SECOND DIVISION

DY YIENG SEANGIO,

G.R. Nos. 140371-72

BARBARA D. SEANGIO
and VIRGINIA D. SEANGIO,
Petitioners,

Present:

PUNO, J., Chairperson,

-

versus -

SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and

HON. AMOR A. REYES, in her

GARCIA, JJ.

capacity as Presiding Judge,

Regional Trial Court, National
Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D.

Promulgated:

SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO,
SHIRLEY D. SEANGIO-LIM,
BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO,

November 27, 2006

Respondents.
x ---------------------------------------------------------------------------------------- x

DECISION

AZCUNA, J.:

This is a petition for certiorari1[1] with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the nullification of the
orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of
Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of
preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP.
Proc. No. 99-93396, and entitled, In the Matter of the Intestate Estate of Segundo C.
Seangio v. Alfredo D. Seangio, et al. and In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio.

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of
the RTC, and praying for the appointment of private respondent Elisa D. SeangioSantos
as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command of
her faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo,
docketed as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They
likewise reiterated that the probate proceedings should take precedence over SP. Proc.
No. 9890870 because testate proceedings take precedence and enjoy priority over
intestate proceedings.2[2]

The document that petitioners refer to as Segundos holographic will is quoted, as

follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A

Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang
mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging
lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko
at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko
at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin
ang araw na ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin
pagalan para makapagutang na kuarta siya at kanya asawa na si Merna
de los Reyes sa China Bangking Corporation na millon pesos at hindi ng
babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa
na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko
at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak
ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si
Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng
Manila sa harap ng tatlong saksi. 3[3]
(signed)
Segundo Seangio

Nilagdaan sa harap namin

(signed)
Dy Yieng Seangio

(signed)

Unang Saksi

ikalawang saksi

(signed)
ikatlong saksi

On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc.
No. 9993396 were consolidated.4[4]

On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings5[5] primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the Civil
Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir, devisee or legatee, hence,
there is preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on
the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1)

generally, the authority of the probate court is limited only to a determination of the
extrinsic validity of the will; 2) private respondents question the intrinsic and not the
extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a
decedent; and, 4) the rule on preterition does not apply because Segundos will does not
constitute a universal heir or heirs to the exclusion of one or more compulsory heirs. 6[6]
4
5
6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as will by oppositors/petitioners
Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being
omitted, Article 854 of the New Civil Code thus applies. However, insofar
as the widow Dy Yieng Seangio is concerned, Article 854 does not apply,
she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do
otherwise would amount to an abuse of discretion. The Supreme Court in
the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)]
has made its position clear: for respondents to have tolerated the probate
of the will and allowed the case to progress when, on its face, the will
appears to be intrinsically void would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have passed
upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (underscoring supplied).

WHEREFORE, premises considered, the Motion to Suspend

Proceedings is hereby DENIED for lack of merit. Special Proceedings No.
9993396 is hereby DISMISSED without pronouncement as to costs.
SO ORDERED.7[7]

Petitioners motion for reconsideration was denied by the RTC in its order dated
October 14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER

JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED
A QUESTION OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED
10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS A AND B
HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING
WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON
THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND
THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC
VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED
ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE
WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATORS
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT
JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC
VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM
THE FACE OF THE TESTATORS WILL THAT NO PRETERITON EXISTS
AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY
VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A
SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE
OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the
Rules of Court which respectively mandate the court to: a) fix the time and place for
proving the will when all concerned may appear to contest the allowance thereof, and
cause notice of such time and place to be published three weeks successively previous
to the appointed time in a newspaper of general circulation; and, b) cause the mailing of
said notice to the heirs, legatees and devisees of the testator Segundo;

Second, the holographic will does not contain any institution of an heir, but rather,
as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a
disinheritance of a compulsory heir. Thus, there is no preterition in the decedents will
and the holographic will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the
compulsory heirs in the direct line of Segundo were preterited in the holographic will
since there was no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will that it
is both intrinsically and extrinsically valid, respondent judge was mandated to proceed
with the hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice
to petitioners, and will render nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was
dated, signed and written by him in his own handwriting. Except on the ground of
preterition, private respondents did not raise any issue as regards the authenticity of the
document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed

Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same
must be effected through a will wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant under Article 919 of the
Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well as
illegitimate:
(1)
(2)
(3)
(4)
(5)

When a child or descendant has been found guilty of an

attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;
When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
When a child or descendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change one
already made;
A refusal without justifiable cause to support the parents or
ascendant who disinherit such child or descendant;

(6)
(7)
(8)

Maltreatment of the testator by word or deed, by the child or

descendant;8[8]
When a child or descendant leads a dishonorable or
disgraceful life;
Conviction of a crime which carries with it the penalty of civil
interdiction.

Now, the critical issue to be determined is whether the document executed by

Segundo can be considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be
entirely written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be witnessed.

Segundos document, although it may initially come across as a mere

disinheritance instrument, conforms to the formalities of a holographic will prescribed by
law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose
mortis causa9[9] can be clearly deduced from the terms of the instrument, and while it
does not make an affirmative disposition of the latters property, the disinheritance of
Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance
results in the disposition of the property of the testator Segundo in favor of those who
would succeed in the absence of Alfredo. 10[10]

8
9
10

Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized as the
supreme law in succession. All rules of construction are designed to ascertain and give
effect to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect. 11[11]

Holographic wills, therefore, being usually prepared by one who is not learned in
the law, as illustrated in the present case, should be construed more liberally than the
ones drawn by an expert, taking into account the circumstances surrounding the
execution of the instrument and the intention of the testator.12[12] In this regard, the
Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng
Mana, was intended by Segundo to be his last testamentary act and was executed by
him in accordance with law in the form of a holographic will. Unless the will is
probated,13[13] the disinheritance cannot be given effect. 14[14]

11
12
13
14

With regard to the issue on preterition, 15[15] the Court believes that the
compulsory heirs in the direct line were not preterited in the will. It was, in the Courts
opinion, Segundos last expression to bequeath his estate to all his compulsory heirs,
with the sole exception of Alfredo. Also, Segundo did not institute an heir 16[16] to the
exclusion of his other compulsory heirs. The mere mention of the name of one of the
petitioners, Virginia, in the document did not operate to institute her as the universal
heir. Her name was included plainly as a witness to the altercation between Segundo
and his son, Alfredo.

Considering that the questioned document is Segundos holographic will, and that
the law favors testacy over intestacy, the probate of the will cannot be dispensed with.
Article 838 of the Civil Code provides that no will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his property may be
rendered nugatory.17[17]

In view of the foregoing, the trial court, therefore, should have allowed the
holographic will to be probated. It is settled that testate proceedings for the settlement of
the estate of the decedent take precedence over intestate proceedings for the same
purpose.18[18]

15
16
17
18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court
of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the aforesaid testate
proceedings.

No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-3362

March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL,

administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate the alleged will and testament
of the deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this
Court, raising only question of law. Her counsel assigns the two following alleged errors:
Primer Error. El Juzgado inferior erro al dejar de declarar que el alegado
testamento de Carlos Gil no ha sido otogar de acuerdo con la ley.
Segundo Error. Erro finalmente a legalizar el referido testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 aos de edad, residente de Porac, Pampanga, I. F.,
hallandome sano y en pleno goce de mis facultades intelectuales, libre y
expontaneamente, sin violencia, coaccion, dolo o influencia ilegal de persona
extraa, otorgo y ordeno este mi testamento y ultima voluntad en castellano,
idioma que poseo y entiendo, de la manera siguiente:
1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no
tuvimos hijos;
2. Declaro que tengo propiedades situadas en Manila y en la Provincia de
Pampanga;

3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que
muebles e inmuebles situados en Manila y en Pampanga, bajo la condicion de
que cuando esta muera y si hayan bienes remanentes heredadas por ella de mi,
que dichos bienes remanentes se adjudicaran a Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr.
Galicano Coronel a quien tengo absoluta confianza, con relevacion de fianza;
En testimonio de todo lo cual, firmo este mi testamento y en el margen izquierdo
de cada una de sus dos paginas, utiles con la clausula de atestiguamiento en
presencia de los testigos, quienes a su vez firmaron cada una de dichas paginas
y la clausula de atestiguamiento en mi presencia cada uno de ellos con la de los
demas, hoy en Porac, Pampanga, I. F., el dia 27 de Mayo de mil novecientos
treinta y nueve.

CARLOS GIL

Testificacion:

Segunda Pagina (2)

Nosotros los que suscribimos, todos mayores de edad, certificamos: que el

testamento que precede este escrito en la lengua castellana que conoce la
testadora, compuesto de dos paginas utiles con la clausula de atestiguamiento
paginadas correlativamente en letras y numeros en la parte superior de la
casilla, asi como todas las hojas del mismo, en nuestra presencia y que cada
uno de nosotros hemos atestiguado y firmado dicho documento y todas las hojas
del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA

(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAA

Regarding the correctness and accuracy of the above-copied alleged will, the court
below said:

. . . The only copy available is a printed form contained in the record appeal in
case G.R. No. L-254, entitled "Testate Estate of Carlos Gil; Isabel Herreros Vda.
de Gil, petitioner and appellant vs. Roberto Toledo y Gil, oppositor and appellee."
Both parties are agreed that this is a true and correct copy of the will. (P. 10,
Record on Appeal).
The appeal being only on questions of law the above finding of the court below cannot
be disputed. The conclusions of law reached by said court are based on it. Moreover,
the finding is correctly based on the evidence of record. The parties agreed that said
copy is true and correct. If it were otherwise, they would not have so agreed,
considering that the defect is of an essential character and is fatal to the validity of the
attestation clause.
It will be noted that the attestation clause above quoted does not state that the alleged
testor signed the will. It declares only that it was signed by the witnesses. This is a fatal
defect, for the precise purpose of the attestation clause is to certify that the testator
signed the will, this being the most essential element of the clause. Without it there is no
attestation at all. It is said that the court may correct a mere clerical error. This is too
much of a clerical error for it effects the very essence of the clause. Alleged errors may
be overlooked or correct only in matters of form which do not affect the substance of the
statement.
It is claimed that the correction may be made by inference. If we cure a deficiency by
means of inferences, when are we going to stop making inferences to supply fatal
deficiencies in wills? Where are we to draw the line? Following that procedure we would
be making interpolations by inferences, implication, and even by internal circumtantial
evidence. This would be done in the face of the clear, uniquivocal, language of the
statute as to how the attestation clause should be made. It is to be supposed that the
drafter of the alleged will read the clear words of the statute when he prepared it. For
the court to supply alleged deficiencies would be against the evident policy of the law.
Section 618 of Act No. 190, before it was amended, contained the following provision:
. . . But the absence of such form of attestation shall not render the will invalid if it
proven that the will was in fact signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides
increasing the contents of the attestation clause, entirely suppressed the above-quoted
provision. This would show that the purpose of the amending act was to surround the
execution of a will with greater guarantees and solemnities. Could we, in view of this,
hold that the court can cure alleged deficiencies by inferences, implications, and
internal circumstantial evidence? Even in ordinary cases the law requires certain
requisities for the conclusiveness of circumstantial evidence.
It is contended that the deficiency in the attestation clause is cured by the last
paragraph of the body of the alleged will, which we have quoted above. At first glance, it
is queer that the alleged testator should have made an attestation clause, which is the

function of the witness. But the important point is that he attests or certifies his own
signature, or, to be accurate, his signature certifies itself. It is evident that one cannot
certify his own signature, for it does not increase the evidence of its authenticity. It
would be like lifting one's self by his own bootstraps. Consequently, the last paragraph
of the will cannot cure in any way the fatal defect of the attestation clause of the
witnesses. Adding zero to an insufficient amount does not make it sufficient.
It is said that the rules of statutory construction are applicable to documents and wills.
This is true, but said rules apply to the body of the will, containing the testamentary
provisions, but not to the attestation clause, which must be so clear that it should not
require any construction.
The parties have cited pro and con several decisions of the Supreme Court, some of
which are said to be rather strict and others liberal, in the interpretation of section 618 of
Act No. 190, as amended by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF
THE CODE OF CIVIL PROCEDURE CONSTRUED. The right to dispose of
the property by will is governed entirely by statute. The law is here found in
section 618 of the Code of Civil Procedure, as amended. The law not alone
carefully makes use of the imperative, but cautiously goes further and makes use
of the negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. The Philippine authorities relating to the attestation
clause to wills reviewed. The cases of Sao vs. Quintana ([1925], 48 Phil., 506),
and Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152), particularly compared.
The decision in In re Will of Quintana, supra, adopted and reaffirmed. The
decision in Nayve vs. Mojal and Aguilar, supra, modified.
3. ID.; ID.; ID.; ID. The portion of section 618 of the Code of Civil Procedure,
as amended, which provides that "The attestation clause 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" applied and enforced.
4. ID.; ID.; ID.; ID. 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. (Sano
vs. Quintana, supra.)

In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V.
Moran, now Chief Justice of the Supreme Court, in his decision made the following
pronouncement:
. . . En la clausula de atestiguamiento del testamento en cuestion, se hace
constar que los testadores firmaron el testamento en presencia de los tres
testigos instrumentales y que estos firmaron el testamento los unos en presencia
de los otros, pero no se hace constar que dichos testigos firmaron el testamento
en presencia de los testadores, ni que estos y aquellos firmaron todas y cada
una de las paginas del testamento los primeros en presencia de los segundos y
vice-versa.
En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado
testamento Exhibit A de Gregorio Pueblo y Carmen Quinto, y se declara que
Gregorio Pueblo murio intestado.
The Supreme Court fully affirmed the decision, laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF.
The attestation clause must be made in strict conformity with the requirements of
section 618 of Act No. 190, as amended. Where said clause fails to show on its
face a full compliance with those requirements, the defect constitutes sufficient
ground for the disallowance of the will. (Sano vs. Quintana, 48 Phil., 506;
Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde should not be admitted to
establish facts not appearing on the attestation clause, and where said evidence
has been admitted it should not be given the effect intended. (Uy Coque vs.
Navas L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS
AMENDED. Section 618 of Act No. 190, as amended, should be given a strict
interpretation in order to give effect to the intention of the Legislature. Statutes
prescribing formalities to be observed in the execution of wills are very strictly
construed. Courts cannot supply the defensive execution of will. (40 Cyc., p.
1079; Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of
the Gumban vs. Gorcho case, supra, but not to the extent of validating an attestation
clause similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation
clause which was complete, and it was also signed by the two attesting witnesses. For
this reason, the court said:
In reality, it appears that it is the testatrix who makes the declaration about the
points contained in the above described paragraph; 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 section 1 of Act No. 2645 which provides
that: . . . (p. 381, supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:
An attestation clause to a will, copied from a form book and reading: "We, the
undersigned attesting witnesses, whose residences are stated opposite our
respective names, do hereby certify that the testatrix, whose name is signed
hereinabove, has publish unto us the foregoing will consisting of two pages as
her Last Will and Testament, and has signed the same in our presence, and in
witness whereof we have each signed the same and each page thereof in the
presence of said testatrix and in the presence of each other," held not to be
fatally defective and to conform to the law.
This very different from the attestation clause in the case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23,
1939), the will was objected to on the ground that, although the attestation clause stated
that "each of the pages of which the said will is composed" was signed by the testatrix
at the left margin and at the foot of the fifth page, it did not state that the signature was
made in the presence of the witnesses. It was held, however, that said deficiency was
cured by the phrase "as well as by each of us in the presence of the testatrix." The
words "as well as" indicate that the testatrix signed also in the presence of the
witnesses, for the phrase "as well as" in this case is equivalent to "also." The language
is clear and, unlike the attestation clause in the present case, does not necessitate any
correction. In the body of the will the testatrix stated that she signed in the presence of
each and all of the three witnesses. This was considered as a corroboration, but it was
unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October
18, 1939; 68 Phil., 745), the attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y
testamento en presencia de todos y cada uno de nosotros, y a ruego de dicho
testador, firmamos el presente cada uno en presencia de los otros, o de los
demas y de la del mismo testsador, Valerio Leynez. El testamento consta de dos
(2) paginas solamente.
The objection was that the attestation clause did not state that the testator and the
witnesses signed each and every page of the will. This fact , however, appears in the
will itself. It is clear, therefore, that in case of the will complied with all the requisites for
its due execution. In the instant case, essential words were omitted.

In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No.
23, April 18, 1939), the attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr.
Emiliano Alcala su ultima voluntad o testamentao compuesto de cuatro paginas
incluida ya esta clasula de atestiguamiento. Que estabamos presentes en el
momento de leer y ratificar el que el testamento arriba mencionado es su ultima
voluntad o testamento compuesto de cuatro paginasen papel de maquinilla. Que
igualmente estabamos presentes cuando el firmo este documento al pie del
mismo y en el margen izquierdo de cada pagina del testador tambien en
presencia suya y de cada uno de nosotros en cada pagina y en el margen
izquierdo de esta escritura o testamento. En su testimonio firmamos abajo en
prsencia del testador y de cada uno de nosotros.
The above attestation clause is substantially perfect. The only clerical error is that it
says "testador" instead of "testamento" in the phrase "cada pagina del testador." The
word "tambien" renders unnecessary the use of the verb "firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the
attestation clause did not state the number of pages of the will. However, it was held
that this deficiency was cured by the will itself, which stated that it consisted of three
pages and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947),
decided by the Court of Appeals, the attestation clause (translated in Spanish) reads as
follows:
Nosotros, los testigos, certificamos que este que hemos firmado es el
testamento y ultima voluntad, que se ha redactado en cuatro paginas, de
Numeriano Rallos, quien despues de leer y de leer y de leerle el mencionado
testamento, y despues de que ella dio su conformidad, firmo y marco con su
dedo pulgar derecho en nuestra presencia y en presencia de cada uno de
nosotros, que asimismo cada uno de nosotros, los testigos, firmamos
enpresencia de la testadora y en presencia de cada uno de nosotros.
It will be noticed that the only thing omitted is the statement as to the signing of the
testatrix and the witnesses of each and every page of the will, but the omission is cured
by the fact that their signatures appear on every page. This attestation clause is
different from that involved in the present case.
There is no reason why wills should not be executed by complying substantially with the
clear requisites of the law, leaving it to the courts to supply essential elements. The right
to dispose of property by will is not natural but statutory, and statutory requirements
should be satisfied.

The right to make a testamentary disposition of one's property is purely of

statutory creation, and is available only upon the compliance with the
requirements of the statute. The formalities which the Legislature has prescribed
for the execution of a will are essential to its validity, and cannot be disregarded.
The mode so prescribed is the measure for the exercise of the right, and the heir
can be deprived of his inheritance only by a compliance with this mode. For the
purpose of determining whether a will has been properly executed, the intention
of the testator in executing it is entitled to no consideration. For that purpose only
intention of the Legislature, as expressed in the language of the statute, can be
considered by the court, and whether the will as presented, shows a compliance
with the statute. Estate of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460,
52 Am. St. Rep. 104. In re Seaman's Estate, 80 Pac., 700, 701.)
In interpreting the legislature's thought, courts have rigidly opposed any
exception tending to weaken the basic principle underlying the law, the chief
purpose of which is to see that the testator's wishes are observed. It is possible,
in some or many cases, a decedent may have thought he had made a will, but
the statute says he had not. The question is not one of his intention, but of what
he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills . . . truly
expressing the intertions of the testator are made without observations of the
required forms; and whenever that happens, the genuine intention is
frustrated. . . . The Legislature . . . has taught of it best and has therefore
determined, to run the risk of frustrating (that intention, . . . in preference to the
risk of giving effect to or facilitating the formation of spurious wills, by the
absence of forms. . . . The evil probably to arise by giving to wills made without
any form, . . ." or, in derogation of testator's wishes, fraudulently imposing
spurious wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101,
103 Atl. 533.
It has always been the policy of this court to sustain a will if it is legally possible
to do so, but we cannot break down the legislative barriers protecting a man's
property after death, even if a situation may be presented apparently meritorious.
(In Re: Maginn, 30 A. L. R., pp. 419, 420.)
In view of the foregoing, the decision appealed from is reversed, denying the probate of
the alleged will and declaring intestate the estate of the deceased Carlos Gil. With costs
against the appellee. It is so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions
TUAZON, J., dissenting:

The decision takes for granted that the will was written just as it was copied in the
stipulation of facts by the parties. But counsel for appellee makes the correctness of the
copy an issue thereby raising the question of not whether the burnt will possessed the
statutory requirements but whether the copy is erroneous. Since this is a chief feature
on which the appellee's case is built; since, in fact, the objection to form of the
attestation clause, with which the decision wholly deals, would disappear if the
appellee's contention were well founded, it is proper that in this dissenting opinion we
should accord the matter at least a passing notice.
It may be stated as background that the original of the will was filed in the Court of First
Instance of Manila in 1943; that in 1945, before the will came up for probate, it was
destroyed by fire or looters; that in the probate proceeding after liberation, the parties
submitted an agreed statement of facts in which the will was reproduced as copied in
the record on appeal in another case docketed in this court on appeal as G.R. No. L254 and decided on April 30, 1948. It further appears from the record of that case and
from the decision of this court that the controversy there concerned the right of a
nephew of the testator to impugn the will, it being alleged that he was not a legal heir
and had no interest in the probate.
As transcribed in the majority decision, it will be seen that the attestation clause is
truncated and meaningless. The last of the compound sentence in incomplete, lacking
an adjective phrase. Counsel for appellee contends that the phrase "ha sido firmado por
el testador" or equivalent expression between the words "del mismo" and the words "en
nuestra presencia" should be inserted if the sentence is to be complete and have sense.
The attestation clause with the inclusion of the omitted phrase, which we italicize should
read thus:
Nosotros, los que suscribimos, todos mayores de edad, certificamos que el
testamento que precede escrito en la lengua castellana que conoce la testador,
compuesto de las paginadas utiles con la clausula de atestiguamiento paginadas
correlativamente en letras y numeros en la parte superior de la casilla, asi como
todos las hojas del mismo (Ha sido firmado por el testador) en nuestra presencia
y que cada de nosotros hemos atestiguado y firmado dicho documento y todas
las hojas del mismo presencia del testador y en la de cada uno de nosotros.
It seems obvious that the missing phrase was inadvertently left out. The probabilities of
error in the copy are enhanced by the fact that the form of the will was not in
controversy. The form of the will being immaterial, it is easily conceivable that little or on
care was employed in the copying thereof in the pleading or record on appeal above
mentioned. The absence of the signature of the testator on the first page of the copy is
an additional proof that little or on pain was taken to insure accuracy in the transcription.
The appearance of "la testadora" in the copy instead of "el testador" is another.
Quite aside from all this, the testator was presumed to know the law, as the decision
says. Certainly, Attorney Mariano Omaa, who drafted the whole instrument and signed

it as an attesting witness, knew the law and, by the context of the whole instrument, has
shown familiarity with the rules of grammar and ability to express his idea properly.
Read in the light of these circumstances without mentioning the evidence or record,
not objected to, that the testator signed the will in the presence of the attesting
witnesses so important an omission as to make the sentence senseless granting
such omission existed in the original document-could not have been intentional or due
to ignorance. The most that can be said is that the flaw was due to a clerical mistake,
inadvertance, or oversight.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced
in the record on Appeal" above mentioned is bound by the agreement. This is not an
absolute rule. The binding effect of a stipulation on the parties does not go to the extent
of barring them or either of them from impeaching it on the score of clerical error or
clear mistake. That there was such mistake, is indubitable. It is noteworthy that the
opponent and appellant herself appears not to have noticed any defect in the attestation
clause as copied in the stipulation. It would seem that in the court below she confined
her attack on the will to the alleged failure of the testator to sign the first page. We say
this because it was only the alleged unsigning of the first page of the document which
the trial court in the appealed decision discussed and ruled upon. There is not the
slightest reference in the decision, direct or implied, to any flaw in the attestation clause
which is by far more important than the alleged absence of the testator's signature on
the first page.
As stated the problem posed by the omission in question is governed, not by the law of
wills which requires certain formalities to be observed in the execution, but by the rules
of construction applicable to statues and documents in general. And this rule would
obtain even if the omission had occurred in the original document and not in the copy
alone. In either case, the court may and should correct the error by supplying the
omitted word or words.
In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que
en su redaccion se ha incurrido en omisiones que la razon y el sentido comon
pueden suplirlas sin alterar ni tergiversar la intencion tanto del testador como la
de los tres testigos que intervinieron en el otorgamiento de la misma. Teniendo
en cuenta la fraselogia de la segunda parte de la clausula se observara que las
omisiones, aunque son substanciales, consisten en meros errores gramaticales
que los tribunales, en el ejercicio de su discrecion y en la aplicacion de las reglas
de interpretacion de documentos, pueden subsanarlos para dar efectividad a la
intencion y hacer que el conjunto de los terminos de la clausula de atestacion
surtan sus efectos.
La interpritacion que se acaba de bar a la clausula de atestacion y la correccion
de los errores gramaticales de que misma adolece, incluyendo la insercion del

verbo "firmamos" que se omitio involuntariamente, esta de acuerdo con las

reglas fundamentals de interpretacion de documentos segun las cuales se debe
hacer prevalecer siempre la intencion del que haya redactado el instrumento (art.
288, Cod. de Proc. Civ.; Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., sec. 187,
pags. 225, 226.)
La solucion que se acaba de bar al asunto es la que se halla mas conforme con
la justificia en vista de que se ha presentado prueba alguna que insinue siquiera
que en el otorgamiento del testamento se ha cometido dolo o fraude con el
animo de perjudiar a cualquiera. (Testamentaria de Emiano Alcala, 40 G. O., 14.
Suplemento, No. 23, pags. 131, 132.)
From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court
whenever necessary to effectuate the testator's intention as expressed in the will; but
not where the effect of inserting the words in the will would alter or defeat such
intention, or change the meaning of words that are clear and unequivocal." On pages
50, 51, the same work says: "To aid the court in ascertaining and giving effect to the
testator's intention in the case of an ambiguous will, certain rules have been established
for guidance in the construction or interpretation to be placed upon such a will, and in
general a will should be construed according to these established rules of construction."
Speaking of construction of statutes which, as has been said, is applicable to
construction of documents, the same work, in Vol. 59, p. 992, says: "Where it appears
from the context that certain words have been inadvertently omitted from a statute, the
court may supply such words as are necessary to complete the sense, and to express
the legislative intent.
Adding force to the above principle is the legal presumption that the will is in
accordance with law. (2 Page on Wills, 840, 841; 57 Am. Jur., 720.)
Let us assume, for the purpose of this decision only, that the attestation clause was
drawn as the draftsman intended, that the mistake in language in said clause was not
inadvertent, and consider the case on the premise from which the court has approached
it; is the decision well grounded, at least in the light of this court's previous decisions?
At the outset, it should be pointed out that as early as 1922 a similar case, in which the
validity of the will was sustained, found its way into this court. (Aldaba vs. Roque, 43
Phil., 378). The case was more than four-square behind the case at bar. There the
departure from the statutory formality was more radical, in that the testator took charge
or writing the entire attestation clause in the body of the will, the witnesses limiting their
role to signing the document below the testator's signature. Here, at most, the testator
took away from the witness only a small part of their assigned task, leaving them to
perform the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous
decision in banc, through Mr. Justice Villamor said (syllabus): "When the attestation
clause is signed by the witnesses to the instruments besides the testator, such

attestation clause is valid and constitutes a substantial compliance with the provisions of
section 1 of Act No. 2645, even though the facts recited in said attestation appear to
have been make by the testator himself."
That was good doctrine when it was announced. We think it is good law still. That ruling
should set the present case at rest unless the court wants to discard it. On the
possibility that this is the intention, we will dwell on the subject further.
This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil., 437, "that
there have been noticeable in the Philippines two divergent tendencies in the law of
wills the one being planted on strict construction and the other on liberal construction.
A late example of the former views may be found in the decision in Rodriguez vs. Alcala
(1930), 55 Phil., 150, sanctioning a literal enforcement of the law. The basic case in the
other direction, predicated on reason, is Abangan vs. Abangan (1919), 40 Phil., 476, oftcited approvingly in later decisions." In the Abangan case, unanimous court, speaking
through Mr. Justice Avancea, later Chief Justice, observed: "The object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to
attain these primodial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded."
Subsequent decisions which followed and adopted the Abangan principle were
numerous: Avera vs. Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil.,
378; Unson vs. Abella (1922,) 43 Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216;
Fernandez vs. Vergel de Dios (1924), 46 Phil., 922; Nayve vs. Mojal (1924), 47 Phil.,
152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs. Cartegana (1931), 56 Phil.,
282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de M. Ozoa (1933), 57 J.
F., 1007; Sebastian vs. Paganiban (1934), 59 Phil., 653; Rodriguez vs. Yap (1939)1, 40
Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st Suppl. No.
3, p. 196; Leynez vs. Leynez (1939)3, 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs.
Martir (1940)4, 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941)5,
40 Off. Gaz., 1844; Mendoza vs. Pilapil (1941)6 40 Off. Gaz., 1855; Alcala vs. De Villa
(1941)7, 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948)8, 46 Off.
Gaz., Suppl. No. 1, p. 211.
The majority decision says, and we quote: "If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in
wills? Where are we to draw the line?" These same questions might well have been
asked in the case above cited by the opponents of the new trends. But the so-called
liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The decisions we have cited to tell us when and where to stop; the
dividing line is drawn with precision. They say "Halt" when and where evidence aliunde

to fill a void in any part of the document is attempted. They only permit a probe, an
exploration within the confines of the will, to ascertain its meaning and to determine the
existence or absence of the formalities of law. They do not allow the courts to go outside
the will or to admit extrinsic evidence to supply missing details that should appear in the
will itself. This clear, sharp limitation eliminates uncertainly and ought to banish any fear
of dire results.
The case at hand comes within the bounds thus defined. If the witnesses here
purposely omitted or forgot that the testator signed the will in their presence, the testator
said that he did and the witnesses by their signatures in the will itself said it was so. No
extraneous proof was necessary and none was introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it was the thing
that led to unfortunate consequences. It was the realization of the injustice of the old
way that impelled this court, so we believe, to forsake the antiquated, outworn worship
of form in preference to substance. It has been said, and experience has known, that
the mechanical system of construction has operated more to defeat honest wills than
prevent fraudulent ones. That, it must be conceded, is the effect in this case of this
court's rejection of the will under consideration. For the adverse party concedes the
genuineness of the document. At least, the genuineness is super obvious, and there is
not the slightest insinuation of undue pressure, mental incapacity of the testator of
fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence
"would be like lifting one's self by his own bootstraps." The simile, we say with due
respect, does not look to us quite well placed. Under physical law a man cannot raise
his body from the ground by his own bare hands without the aid of some mechanical
appliance, at least not for more than a flitting moment. But there is no impossibility or
impropriety in one attesting to his own act unless forbidden by rules of positive law. The
rationale of our dissent is that he is not. If we were to make a metaphorical comparison,
it would be more appropriate to say that a man can and generally does himself pull the
bootstraps to put the boots on.
Coming to execution of wills, we see no legitimate practical reason for objecting to the
testator instead of the witnesses certifying that he signed the will in the presence of the
latter. The will is the testator's and the intervention of attesting witnesses is designed
merely to protect the testator's and not anybody else's interest.
If the sole purpose of the statute is to make it certain that the testator has definite and
complete intention to pass his property, and to prevent, as far as possible, any chance
of substituting one instrument for another (1 Page on Wills, 481), What better guaranty
of the genuineness of the will can there be than a certification by the testator himself in
the body of the will so long as the testator's signature is duly authenticated? Witnesses
may sabotage the will by muddling it or attestation clause. For the testator, who is
desirous of making a valid will, to do so would be a contradiction. If the formalities are
only a means to an end and not the end themselves, and that end is achieved by

another method slightly different from the prescribed manner, what has been done by
the testator and the witnesses in the execution of the instant will should satisfy both law
and conscience. The chief requirements of statutes are writing, signature by the
testator, and attestation and signature of three witnesses. Whether the courts profess to
follow the harsher rule, whether to follow the milder rule, they agree on one thing that
as long as the testator performs each of those acts the courts should require no more.
(1 Page on Wills, 481, 484.)
Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.

RESOLUTION

March 20, 1953

TUASON, J.:
This appeal is before us on a motion for reconsideration of this court's decision.
Whereas formerly six justices voted for reversal and five for affirmance of the probate
court's order admitting the will to probate, the vote upon reconsideration was six for
affirmance and five for reversal, thereby making the dissenting opinion, which had been
filed, the prevailing rule of the case. Under the circumstances, this resolution will largely
be confined to a restatement of that dissenting opinion.
The will in question was presented for probate in the Court of First Instance of Manila in
1943 with Roberto Toledo y Gil, decedent's nephew, and Pilar Gil Vda. de Murciano,
decedent's sister opposing the application. Toledo's legal right to intervene was
questioned by the proponent of the will, and the objection was sustained in an order
which was affirmed by this court in G. R. No. L-254. As a result of the latter decision,
Toledo was eliminated from the case and did not appear when the trial was resumed.
The proceeding seems to have held in abeyance pending final disposition of Toledo's
appeal, and early in 1945, before the application was heard on the merit, the record,
along with the will, was destroyed, necessitating its reconstitution after liberation. In the
reconstitution, a stipulation of facts was submitted in which, according to the appealed
order, "both parties . . . agreed that the will as transcribed in the record on appeal in
Case G. R. No. L-254 is true and a correct copy.
The will consisted of only two pages, and the attestation clause as thus copied reads:
NOSOTROS los que suscribimos, todos mayores de edad, certificamos: que el
testamento que precede escrito en la lengua castellana que canoce la testador,
compuesto de dos paginas utiles con la clausula de atestigamiento paginadas

correlativamente en letras y numeros en la parte superior de la casilla, asi como

todas las hojas del mismo, en nuestra presencia y que cada uno de nosotros
hemos atestiguado y firmado dicho documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA.
(Fdo.) RAMON MENDIOLA.
(Fdo.) MARIANO OMAA
It will be noted from the above copy that the last of the compound sentence is truncated
and meaningless. This defect is the main basis of the appellant's sole assignment of
error.
Counsel for appellee contend that the phrase "han sido firmadas por el testador" or
equivalent expression between the words "del mismo" and the words "en nuestra
presencia" should be inserted if the attestation clause is to be complete and have
sense. With this insertion the attestation clause would read ". . ., asi como todas las
hojas del mismo han sido firmadas por el testador en nuestra presencia . . ." The point
is well taken.
It seems obvious that the missing phrase was left out from the copy. The probabilities of
error in the copy are enhanced by the fact that the form of the Will was not controversy
in Toledo's appeal. The form of the will being immaterial, it is easily conceivable that
little or no care was employed in transcribing the document in the agreement or record
on appeal. The absence of the signature of the testator on the first page of the copy is
an additional proof that little or no pain taken to insure accuracy in the transcription. The
appearance of "la testadora" in the copy instead of "el testador" is another indication of
the haste and carelessness in the transcription.
Quite aside from all this, the testator was presumed to know the law, as the trial court
says. Certainly, Attorney Mariano Omaa, who drew the instrument and signed it as an
attesting witness, knew the law and, by the context thereof, has shown familiarity with
the rules of grammar and ability to express his idea properly. In the light of these
circumstances and of further fact that the clause was brief and, by its importance, must
have been written with utmost concern, so important an omission as to make the clause
or sentence senseless could not have been made, intentionally or otherwise, in the
original.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced
in the Record on appeal" is bound by the agreement. This is not an absolute rule. The
binding effect of a stipulation on the parties does not go to the extent of barring either of
them from impeaching it on the score of clerical error or clear mistake. The mistake just
pointed out clearly brings the case within the exceptions of the rule. The able counsel
for the proponent of the will could not possibly have subscribed to the agreement if they

had noticed the incomplete sentence in the copy without making an objection or
reservation.
The problem posed by the omission in question is governed, not by the law of wills
which requires certain formalities to be fulfilled in the execution, but by the rules of
construction applicable to statutes and documents in general. And this rule would obtain
whether the omission occurred in the original document or in the copy alone. In either
case, the court may and should correct the error by supplying the omitted word or
words.
In Testamentaria del finado Emiliano Alcala, a similar situation arose and the court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que
en su redaccion se ha incurrido en omisiones que la razon y el sentido cumon
pueden suplirlas sin altenar ni tergiversar la intencion tanto del testador como la
de los tres testigos que intervenieron en el otorgamiento de la misma. Teniendo
en cuenta la fraseologia de la segunda parte de la clausula se observara que las
omisiones, aunque son substanciales, consisten en meros errores gramaticales
que los tribunales, en el ejercicio de su discrecion y en la aplicacion de las reglas
de interpretacion de documentos, pueden subsanarlos para dar efectividad a la
intencion y hacer que el conjunto de los terminos de la clausula de atestacion
surtan efectos.
La interpretacion que se acaba de dar a la clausula de atestacion y la correccion
de los errores gramanticales de que misma adolece, incluyedo la insercion del
verbo "firmamos" que se omitio involuntariamente, esta de acurdo con las reglas
fundamentales de interpretacion de documentos segun las cuales se debe hacer
prevalecer siempre la intencion del que haya redactado el instrumento (art 286,
Cod. de Proc. Civil; Pecson contra Coronel, 45 Jur. Fil., 224; 28 R. C. L., sec.
187, pages. 225, 226).
La solucion que se acaba de dar al asunto es la que se halla mas conforme con
la justicia en vista de que no se ha presentado prueba alguna que insinue
siquiera que en el otorgamiento del testamiento se ha cometido dolo o fraude
con el animo de perjudicar a cualquiera. Testamentaria de Emiliano Alcala, 40
Gaz. Of., 14. Supplemento, No. 23, pags. 131, 132.)
From 69 C. J. 82, 83, we quote: "Words omitted from a will may be supplied by the court
whenever necessary to effectuate the testator's intention as expressed in the will: but
not where the effect of inserting the words in the will would alter or defeat such
intention, or change the meaning of words that are clear and unequivocal." On pages 50
and 51, the same work says: "To aid the court in ascertaining and giving effect to the
testator's intention in the case of an ambiguous will, certain rules been established for
guidance in the construction or interpretation to be placed upon such a will, and in
general a will should be construed according to these established rules of construction."
And referring to construction of statues which, as has been said, is applicable to

construction of documents, C. J. S., in Vol. 59, p. 992, tells us that "Where it appears
from the context that certain words have been inadvertently from a statute, the court
may supply such words as are necessary to complete the sense, and to express the
legislative intent."
Adding force to the above principle is the legal presumption that the will is in
accordance with law. (2 Page on Wills 840; 57 Am. Jur., 720.)
But let it be assumed, for the sake of this decision only, that the attestation clause was
drawn exactly as it was copied in Toledo's record on appeal, was the mistake fatal? Was
it, or was it not, cured by the testator's own declaration? to wit: "En testimonio de lo
cual, firmo este mi testamento y en el margen izquierdo de cada una de sus dos
paginas utiles con la clausula de atestiguamiento en presencia de los testigos, quienes
a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi
presencia cada uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia
27 de marzo de mil novecientos treinta y nueve." The answer is in the negative.
As early as 1922 a similar case, in which the validity of the will was sustained, found its
way into this court. See Aldaba vs. Roque, 43 Phil., 378. That case was more than
foursquare behind the case at bar. There the departure from the statutory formality was
more radical, in that the testator took charge of writing the entire attestation clause in
the body of the will, the witnesses limiting their role to signing the document below the
testator's signature. Here, at the most, the testator took away from the witnesses only a
small part of their assigned task, leaving to them the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous
decision in banc, through Mr. Justice Villamor said in the Adalba-Roque case (syllabus):
When the attestation clause is signed by the witnesses to the instruments, besides the
testator, such attestation clause is valid and constitutes a substantial compliance with
the provisions of section 1 of Act No. 2645, even though the facts recited in said
attestation clause appear to have been made by the testator himself.
That ruling should set the present case at rest unless we want to revert to the old,
expressly abandoned doctrine, in a long line of what we believe to be better-considered
decisions.
This court noted in Dichoso de Ticson vs. De Gorostiza (1922), 57 Phil., 437, "that there
have been noticeable in the Philippines two divergent tendencies in the lie of wills the
one being planted on strict construction and the other on liberal construction. A late
example of the former views be found in the decision in Rodriguez vs. Alcala (1930), 55
Phil., 150, sanctioning a literal enforcement of the law. The basic rule in the other
direction, predicated on reason, is Abangan vs. Abangan (1919), 40 Phil., 476, oft-cited
approvingly in later decisions."

In the Abangan case, a unanimous court, speaking through Mr. Justice Avancea, later
Chief Justice, observed:
"The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primodial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded."
Subsequent decisions which followed and adopted the Abangan principle were: Avera
vs. Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs.
Abella (1922), 43 Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs.
Vergel de Dios (1924), 46 Phil., 922; Neyve vs. Mojal (1924), 47 Phil., 152; De Gala vs.
Gonzales (1929), 53 Phil., 104; Rey vs. Cartagena (1931), 56 Phil., 282; Ticson vs.
Gorostiza (1932), 57 Phil., 437; Testamentaria de N. Ozoa (1933), 57 J. F., 1007;
Sebastian vs. Panganiban (1934), 59 Phil., 653; Rodriguez vs. Yap (1939), 40 Off. Gaz.,
1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939), 40 Off. Gaz., 1st Suppl., No. 3, p. 196;
Leynez vs. Leynez (1939), 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940),
40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941), 40 Off. Gaz.,
1844; Mendoza vs. Pilapil (1941), 40 Off. Gaz., 1855; Alcala vs. De Villa (1941), 40 Off.
Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948), 46 Off. Gaz., Suppl. No.
1, p. 211.
It is objected that "If we cure a deficiency by means of inferences, when are we going to
stop making inferences to supply fatal deficiencies in wills? Where are we to draw the
line?" These same question might well have been asked by the opponents of the new
trends in the cases above cited. But the so-called liberal rule 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
within 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.
The case at hand comes within the bounds thus defined if the witnesses here purposely
omitted or forgot to say that the testator signed the will in their presence, the testator
said that he did and the witnesses by their signatures in the will itself said it was so. No
extraneous proof was necessary and none was introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it was the thing
that led to unfortunate consequences. It was the realization of the injustice of the old

way that impelled this court, so we believe, to forsake the antiquated, outworn worship
of form in preference to substance. It has been said, and experience has shown, that
the mechanical system of construction has operated more to defeat honest wills than
prevent fraudulent ones. That, must be conceded, would be the effect in this case if the
will under consideration were rejected. For the adverse party now concedes the
genuineness of the document. At any rate, the genuineness is super obvious, and there
is not the slightest insinuation of undue pressure, mental incapacity of the testator, or
fraud.
It is said that for the testator to certify that he signed the will in the witnesses' presence
"would be like lifting one's self by his own bootstraps." The simile does not look to us
quite well placed. There is no impossibility or impropriety in one attesting to his own act
unless forbidden by rules of positive law. The rationale of this decision is that he is not.
If we were to make a metaphorical comparison, it would be more correct to say that a
man can and generally does himself pull the bootstraps when he puts his boots on.
Coming to execution of wills, we see no legitimate, practical reason for objecting to the
testator instead of the witnesses certifying that he signed the will in the presence of the
latter. The will is of the testator's own making, the intervention of attesting witnesses
being designed merely to protect his interest. If the sole purpose of the statute in
requiring the intervention of witnesses is to make it certain that the testator has definite
and complete intention to pass his property, and to prevent, as far as possible, any
chance of substituting one instrument for another (1 Page on Wills, 481), what better
guaranty of the genuineness of the will can there be than a certification by the testator
himself in the body of the will so long as the testator's signature is duly authenticated?
Witnesses may sabotage the will by muddling and bungling it or the attestation clause.
For the testator, who is desirous of making a valid will, to do so would be a
contradiction. If the formalities are only a means to an end and not the end themselves,
and that end is achieved by another method slightly from the prescribed manner, what
has been done by the testator and the witnesses in the execution of the instant will
should satisfy both law and conscience.
A second ground of attack on the questioned will is that the first page or sheet thereof
does not bear the testator's signature. The discussion on the correctness of the copy of
the attestation clause amply answers this objection in fact, the appellee's case is much
stronger on this point for the reason that there is not only speculative but also positive
basis for the conclusion that the testator's signature was affixed to the first page of the
original. Both the testator and the attesting witnesses stated in the will and in the
attestation clause, respectively, that the former signed both pages or sheets of the
testament.
Upon the foregoing consideration, the order of the probate court is affirmed with costs.
A motion dated February 17, 1953, was filed after the motion for reconsideration was
deliberated and voted upon, in behalf of the minor children of Carlos Worrel, who was a
residuary legatee under the will and who is alleged to have died on February 6, 1949.

The motion prays that a guardian ad litem be appointed for the said children, and
allowed to intervene and file "A Supplementary Memorandum in Support of Appellant's
(Appellee's?) Motion for reconsideration." Counsel for the appellant objects to the
motion on the ground that the movants having only a contingent interest under the will
are not of right entitled to intervene.
As this case has already been considerably delayed and thoroughly considered and
discussed from all angles, it is the sense of the court that the children's intervention with
the consequent further delay of the decision would not serve the best interest of the
parties. For this reason, the motion is denied.
Paras, Feria, Montemayor, Bautista Angelo and Labrador, JJ., concur.
Padilla and Reyes, JJ., dissent.

JUGO, PABLO and BENGZON, JJ., dissenting:

I dissent on the ground set forth in my opinion rendered in this case.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA,
respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court 1 involving the probate of
the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on
November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In
our said decision, we upheld the appointment of Nenita Alonte as co-special
administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico
G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the
probate court to sell certain shares of stock and real properties belonging to the estate
to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests,
which he claimed were personal funds. As found by the Court of Appeals, 2 the alleged
advances consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as
deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug,
he withdrew the sums of P518,834.27 and P90,749.99 from savings account No.
35342-038 of the Bank of America, Makati, Metro Manila.

On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the
same funds withdrawn from savings account No. 35342-038 were conjugal partnership
properties and part of the estate, and hence, there was allegedly no ground for
reimbursement. She also sought his ouster for failure to include the sums in question for
inventory and for "concealment of funds belonging to the estate." 4
Vitug insists that the said funds are his exclusive property having acquired the same
through a survivorship agreement executed with his late wife and the bank on June 19,
1970. The agreement provides:
We hereby agree with each other and with the BANK OF AMERICAN
NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to
as the BANK), that all money now or hereafter deposited by us or any or
either of us with the BANK in our joint savings current account shall be the
property of all or both of us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime, and after the death
of either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or check
of either, any or all of us during our lifetime, or the receipt or check of the
survivor or survivors, for any payment or withdrawal made for our abovementioned account shall be valid and sufficient release and discharge of
the BANK for such payment or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and granted "the motion to sell
some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the
personal funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein
private respondent, held that the above-quoted survivorship agreement constitutes a
conveyance mortis causa which "did not comply with the formalities of a valid will as
prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere
donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the
Civil Code. 9
The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated November 26, 1985
(Annex II, petition) is hereby set aside insofar as it granted private

respondent's motion to sell certain properties of the estate of Dolores L.

Vitug for reimbursement of his alleged advances to the estate, but the
same order is sustained in all other respects. In addition, respondent
Judge is directed to include provisionally the deposits in Savings Account
No. 35342-038 with the Bank of America, Makati, in the inventory of actual
properties possessed by the spouses at the time of the decedent's death.
With costs against private respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the
strength of our decisions in Rivera v. People's Bank and Trust Co. 11 and Macam v.
Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and
considering them as aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should be
embodied in a will. A will has been defined as "a personal, solemn, revocable and free
act by which a capacitated person disposes of his property and rights and declares or
complies with duties to take effect after his death." 14 In other words, the bequest or
device must pertain to the testator. 15 In this case, the monies subject of savings
account No. 35342-038 were in the nature of conjugal funds In the case relied on,
Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship
agreement purports to deliver one party's separate properties in favor of the other, but
simply, their joint holdings:
xxx xxx xxx
... Such conclusion is evidently predicated on the assumption that
Stephenson was the exclusive owner of the funds-deposited in the bank,
which assumption was in turn based on the facts (1) that the account was
originally opened in the name of Stephenson alone and (2) that Ana
Rivera "served only as housemaid of the deceased." But it not infrequently
happens that a person deposits money in the bank in the name of another;
and in the instant case it also appears that Ana Rivera served her master
for about nineteen years without actually receiving her salary from him.
The fact that subsequently Stephenson transferred the account to the
name of himself and/or Ana Rivera and executed with the latter the
survivorship agreement in question although there was no relation of
kinship between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the bank
account. In the absence, then, of clear proof to the contrary, we must give

full faith and credit to the certificate of deposit which recites in effect that
the funds in question belonged to Edgar Stephenson and Ana Rivera; that
they were joint (and several) owners thereof; and that either of them could
withdraw any part or the whole of said account during the lifetime of both,
and the balance, if any, upon the death of either, belonged to the survivor.
17

xxx xxx xxx

In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract whereby,
according to article 1790 of the Civil Code, one of the parties or both
reciprocally bind themselves to give or do something as an equivalent for
that which the other party is to give or do in case of the occurrence of an
event which is uncertain or will happen at an indeterminate time. As
already stated, Leonarda was the owner of the house and Juana of the
Buick automobile and most of the furniture. By virtue of Exhibit C, Juana
would become the owner of the house in case Leonarda died first, and
Leonarda would become the owner of the automobile and the furniture if
Juana were to die first. In this manner Leonarda and Juana reciprocally
assigned their respective property to one another conditioned upon who
might die first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This contract,
as any other contract, is binding upon the parties thereto. Inasmuch as
Leonarda had died before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as Leonarda would have
acquired the ownership of the automobile and of the furniture if Juana had
died first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged to one party, and hence it must
be presumed to be conjugal, having been acquired during the existence of the marita.
relations. 20
Neither is the survivorship agreement a donation inter vivos, for obvious reasons,
because it was to take effect after the death of one party. Secondly, it is not a donation

between the spouses because it involved no conveyance of a spouse's own properties

to the other.
It is also our opinion that the agreement involves no modification petition of the conjugal
partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no
"cloak" 23 to circumvent the law on conjugal property relations. Certainly, the spouses
are not prohibited by law to invest conjugal property, say, by way of a joint and several
bank account, more commonly denominated in banking parlance as an "and/or"
account. In the case at bar, when the spouses Vitug opened savings account No.
35342-038, they merely put what rightfully belonged to them in a money-making
venture. They did not dispose of it in favor of the other, which would have arguably been
sanctionable as a prohibited donation. And since the funds were conjugal, it can not be
said that one spouse could have pressured the other in placing his or her deposits in the
money pool.
The validity of the contract seems debatable by reason of its "survivor-take-all" feature,
but in reality, that contract imposed a mere obligation with a term, the term being death.
Such agreements are permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both reciprocally
bind themselves to give or to do something in consideration of what the
other shall give or do upon the happening of an event which is uncertain,
or which is to occur at an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract depends on
either the happening of an event which is (1) "uncertain," (2) "which is to occur at an
indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance have been held to fall
under the first category, while a contract for life annuity or pension under Article 2021, et
sequentia, has been categorized under the second. 25 In either case, the element of risk
is present. In the case at bar, the risk was the death of one party and survivorship of the
other.
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se not contrary to law its
operation or effect may be violative of the law. For instance, if it be shown

in a given case that such agreement is a mere cloak to hide an inofficious

donation, to transfer property in fraud of creditors, or to defeat the legitime
of a forced heir, it may be assailed and annulled upon such grounds. No
such vice has been imputed and established against the agreement
involved in this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement had been executed for
such unlawful purposes, or, as held by the respondent court, in order to frustrate our
laws on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her
husband, the latter has acquired upon her death a vested right over the amounts under
savings account No. 35342-038 of the Bank of America. Insofar as the respondent court
ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the
court was in error. Being the separate property of petitioner, it forms no more part of the
estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987,
and its resolution, dated February 9, 1988, are SET ASIDE.
No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10907

June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner.

Venancio H. Aquino for respondents.
CONCEPCION, J.:
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon.
Primitivo L. Gonzales, as Judge of the Court of First Instance of Cavite, in connection
with Special Proceedings No. 5213 of said court, entitled "Testate Estate of the
Deceased Gabina Raquel."
On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the
probate of a document purporting to be the last will and testament of her aunt, Gabina
Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire
estate of the deceased except the properties bequeathed to her other niece and
nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and
Rafael Matias is, pursuant to said instrument, Aurea Matias, likewise, appointed
therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased,
opposed the probate of her alleged will, and, after appropriate proceedings, the court,
presided over by respondent Judge, issued an order, dated February 8, 1956,
sustaining said opposition and denying the petition for probate. Subsequently, Aurea
Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now
pending decision.
Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio
Rodriguez, as special administrator of the estate of the deceased, and the appointment,
in his stead of Ramon Plata. The motion was set for hearing on February 23, 1956, on
which date the court postponed the hearing to February 27, 1956. Although notified of
this order, Rodriguez did not appear on the date last mentioned. Instead, he filed an
urgent motion praying for additional time within which to answer the charges preferred
against him by Basilia Salud and for another postponement of said hearing. This motion
was not granted, and Basilia Salud introduced evidence in support of said charges,
whereupon respondent Judge by an order, dated February 27, 1956, found Rodriguez
guilty of abuse of authority and gross negligence, and, accordingly, relieved him as
special administrator of the estate of the deceased and appointed Basilia Salud as
special administratrix thereof, to "be assisted and advised by her niece, Miss Victorina
Salud," who "shall always act as aide, interpreter and adviser of Basilia Salud." Said
order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . . . who
is hereby appointed as co-administrator."
On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set
aside and that she be appointed special co-administratrix, jointly with Horacio

Rodriguez, upon the ground that Basilia Salud is over eighty (80) years of age, totally
blind and physically incapacitated to perform the duties of said office, and that said
movant is the universal heiress of the deceased and the person appointed by the latter
as executrix of her alleged will. This motion was denied in an order dated March 10,
1956, which maintained "the appointment of the three above named persons" Basilia
Salud, Ramon Plata and Victorina Salud "for the management of the estate of the
late Gabina Raquel pending final decision on the probate of the alleged will of said
decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as
special administratrix by reason of physical disability, due to old age, and recommended
the appointment, in her place, of Victorina Salud. Before any action could be taken
thereon, or on March 21, 1956, Aurea Matias sought a reconsideration of said order of
March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said
resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina Salud,
on account of her antagonism to said Aurea Matias she (Victorina Salud) having
been the principal and most interested witness for the opposition to the probate of the
alleged will of the deceased and proposed that the administration of her estate be
entrusted to the Philippine National Bank, the Monte de Piedad, the Bank of the
Philippine Islands, or any other similar institution authorized by law therefor, should the
court be reluctant to appoint the movant as special administratrix of said estate. This
motion for reconsideration was denied on March 26, 1956.
Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud
requested authority to collect the rents due, or which may be due, to the estate of the
deceased and to collect all the produce of her lands, which was granted on June 23,
1956. On June 27, 1956, said respondents filed another motion praying for permission
to sell the palay of the deceased then deposited in different rice mills in the province of
Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10,
1956, petitioner instituted the present action against Judge Gonzales, and Victorina
Salud and Ramon Plata, for the purpose of annulling the above mentioned orders of
respondent Judge, upon the ground that the same had been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
In support of this pretense, it is argued that petitioner should have preference in the
choice of special administratrix of the estate of the decedent, she (petitioner) being the
universal heiress to said estate and, the executrix appointed in the alleged will of the
deceased, that until its final disallowance which has not, as yet, taken place she has
a special interest in said estate, which must be protected by giving representation
thereto in the management of said estate; that, apart from denying her any such
representation, the management was given to persons partial to her main opponent,
namely, Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a
very close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made

special administratrix despite her obvious unfitness for said office, she being over eighty
(80) years of age and blind; that said disability is borne out by the fact that on March 17,
1956, Basilia Salud resigned as special administratrix upon such ground; that the Rules
of Court do not permit the appointment of more than one special administrator; that
Horacio Rodriguez was removed without giving petitioner a chance to be heard in
connection therewith; and that Ramon Plata and Victorina Salud were authorized to
collect the rents due to the deceased and the produce of her lands, as well to sell her
palay, without previous notice to the petitioner herein.
Upon the other hand, respondents maintain that respondent Judge acted with the scope
of his jurisdiction and without any abuse of discretion; that petitioner can not validly
claim any special interest in the estate of the deceased, because the probate of the
alleged will and testament of the latter upon which petitioner relies has been
denied; that Horacio Rodriguez was duly notified of the proceedings for his removal;
and that Victorina Salud and Ramon Plata have not done anything that would warrant
their removal.
Upon a review of the record, we find ourselves unable to sanction fully the acts of
respondent Judge, for the following reasons:
1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal,
dated February 17, 1956, the record shows that petitioner herein received copy of said
motion of February 24, 1956, or the date after that set for the hearing thereof. Again,
notice of the order of respondent Judge, dated February 23, 1956, postponing said
hearing to February 27, 1956, was not served on petitioner herein.
2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio
Rodriguez, and the appointment of Ramon Plata, as special administrator of said estate.
Petitioner had, therefore, no notice that her main opponent, Basilia Salud, and the
latter's principal witness, Victorina Salud, would be considered for the management of
said. As a consequence, said petitioner had no opportunity to object to the appointment
of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and
adviser, and the order of February 27, 1956, to this effect, denied due process to said
petitioner.
3. Said order was issued with evident knowledge of the physical disability of Basilia
Salud. Otherwise respondent Judge would not have directed that she "be assisted and
advised by her niece Victorina Salud," and that the latter "shall always act as aide,
interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators

Basilia Salud, Victorina Salud and Ramon Plata. Indeed, in the order of March 10, 1956,
respondent Judge maintained "the appointment of the three (3) above-named persons
for the management of the estate of the late Gabina Raquel."
5. Soon after the institution of said Special Proceedings No. 5213, an issue arose
between Aurea Matias and Basilia Salud regarding the person to be appointed special
administrator of the estate of the deceased. The former proposed Horacio Rodriguez,
whereas the latter urged the appointment of Victorina Salud. By an order dated August
11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the
matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground that,
unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital,
resides In the City of Manila, the former, a practicing lawyer and a former public
prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words,
the order of resident thereof. In other words, the order of respondent Judge of February
27, 1956, removing Rodriguez and appointing Victorina Salud to the management of the
estate, amounted to a reversal of the aforementioned order of Judge Bernabe of August
11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel was denied
by respondent Judge, the order to this effect is not, as yet, final and executory. It is
pending review on appeal taken by Aurea Matias. The probate of said alleged will being
still within realm of legal possibility, Aurea Matias has as the universal heir and
executrix designated in said instrument a special interest to protect during the
pendency of said appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058),
this Court held that a widow, designated as executrix in the alleged will and testament of
her deceased husband, the probate of which had denied in an order pending appeal,
"has . . . the same beneficial interest after the decision of the court disapproving the will,
which is now pending appeal, because the decision is not yet final and may be reversed
by the appellate court."
7. The record shows that there are, at least two (2) factions among the heirs of the
deceased, namely, one, represented by the petitioner, and another, to which Basilia
Salud and Victorina Salud belong. Inasmuch as the lower court had deemed it best to
appoint more than one special administrator, justice and equity demands that both
factions be represented in the management of the estate of the deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special
administrator may be appointed to administrator temporarily" the estate of the
deceased, must be considered in the light of the facts obtaining in said case. The lower
court appointed therein one special administrator for some properties forming part of

said estate, and a special administratrix for other properties thereof. Thus, there were
two (2) separate and independent special administrators. In the case at bar there is only
one (1) special administration, the powers of which shall be exercised jointly by two
special co-administrators. In short, the Roxas case is not squarely in point. Moreover,
there are authorities in support of the power of courts to appoint several special coadministrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re
Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby annulled and set aside. The lower
court should re-hear the matter of removal of Horacio Rodriguez and appointment of
special administrators, after due notice to all parties concerned, for action in conformity
with the views expressed herein, with costs against respondents Victorina Salud and
Ramon Plata. It is so ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador,
Reyes, J.B.L. and Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6285

February 15, 1912

PEDRO BARUT, petitioner-appellant,

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

The probate of the will was contested and opposed by a number of the relatives of the
deceased on various grounds, among them that a later will had been executed by the
deceased. The will referred to as being a later will is the one involved in case No. 6284
already referred to. Proceeding for the probate of this later will were pending at the time.
The evidence of the proponents and of the opponents was taken by the court in both
cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not entitled to
probate upon the sole ground that the handwriting of the person who it is alleged signed
the name of the testatrix to the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will than that of the person whose
handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing
thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all
the witnesses to the will that the signature of the testatrix was written by Severo Agayan
at her request and in her presence and in the presence of all the witnesses to the will. It
is immaterial who writes the name of the testatrix provided it is written at her request
and in her presence and in the presence of all the witnesses to the execution of the will.
The court seems , by inference at least, to have had in mind that under the law relating
to the execution of a will it is necessary that the person who signs the name of the
testatrix must afterwards sign his own name; and that, in view of the fact that, in the
case at bar, the name signed below that of the testatrix as the person who signed her
name, being, from its appearance, not the same handwriting as that constituting the
name of the testatrix, the will is accordingly invalid, such fact indicating that the person
who signed the name of the testatrix failed to sign his own. We do not believe that this
contention can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:
No will, except as provided in the preceding section, shall be valid to pass any
estate, real or personal, nor charge or effect the same, unless it be in writing and
signed by the testator, or by the testator's name written by some other person in
his presence, and by his expenses direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of each. . . .
This is the important part of the section under the terms of which the court holds that the
person who signs the name of the testator for him must also sign his own name The
remainder of the section reads:
The attestation shall state the fact that the testator signed the will, or caused it to
be signed by some other person, at his express direction, in the presence of
three witnesses, and that they attested and subscribed it in his presence and in
the presence of each other. But the absence of such form of attestation shall not
render the will invalid if it is proven that the will was in fact signed and attested as
in this section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or
not. The important thing is that it clearly appears that the name of the testatrix was
signed at her express direction in the presence of three witnesses and that they attested
and subscribed it in her presence and in the presence of each other. That is all the
statute requires. It may be wise as a practical matter that the one who signs the
testator's name signs also his own; but that it is not essential to the validity of the will.
Whether one parson or another signed the name of the testatrix in this case is
absolutely unimportant so far as the validity of her will is concerned. The plain wording
of the statute shows that the requirement laid down by the trial court, if it did lay down, is
absolutely unnecessary under the law; and the reasons underlying the provisions of the
statute relating to the execution of wills do not in any sense require such a provision.
From the standpoint of language it is an impossibility to draw from the words of the law
the inference that the persons who signs the name of the testator must sign his own
name also. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person
who is unable to write may be signed by another by express direction to any instrument
known to the law. There is no necessity whatever, so far as the validity of the instrument
is concerned, for the person who writes the name of the principal in the document to
sign his own name also. As a matter of policy it may be wise that he do so inasmuch as
it would give such intimation as would enable a person proving the document to
demonstrate more readily the execution by the principal. But as a matter of essential
validity of the document, it is unnecessary. The main thing to be established in the
execution of the will is the signature of the testator. If that signature is proved, whether it
be written by himself or by another at his request, it is none the less valid, and the fact
of such signature can be proved as perfectly and as completely when the person
signing for the principal omits to sign his own name as it can when he actually signs. To
hold a will invalid for the lack of the signature of the person signing the name of the
principal is, in the particular case, a complete abrogation of the law of wills, as it rejects
and destroys a will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine
which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas (4 Phil. Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not
one of these cases is in point. The headnote in the case last above stated gives an
indication of what all of cases are and the question involved in each one of them. It
says:
The testatrix was not able to sign it for her. Instead of writing her name he wrote
his own upon the will. Held, That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them was a case in
which the person who signed the will for the testator wrote his own name to the will
instead of writing that of the testator, so that the testator's name nowhere appeared

attached to the will as the one who executed it. The case of Ex parte Arcenas contains
the following paragraph:
Where a testator does not know, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner: "John Doe, by the testator,
Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this
must be written by the witness signing at the request of the testator.
The only question for decision in that case, as we have before stated, was presented by
the fact that the person who was authorized to sign the name of the testator to the will
actually failed to sign such name but instead signed his own thereto. The decision in
that case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this case
have set forth no reason whatever why the will involved in the present litigation should
not be probated. The due and legal execution of the will by the testatrix is clearly
established by the proofs in this case. Upon the facts, therefore, the will must be
probated. As to the defense of a subsequent will, that is resolved in case No. 6284 of
which we have already spoken. We there held that said later will not the will of the
deceased.
The judgment of the probate court must be and is hereby reversed and that court is
directed to enter an order in the usual form probating the will involved in this litigation
and to proceed with such probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.

Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of Civil Procedure
does not expressly require that, when the testator or testatrix is unable or does not
know how to sign, the person who, in the presence and under the express direction of
either of them, writes in the name of the said testator or testatrix must also sign his own
name thereto, it being sufficient for the validity of the will that the said person so
requested to sign the testator or testatrix write the name of either in his own
handwriting.
Since this court began to decide cases with regard to the form, conditions and validity of
wills executed in accordance with the provisions of the Code of Civil Procedure, never
has the specific point just above mentioned been brought into question. Now for the first
time is affirmed in the majority opinion, written by the learned and distinguished Hon.
Justice Moreland, that, not being required by the said code, the signature of the name of

the person who, at the request of the testator or testatrix, writes the name of either of
the latter to the will executed, is not necessary.
Various and considerable in number have been the decisions rendered by this court in
which, as will be seen further on, upon applying the said section 618 of Code of Civil
Procedure and requiring its observance in cases where the testator or testatrix is unable
or does not know how to sign his or her name, expressly prescribed the practical
method of complying with the provisions of the law on the subject. Among these
decisions several were written by various justices of this court, some of whom are no
longer on this bench, as they have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the
probate of a will, reads as follows:
Wills, authentication of . Where a will is not signed by a testator but by some
other person in his presence and by his direction, such other person should affix
the name of the testator thereto, and it is not sufficient that he sign his own name
for and instead of the name of the testator.
Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the
probate of a will, states:
1. Wills, requisites of; Civil Code, article repealed. Article 695 of the Civil
Procedure; consequently where a testator is unable to sign his name, the person
signing at his request must write at the bottom of the will the full name of the
testator in the latter's presence, and by his express direction, and then sign his
own name in full.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the
following statements appear:
Wills; inability to sign; signature by another. The testatrix was not able to sign
her name to the will, and she requested another person to sign it for her. Held,
That the will was not duly executed. (Following Ex parte Arcenas et al., No. 1708,
August 24, 1905; Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte
Santiago, No. 2002, August 18, 1905.)
The following syllabus precedes decision No. 3907: 4
Execution of wills. Where it appears in a will that the testator has stated that
by reason of his inability to sign his name he requested one of the three
witnesses present to do so, and that as a matter of fact, the said witness wrote
the name and surname of the testator who, stating that the instrument executed
by him contained his last will, put the sign of the cross between his said name
and surname, all of which details are set forth in a note which the witnesses

forthwith subscribed in the presence of the testator and of each other, said will
may be probated.
When the essential requisites of section 618 of the Code of Civil Procedure for
the execution and validity of a will have been complied with, the fact that the
witness who was requested to sign the name of the testator, omitted to state the
words 'by request of .......... the testator,' when writing with his own hand the
name and surname of the said testator, and the fact that said witness subscribed
his name together with the other witnesses and not below the name of the
testator, does not constitute a defect nor invalidate the said will.
The following statement appears in the syllabus of case No. 4132, in the matter of the
will of Maria Siason:5
The recital of the name of the testator as written below the will at his request
serves as a signature by a third person.
Moreover among the grounds given as a basis for this same decision, the following
appears:
In sustaining this form of signature, this court does not intend to qualify the
decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above
quoted, or in Abaya vs. Zalamero. In the Arcenas case the court pointed out the
correct formula for a signature which ought to be followed, but did not mean to
exclude any other for substantially equivalent.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:
The testatrix was unable to sign her will with her own hand and requested
another person to sign for her in her presence. This the latter did, first writing the
name of the testatrix and signing his own name below: Held, That the signature
of the testatrix so affixed is sufficient and a will thus executed is admissible to
probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 51497 sets forth that:
The legality of a will is not affected by the insertion, supposed to have been made
subsequently, of another name before that of the testator when such name may be
treated as nonexistent without affecting its validity.
Among the conclusions contained in this last decision the following is found:
Although the said words "For Simplicia de los Santos" be considered as inserted
subsequently, which we neither affirm nor deny, because a specific determination
either way is unnecessary, in our opinion the signature for the testatrix placed
outside of the body of the will contains the name of the testatrix as if she signed

the will, and also the signature of the witness who, at her request, wrote the
name of the testatrix and signed for her, affirming the truth of this fact, attested by
the other witnesses then present. And this fully complies with the provisions of
section 618 of the Act.
It is true that in none of the decisions above quoted was the rule established that the
person who, at the request of the testator or testatrix, signed the latter's or the former's
name and surname to the will must affix his own signature; but it no less true that, in
prescribing the method in which the provisions of the said section 618 to be complied
with, it was stated that, in order that a will so executed might be admitted to probate, it
was an indispensable requisite that the person requested to sign in place of the testator
or testatrix, should write the latter's or the former's name and surname at the foot of the
will in the presence and under the direction of either, as the case might be, and should
afterwards sign the instrument with his own name and surname.
The statement that the person who writes the name and surname of the testator or
testatrix at the foot of the will should likewise affix his own signature thereto, name and
surname, though it be considered to be neither a rule nor a requisite necessary to follow
for the admission of the will to probate, yet it is unquestionable that, in inserting this last
above-mentioned detail in the aforesaid decisions, it was deemed to be a complement
and integral part of the required conditions for the fulfillment of the provisions of the law.
It is undisputable that the latter does not require the said subscription and signature of
the person requested to affix to the will the name of the testator or testatrix who is not
able to sign; but by stating in the decisions hereinabove quoted that the name and
surname of the said person should be affixed by him, no act prohibited by law was
recommended or suggested, nor may such a detail be understood to be contrary or
opposed to the plain provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even prudent to
require that the person requested to write the name of the testator or testatrix in the will
also sign the instrument with his own name and surname. This statement induces us to
believe that, in behalf of the inhabitants of this country and for sake of an upright
administration of justice, it should be maintained that such a signature must appear in
the will, since no harm could accrue to anyone thereby and, on the contrary, it would
serve as a guarantee of the certainty of the act performed and also might eliminate
some possible cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the complete repeal
of article 695 of the Civil Code and, while he conceded that, in the examination and
qualification of a will for the purpose of its probate, one has but to abide by the
provisions of said section 618 of the Code of Civil Procedure, the sole law applicable in
the matter, yet, perhaps imbued with the strongly impelled by a traditional conception of
the laws which he has known since youth, relative to the form of execution of
testaments, he believed it to be a vary natural and common sense requisite that the
signature, with his own name and surname, of the person requested to write in the will

the name and surname of the testator or testatrix should form a part of the provisions of
the aforementioned section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of
the person before referred to a requisite deemed to be convenient and prudent in the
majority opinion formed a part of the provisions of the law, since the latter contains
nothing that prohibits it. The aforementioned different decisions were drawn up in the
form in which they appear, and signed without dissent by all the justices of the court on
various dates. None of them hesitated to sign the decisions, notwithstanding that it was
expressly held therein that the person above mentioned should, besides writing in the
will the name and surname of the testator or testatrix, also sign the said instrument with
his own name and surname.
Without being understood to criticize the provision contained in the said section 618 of
the Code of Civil Procedure it will not be superfluous to mention that the system
adopted in this section is the same as was in vogue under the former laws that
governed in these Islands, with respect to witnesses who were not able or did not know
how to sign their testimony given in criminal or civil cases, in which event any person at
all might write the name and surname of the witness who was unable or did not know
how to sign, at the foot of his deposition, where a cross was then drawn, and, this done,
it was considered that the instrument had been signed by the witness, though it is true
that all these formalities were performed before the judge and the clerk or secretary of
the court, which thereupon certified that such procedure was had in accordance with the
law.
The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure,
the person who writes the name and surname of the testator or testatrix does so by the
order and express direction of the one or of the other, and this fact must be recorded in
the will; but in the matter of the signature of a deposition, the witness, who could not or
did not know how to sign, did not need to designate anyone to write the deponent's
name and surname, and in practice the witness merely made a cross beside his name
and surname, written by whomever it be.
With regard to the execution of wills in accordance with the provisions of previous
statutes, among them those of the Civil Code, the person or witness requested by the
testator or testatrix who was not able or did not know how to sign, authenticated the will
by signing it with his own name and surname, preceded by the words "at the request of
the testator or testatrix." Paragraph 2 of article 695 of the Civil Code contains the
following provisions bearing on the subject:
Should the testator declare that he does not know how, or is not able to sign, one
of the attesting witnesses or another person shall do so for him at his request,
the notary certifying thereto. This shall be done if any one of the witnesses can
not sign.

So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure
prescribed by the old laws with respect to the signing of a will by a testator or testatrix
who did not know how or who could not sign, consisted in that the person appointed and
requested by the testator or testatrix to sign in his or her stead, such fact being recorded
in the will, merely affixed at the bottom of the will and after the words "at the request of
the testator," his own name, surname and paragraph.
It is not at all strange that the attorneys of this country, imbued with and inspired by
these legal provisions, which it may said, are traditional to them in the ideas they have
formed of the existing laws in the matter of procedure in compliance therewith as
regards the execution and signing of a will, should have believed that, after the name
and surname of the testator or testatrix had been written at the foot of the will, the
person who signed the instrument in the manner mentioned should likewise sign the
same with his own name and surname.
If in various decisions it has been indicated that the person who, under the express
direction of the testator or testatrix, wrote the latter's or the former's name and surname,
should also sign the will with his own name and surname, and since this suggestion is
not opposed or contrary to the law, the undersigned is of opinion that it ought not to be
modified or amended, but that, on the contrary, it should be maintained as a requisite
established by the jurisprudence of this court, inasmuch as such a requisite is not
contrary to law, to public order, or to good custom, is in consonance with a tradition of
this country, does not prejudice the testator nor those interested in an inheritance, and,
on the contrary, constitutes another guarantee of the truth and authenticity of the letters
with which the name and surname of the testator of testatrix are written, in accordance
with his or her desire as expressed in the will.
Even though the requisites referred to were not recognized in jurisprudence and were
unsupported by any legal doctrine whatever, yet, since it is in harmony with the juridical
usages and customs observed in this country, it ought, in the humble opinion of the
writer, to be maintained for the benefit of the inhabitants of the Islands and for the sake
of a good administration of justice, because it is not a question of a dangerous
innovation or of one prejudicial to the public good, but a matter of the observance of a
convenient, if not a necessary detail, introduced by the jurisprudence of the courts and
which in the present case has filed a vacancy left by the positive written law.
The foregoing considerations, which perhaps have not the support of better premises,
but in the opinion of the undersigned, are conducive to the realization of the purposes of
justice, have impelled him to believe that the proposition should be enforced that the
witness requested or invited by the testator or testatrix to write his or her name to the
will, should also subscribed the instrument by signing thereto his own name and
surname; and therefore, with the proper finding in this sense, and reversal of the
judgment appealed from, that the court below should be ordered to proceed with the
probate of the will of the decedent, Maria Salomon, in accordance with the law.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
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 of all manner of fraud, substitution, and the like,
and would defeat the purpose for which this particular condition is prescribed in the
code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with
costs of this instance against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF
DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte,
(Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of
Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of
the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada,
Petitioner", which denied the probate of the will, the motion for reconsideration and the
motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the CebuanoVisayan dialect, the will consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3) instrumental witnesses. The second
page which contains the attestation clause and the acknowledgment is signed at the
end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also required to submit the names of
the intestate heirs with their corresponding addresses so that they could be properly
notified and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation
and/or motion, ex parte praying for a thirty-day period within which to deliberate on any
step to be taken as a result of the disallowance of the will. He also asked that the tenday period required by the court to submit the names of intestate heirs with their
addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the
will. However, the motion together with the previous manifestation and/or motion could
not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding judge of the
respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In the same order of denial, the motion for
the appointment of special administrator was likewise denied because of the petitioner's
failure to comply with the order requiring him to submit the names of' the intestate heirs
and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that
the testatrix and all the three instrumental and attesting witnesses sign at the end of the
will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the lacier
witnesses and signed the will and the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an
the three subscribing witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another because the attesting witnesses to a will

attest not merely the will itself but also the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is found, at the left hand margin
of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic validity
of the wig that the signatures of the subscribing witnesses should be specifically located
at the end of the wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the space or
particular location where the signatures are to be found as long as this space or
particular location wherein the signatures are found is consistent with good faith and the
honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed
at its end by the testator himself or by the testator's name written by another 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.
It must be noted that the law uses the terms attested and subscribed 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. (Ragsdale v.
Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that
the will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the
will attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from
the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective

permeating the provisions on the law on wills in this project consists in the liberalization
of the manner of their execution with the end in view of giving the testator more freedom
in expressing his last wishes 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 in respect to the
formalities in the execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not
for the defect in the place of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present
case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire wig that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at the bottom while
the instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages
including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation clause
must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause shall
state the number of pages or sheets upon which the win is written, which
requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of
the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L.
Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata,

54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi
of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of invalidating the will if
the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is
different. While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of the body
of the will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator
from being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar
liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact
that the testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness
over whose conduct she had no control where the purpose of the law to
guarantee the Identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the fun observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the
will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent
court which denied the probate of tile will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special administrator are set aside. The
respondent court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.
SO ORDERED.