
9

desirable, unsubstantial departure from the usual forms should be ignored, especially when the authenticity
of the will is not assailed, as in this case.
The result reached in respect of the sufficiency of the will (Exhibit 1Manolita G. Carongcong)
necessarily disposes of the contention of the appellant Manuel Gonzales that the trial court erred in not
admitting to probate the will (Exhibit BManuel Gonzales), since the latter will must be considered
revoked by the subsequent will (Exhibit 1Manolita G. Carongcong).
What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will (Exhibit 1
Manolita G. Carongcong) has been revoked by the testatrix in the instrument of November 18, 1948
(Exhibit 2Alejandro and Juan Gonzales) which provides as follows:
Ako, MANUEL YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa ciudad
ng Rizal, may mahusay at wastong pag-iisip at mabuting pagtatanda, sa pamamagitan ng kasulatang
ito at bilang huling kapasiyahan ay sinasaysay ko ito at ipinahahayag sa ngayon sa alin mang
testamento o huling habilin na napirmahan kong una sa kasulatang ito ay pinawawalan ko ng saysay
at kabuluhang lahat pagkat hindi iyong tunay kong kalooban ngayon.
Sa katunayan ng lahat ng ito at sa pagkat hindi ako makalagda ngayon ang pina-kiusapan si
Constancio Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng Noviembre ng taong ito 1948,
dito sa ciudad ng Pasay.
Appellee Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the testatrix
lacked the testamentary capacity when she allegedly executed the instrument of revocation, and their
contention was sustained by the trial court. We have examined the record and found no valid reason for
reversing the finding of said court which had the benefit of observing and hearing the witnesses testify.
Upon the other hand, the following considerations amply support the appealed decision:.
1. For more than ten years prior to her death, the testatrix had suffered from hypertension. On November
14, 1948, she had aphasia and on November 15, 1948, she was taken to the hospital upon advice of the
family physician, Dr. Jose C. Leveriza. In the letter introducing her to the hospital authorities (Exhibit E
Manuel Gonzales), Dr. Leveriza stated that the testatrix was suffering from hypertension and cerebral
thrombosis. Particularly on November 18, 1948, when the alleged instrument of revocation was executed
by her, the testatrix was in a comatose and unconscious state and could not talk or understand. The
following is the testimony of Dr. Leveriza portraying the physical condition of the testatrix up to November
18, 1948:
While appellant Alejandro Gonzales, Jr. has attempted to show that Dr. Leveriza was not an expert, the
latters's testimony remains uncontradicted. The fact that the testimony of the attesting witnesses tends to
imply that the testatrix was of sound mind at the time the alleged instrument of revocation was executed,
cannot prevail over the findings of the attending physician, Dr. Leveriza, because even Dr. Ramon C.
Talavera (an attesting witness) testified that although he had not examined the testatrix, her case appeared
serious; that he had a hunch that "they were taking advantage of the last moment of the deceased and they
were trying to make me an instrument in the accomplishment of their aims," and that he had the idea that
the testatrix was in doubtful condition because he "could only judge from the people going there.".
It is also argued that if the testatrix was in a comatose condition, Dr. Leveriza would not have ordered to
"let her sit on bed or on chair and let her turn on her side sometime." However, Dr. Leveriza has given the
reason for this prescription, namely, to avoid hypostatic pneumonia.
In support of the contention that the testimony of the attesting witnesses should be given more credence
than the opinion of an expert witness, reliance is placed on the case of Caguioa vs. Calderon, 20 Phil., 400;
Bagtas vs. Paguio, 22 Phil., 227; Galvez vs. Galvez, 26 Phil., 243; Samson vs. Corrales Tan Quintin, 44
Phil., 573; Amata vs. Tablizo, 48 Phil., 485, and Neyra vs. Neyra, 42, Off. Gaz., 2790 ** These cases are
notably distinguishable from the case at bar. The former refer to situations in which the doctors were not in
a position to certify definitely as the testamentary capacity of the testators at the time the wills therein
involved were executed, because they had not observed the testators on said dates or never saw them;
whereas the case now before us involves a family physician who attended the testatrix during her last
illness and saw her on the day when the alleged instrument of revocation was executed.
10

2. We cannot help expressing our surprise at the fact that the instrument of revocation was allegedly
executed on November 18, 1948, when, according to the testimony of Jose Padilla, the latter was asked by
the testatrix to prepare the necessary document as early as in the month of May, 1948, and reminded about
it for the second time weeks before November 1, 1948, and for the third time several days before the latter
date (November 1, 1948). The first excuse given by Jose Padilla for the delay is that he was busy and the
children of the testatrix had certain disputes which he tried to settle. The second excuse is that he was not
able to secure soon enough from Alejandro Gonzales, Jr. some documents of transfer which he wanted to
examine in connection with the preparation of the desired instrument of revocation. We are inclined to state
that these excuses are rather poor. If Jose Padilla was too busy to give attention to the matter, he could have
very easily informed the testatrix and the latter, if really desirous of revoking her former wills, would have
employed another to prepare the requisite document. The fact that there were disputes between the children
of the testatrix certainly was not an obstacle to the accomplishment of the wish of the testatrix. Neither was
it necessary to examine the documents relating to the properties of the testatrix, since the instrument of
revocation could be prepared without any reference to the details of her estate. Indeed, the instrument
(Exhibit 2Alejandro and Juan Gonzales) is couched in general terms.
3. Even under the theory of the appellant Alejandro Gonzales, Jr. it is hard to rule that the testatrix had
sufficient testamentary capacity at the time of the execution of the alleged instrument of revocation. In the
first place, Constancio Padilla (brother of Jose Padilla) merely asked the testatrix, first, if she was agreeable
to the instrument of revocation prepared by Jose Padilla, and secondly, if she was agreeable to the signing
of said document by Constancio Padilla, to which two questions the testatrix allegedly answered "Yes". It
is not pretended that the testatrix said more about the matter or gave any further instruction. The attesting
witnesses were not introduced to the testatrix, and their presence was not even mentioned to her. it is
obviously doubtful whether the testatrix understood the meaning and extent of the ceremony. Assuming
that the testatrix answered in the affirmative the two questions of Constancio Padilla, without more, we
cannot fairly attribute to her manifestation of her desire to proceed, right then and there, with the signing of
the questioned instrument. In other words, contrary to the recital of the attestation clause, the testatrix
cannot rightly be said to have published her last will to the attesting witnesses.
The appealed decision is, therefore, affirmed without costs. So ordered.

G.R. No. L-7179

June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOA MATEA LEDESMA, oppositor-appellant.

11

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the
Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon
Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma,
sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said
exhibits were not executed in conformity with law. The appeal was made directly to this Court because the
value of the properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that
the dispositions were procured through undue influence. These grounds were abandoned at the hearing in
the court below, where the issue was concentrated into three specific questions: (1) whether the testament
of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the
testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective.
These questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao
and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that
he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da.
Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's
insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the
paper and signed it in the presence of Yap alone, and returned it with the statement that no one would
question it because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of
the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the
instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted
under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the
house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and
contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then
over 80 years old, should leave her own house in order to execute her will, when all three witnesses could
have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the
testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time
when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term
meant nothing to either. It is well known that what is to be remembered must first be rationally conceived
and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the
will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other
date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado
claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the
house, that was later proved to have been separated from the deceased's quarters, and standing at a much
lower level, so that conversations in the main building could not be distinctly heard from the kitchen. Later,
on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in a room
where the servants used to eat when he heard Yap converse with his mistress; but this correction is
unavailing, since it was plainly induced by two highly leading questions from contestant's counsel that had
been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with this
witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the
contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the
testament or of the codicil, and the identity of the person who inserted the date therein, are not material and
are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details of the
12

transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil
and testament (like legado, partes iguales, plena propiedad) is proof that its contents were not understood
by the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and
that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this
codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged
before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at
the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion.
On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed
and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling
past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878;
The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the
testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and
806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all
that is thereafter required is that "every will must be acknowledged before a notary public by the testator
and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of
their signatures and the voluntariness of their actions in executing the testamentary disposition. This was
done in the case before us. The subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of
the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses
can not be said to violate the rule that testaments should be completed without interruption (Andalis vs.
Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and
no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new
Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.

13

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

AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents.
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of
the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving
spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without
the testator having been fully informed of the content thereof, particularly as to what properties he was
disposing and that the supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this
appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether the
supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses
to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge
the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and
Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom
the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and
subscribed by at least three credible witnesses in the presence of the testator and of each other, considering
that the three attesting witnesses must appear before the notary public to acknowledge the same. As the
third witness is the notary public himself, petitioner argues that the result is that only two witnesses
appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee,
Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement of having at least three attesting
witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely technical
reason that one of the witnesses required by law signed as certifying to an acknowledgment
of the testator's signature under oath rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The notary
public before whom the will was acknowledged cannot be considered as the third instrumental witness
since he cannot acknowledge before himself his having signed the will. To acknowledge before means to
avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster
Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of
the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the
14

third witness were the notary public himself, he would have to avow assent, or admit his having signed the
will in front of himself. This cannot be done because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation in the making of the will. To permit such a
situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one
of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will
as it directly involves him and the validity of his own act. It would place him in inconsistent position and
the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to
the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482;
Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641;
Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W.
Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not
serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries
public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but
also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another
with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would
have the effect of having only two attesting witnesses to the will which would be in contravention of the
provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806
which requires that the testator and the required number of witnesses must appear before the notary public
to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the
notary public for or that purpose. In the circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last
will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.

15

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, v. 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, v. 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, v. 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 NARCISOMANAHAN, Oppositors-Appellants.
SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE;
TESTATRIXS 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 testatrixs
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 ones 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.
16

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 owners duplicate of titles without the courts knowledge and authority and having the
contract bind the land through issuance of new titles in her husbands 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."cralaw
virtua1aw
library
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
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. GonzalesPrecilla 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:chanrob1es virtual 1aw library
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
17

Rosario, executed on 29 December 1960, and for her appointment as special administratrix of the latters
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 petitioners
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 owners
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 owners 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
18

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. L-27200.
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:jgc:chanrobles.com.ph
"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. v. 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
19

"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
latters 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 courts
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:jgc:chanrobles.com.ph
"Q But 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?
"A Under 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).
"Q In laymans language, Doctor, what is the significance of that notation that the right had a degree of 20
over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty
feet.
"Q But would that grade enable the patient to read print?
"A Apparently 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:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
20

"A After her discharge from the hospital, she was coming to my clinic for further examination and then
sometime later glasses were prescribed.
x

"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As 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.
"Q How about the right eye?
"A The 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:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean that she was able to read?
"A No, 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.
x

"Q What about the vision in the right eve, was that corrected by the glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw library
(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 ones worldly possessions should be embodied in
21

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 ones 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."cralaw virtua1aw library
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 testators) 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
22

estate of the deceased may the legal heirs commence an action arising out of a right belonging to their
ancestor.
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 owners duplicates of
TCT Nos. 66201, 66202, and 66204, without the courts 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
latters successor, and having the contract bind the land through issuance of new titles in her husbands
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 but cleared
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. L-26864,
petition is dismissed. No costs.

23

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.
Before us is an appeal from the Decision dated 11 April 1986 of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 of the
Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament with codicil 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
24

be probated was not executed and attested as required by law; that the testator was insane or otherwise
mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will
was executed under duress, or influence of fear and threats; that it was procured by undue and improper
pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's
estate; and lastly, that the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate
Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of
the appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin"
and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code
was admittedly not complied with, probate of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings:
that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his
blindness, the reading requirement of Art. 808 was substantially complied with when both documents were
read aloud to the testator with each of the three instrumental witnesses and the notary public following the
reading with their respective copies of the instruments. The appellate court then concluded that although
Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making
known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the
time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said
article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind
at the time the will and codicil were executed. However, his vision on both eyes was only of "counting
fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and
even
prior
to
his
first
consultation
with
an
eye
specialist
on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator
under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil were executed,
he can be so considered within the scope of the term as it is used in Art. 808. To support his stand,
petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director
of the Institute of Opthalmology (Philippine Eye Research Institute), the contents of which were interpreted
in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa
explained that although the testator could visualize fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977, the day of his first consultation.
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."
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.

25

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," "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 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with his
wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of
reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado
comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him,
he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably
with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential
that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by
one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the document
before signing and to give him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental
witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil
who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading
suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or
compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness
read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been
disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the purpose
of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege.
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
26

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.
Moreover,
it
was
not
only
Atty.
Rino
who
read
the
documents
on
5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read
the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente
O. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether
the contents of the document were of his own free will. Brigido answered in the affirmative. 16 With four
persons following the reading word for word with their own copies, it can be safely concluded that the
testator was reasonably assured that what was read to him (those which he affirmed were in accordance
with his instructions), were the terms actually appearing on the typewritten documents. This is especially
true when we consider the fact that the three instrumental witnesses were persons known to the testator,
one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since
childhood.
The spirit behind the law was served though the letter was not. Although there should be strict compliance
with the substantial requirements of the law in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect its purpose and which, when taken into
account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance
by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, to wit:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on the subject should be interpreted in such a way
as to attain these primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of the right to make
a will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin"
and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legal
requirement intended for his protection was not followed strictly when such compliance had been rendered
unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the
contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance
suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11
April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this
decision is immediately executory. Costs against petitioner.
SO ORDERED.

27

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA,
petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of
Mateo Caballero, respondents.
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.

28

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. 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.
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of
his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same
and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the
testator passed away before his petition could finally be heard by the probate court. 3 On February 25, 1981,
Benoni Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the
testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate
court in its order of March 6, 1981.
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18,
1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding
No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the
Testator's will and the appointment of a special administrator for his estate.
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No.
3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved
first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial
Court of Cebu where it remained until the conclusion of the probate proceedings.
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors
and objected to the allowance of the testator's will on the ground that on the alleged date of its execution,
the testator was already in the poor state of health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein.
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo
Manigos, testified that the testator executed the will in question in their presence while he was of sound
and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good
health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he
and the other witnesses attested and signed the will in the presence of the testator and of each other. The
other two attesting witnesses were not presented in the probate hearing as the had died by then.
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed the Last Will and Testament now marked
Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing of the original
29

petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that he would want the signature of
Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it would
seem that despite their avowal and intention for the examination of this signature of Mateo
Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and
instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the law.
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals
in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason
that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses
to the will witnessed the testator signing the will in their presence and that they also signed the will and all
the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision affirming that of the trial court, and ruling
that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the
Civil Code, thus:
The question therefore is whether the attestation clause in question may be considered as
having substantialy complied with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to be defective is "we do certify
that the testament was read by him and the attestator, Mateo Caballero, has published unto
us the foregoing will consisting of THREE PAGES, including the acknowledgment, each
page numbered correlatively in letters of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page thereof, on the spaces provided for
his signature and on the left hand margin in the presence of the said testator and in the
presence of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to indicate
the meaning that the said will was signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language of the law would have it that
the testator signed the will "in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of
one another." If not completely or ideally perfect in accordance with the wordings of Art.
805 but (sic) the phrase as formulated is in substantial compliance with the requirement of
the law."
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in
the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that
respondent court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence
on the matter and are now questioning once more, on the same ground as that raised before respondent
court, the validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate after his death. Under the Civil

30

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. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation should state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witness, it shall be interpreted to
them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting
witness. hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons
who would read the will and communicate its contents to him in a practicable manner. On the other hand, if
the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and
then again, by the notary public before whom it is acknowledged.
The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation
by witnesses. A common requirement in both kinds of will is that they should be in writing and must have
been executed in a language or dialect known to the testator.
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. The last
paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to
said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of the execution the same. 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. 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.
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the
invalidity of the will, should state (1) the number of the pages used upon which the will is written; (2) that
the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of
the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will
31

and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase
or decrease in the pages; 23 whereas the subscription of the signature of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the
very same instrument executed by the testator and attested to by the witnesses.
Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will
as embodied in the attestation clause. The attestation clause, therefore, provide strong legal guaranties for
the due execution of a will and to insure the authenticity thereof. As it appertains only to the witnesses and
not to the testator, it need be signed only by them. Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the
absence of the testator and its witnesses.
In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be
followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on the law on wills in
this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in the
execution of wills. . . .
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three
sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the
respective signatures of the testator and the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by
the testator. The attestation clause in question, on the other hand, is recited in the English language and is
likewise signed at the end thereof by the three attesting witnesses hereto. Since it is the proverbial bone of
contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on
the Opposite of our respective names, we do hereby certify that the Testament was read by
him and the testator, MATEO CABALLERO; has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as his Last Will and Testament and
he has the same and every page thereof, on the spaces provided for his signature and on the
left hand margin, in the presence of the said testator and in the presence of each and all of
us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the
presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation
is the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical,
and to attest a will is to know that it was published as such, and to certify the facts required to constitute an
actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of identification.

32

In Taboada vs. Rizal, we clarified that attestation consists in witnessing the testator's execution of the will
in order to see and take note mentally that those things are done which the statute requires for the execution
of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing
of the witnesses' names upon the same paper for the purpose of identification of such paper as the will
which was executed by the testator. As it involves a mental act, there would be no means, therefore, of
ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence
of the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the
testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while
it recites that the testator indeed signed the will and all its pages in the presence of the three attesting
witnesses and states as well the number of pages that were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature
and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is
immediately preceded by the words "as his Last Will and Testament." On the other hand, although the
words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear
to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the
testator signing in the presence of the witnesses since said phrase immediately follows the words "he has
signed the same and every page thereof, on the spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical analysis , is the statement that the witnesses
signed the will and every page thereof in the presence of the testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot
be characterized as merely involving the form of the will or the language used therein which would warrant
the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the
Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is not proved that the will was in fact executed
and attested in substantial compliance with all the requirements of article 805" (Emphasis
supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin
of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the
said witness affixed their respective signatures in the presence of the testator and of each other since, as
petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is supposed to be one act so that where the testator and
the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped
with the imprimatur of effectivity.

33

We believe that the further comment of former Justice J.B.L. Reyes regarding Article 809, wherein he
urged caution in the application of the substantial compliance rule therein, is correct and should be applied
in the case under consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are three or
the will was notarized. All theses are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only check against
perjury in the probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with respect to
the form of the attestation or the language employed therein. Such defects or imperfections would not
render a will invalid should it be proved that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the due execution and attestation has been held
to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral
or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the testator and of each other.
35
In such a situation, the defect is not only in the form or language of the attestation clause but the total
absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a
will. That is precisely the defect complained of in the present case since there is no plausible way by which
we can read into the questioned attestation clause statement, or an implication thereof, that the attesting
witness did actually bear witness to the signing by the testator of the will and all of its pages and that said
instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one
another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the
text of the will or a consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the
acts not stated in the omitted textual requirements were actually complied within the execution of the will.
In other words, defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses
can be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will
yields no basis whatsoever from with such facts may be plausibly deduced. What private respondent insists
on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements were at that time embodied
primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by
Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment
thereto were practically reproduced and adopted in the Civil Code.

34

One view advance the liberal or substantial compliance rule. This was first laid down in the case of
Abangan vs. Abangan, 36 where it was held that the object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. Nonetheless, it was also emphasized that one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will,
hence when an interpretation already given assures such ends, any other interpretation whatsoever that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will,
must be disregarded. The subsequent cases of Avera vs. Garcia, Aldaba vs. Roque, Unson vs. Abella,
Pecson vs. Coronel, Fernandez vs. Vergel de Dios, et al., and Nayve vs. Mojal, et al. 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, In re Will of Andrada, Uy Coque vs. Sioca,
In re Estate of Neumark, and Sano vs. Quintana.
Gumban vs. Gorecho, et al., provided the Court with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that
the witnesses signed the will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants rely on
a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy
Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46
Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters
with the citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil.,
476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs.
Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar
([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate
the last two decisions cited by opposing counsel, namely, those of Sano vs. Quintana, supra,
and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does
not recite that the witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a defect annuls the will. The
case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar,
supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar,
supra, wherein it was held that the attestation clause must estate the fact that the testator and
the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by
the mere exhibition of the will, if it is not stated therein. It was also held that the fact that the
testator and the witnesses signed each and every page of the will can be proved also by the
mere examination of the signatures appearing on the document itself, and the omission to
state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we
rely on the other, we reverse.

35

In resolving this puzzling question of authority, three outstanding points may be mentioned.
In the first place, the Mojal, decision was concurred in by only four members of the court,
less than a majority, with two strong dissenting opinions; the Quintana decision was
concurred in by seven members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924, while the Quintana
decision was promulgated in December, 1925; the Quintana decision was thus subsequent in
point of time. And in the third place, the Quintana decision is believed more nearly to
conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the case
is here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and
in section 634 of the same Code, as unamended. It is in part provided in section 61, as
amended that "No will . . . shall be valid . . . unless . . .." It is further provided in the same
section that "The attestation shall state the number of sheets or pages used, upon which the
will is written, and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in the presence
of the testator and of each other." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not executed and attested as in this Act
provided." The law not alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative intention. It is not within the
province of the courts to disregard the legislative purpose so emphatically and clearly
expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the
extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto
vs. Morata, 49 Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, and Testate Estate of Toray went the way
of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., Rey vs. Cartagena, De Ticson vs. De
Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs. Fabia, Leynez vs. Leynez, Martir vs.
Martir,
Alcala
vs.
De
Villa,
Sabado
vs.
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, 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.

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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."
The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The later decisions do tell us when and where to stop; they
draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They only permit a probe into the
will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of
the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.
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.

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