Art.

805
Enriquez v. Abadia, 95 Phil 627
re: Will and Testament of the deceased REVEREND SANCHO ABADIA. SEVERINA A.
VDA. DE ENRIQUEZ, ET AL., Petitioners-Appellees, v. MIGUEL ABADIA, ET AL.,
Oppositors-Appellants.

Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula, for

Appellants.

C. de la Victoria, for Appellees.

SYLLABUS

1. WILLS; PROBATE OF WILL; VALIDITY OF WILLS AS TO FORM DEPENDS UPON LAW

IN FORCE AT TIME OF EXECUTION; TITLE OF EXECUTION. The validity of a will as
to form is to be judged not by the law in force at the time of the testators death or
at the time the supposed will is presented in court for probate or when the petition
is decided by the court but at the time the instrument was executed. One reason in
support of the rule is that although the will operates upon and after the death of
testator, the wishes of the testator about the disposition of his estate among his
heirs and among the legatees is given solemn expression at the time the will is
executed, and in reality, the legacy or bequest then becomes a completed act.

2. ID.; EXECUTION OF WILLS; LAW SUBSEQUENTLY PASSED ADDING NEW

REQUIREMENTS AS TO EXECUTION OF WILLS; FAILURE TO OBSERVE FORMAL
REQUIREMENTS AT TIME OF EXECUTION INVALIDATES WILLS; HEIRS INHERIT BY
INTESTATE SUCCESSION; LEGISLATURE CAN NOT VALIDATE VOID WILLS. From the
day of the death of the testator, if he leaves a will, the title of the legatees and
devisees under it becomes a vested right, protected under the due process clause
of the Constitution against a subsequent change in the statute adding new legal
requirements of execution of will, which would invalidate such a will. By parity of
reasoning, when one executes a will which is invalid for failure to observe and follow
the legal requirements at the time of its execution then upon his death he should be
regarded and declared as having died intestate, and his heirs will then inherit by
intestate succession, and no subsequent law with more liberal requirements or
which dispenses with such requirements as to execution should be allowed to

validate a defective will and thereby divest the heirs of their vested rights in the
estate by intestate succession. The general rule is that the Legislature can not
validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

DECISION

MONTEMAYOR, J.:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu,

executed a document purporting to be his Last Will and Testament now marked
Exhibit "A." Resident of the City of Cebu, he died on January 14, 1943, in the
municipality of Aloguinsan, Cebu, where he was an evacue. He left properties
estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the
legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of
Cebu. Some cousins and nephews who would inherit the estate of the deceased if
he left no will, filed opposition.

During the hearing one of the attesting witnesses, the other two being dead,
testified without contradiction that in his presence and in the presence of his cowitnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the
testator spoke and understood; that he (testator) signed on he left hand margin of
the front page of each of the three folios or sheets of which the document is
composed, and numbered the same with Arabic numerals, and finally signed his
name at the end of his writing at the last page, all this, in the presence of the three
attesting witnesses after telling that it was his last will and that the said three
witnesses signed their names on the last page after the attestation clause in his
presence and in the presence of each other. The oppositors did not submit any
evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that
it was in the handwriting of the testator and that although at the time it was
executed and at the time of the testators death, holographic wills were not
permitted by law still, because at the time of the hearing and when the case was to
be decided the new Civil Code was already in force, which Code permitted the
execution of holographic wills, under a liberal view, and to carry out the intention of
the testator which according to the trial court is the controlling factor and may

override any defect in form, said trial court by order dated January 24, 1952,
admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho
Abadia. The oppositors are appealing from that decision; and because only
questions of law are involved in the appeal, the case was certified to us by the Court
of Appeals.

The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a
person may execute a holographic will which must be entirely written, dated and
signed by the testator himself and need not be witnessed. It is a fact, however, that
at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia
died in 1943, holographic wills were not permitted, and the law at the time imposed
certain requirements for the execution of wills, such as numbering correlatively
each page (not folio or sheet) in letters and signing on the left hand margin by the
testator and by the three attesting witnesses, requirements which were not
complied with in Exhibit "A" because the back pages of the first two folios of the will
were not signed by any one, not even by the testator and were not numbered, and
as to the three front pages, they were signed only by the testator.

Interpreting and applying this requirement this Court in the case of In re Estate of
Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his
witnesses to sign on the left hand margin of every page, said:jgc:chanrobles.com.ph

". . . This defect is radical and totally vitiates the testament. It is not enough that
the signatures guaranteeing authenticity should appear upon two folios or leaves;
three pages having been written on, the authenticity of all three of them should be
guaranteed by the signature of the alleged testatrix and her witnesses."cralaw
virtua1aw library

And in the case of Aspe v. Prieto, 46 Phil., 700, referring to the same requirement,
this Court declared:jgc:chanrobles.com.ph

"From an examination of the document in question, it appears that the left margins
of the six pages of the document are signed only by Ventura Prieto. The
noncompliance with section 2 of Act No. 2645 by the attesting witnesses who
omitted to sign with the testator at the left margin of each of the five pages of the
document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes
an obstacle to its probate."cralaw virtua1aw library

What is the law to apply to the probate of Exh. "A" ? May we apply the provisions of
the new Civil Code which now allows holographic wills, like Exhibit "A" which

provisions were invoked by the appellee- petitioner and applied by the lower court?
But article 795 of this same new Civil Code expressly provides: "The validity of a will
as to its form depends upon the observance of the law in force at the time it is
made." The above provision is but an expression or statement of the weight of
authority to the effect that the validity of a will is to be judged not by the law inforce
at the time of the testators death or at the time the supposed will is presented in
court for probate or when the petition is decided by the court but at the time the
instrument was executed. One reason in support of the rule is that although the will
operates upon and after the death of the testator, the wishes of the testator about
the disposition of his estate among his heirs and among the legatees is given
solemn expression at the time the will is executed, and in reality, the legacy or
bequest then becomes a completed act. This ruling has been laid down by this court
in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should
be followed.

Of course, there is the view that the intention of the testator should be the ruling
and controlling factor and that all adequate remedies and interpretations should be
resorted to in order to carry out said intention, and that when statutes passed after
the execution of the will and after the death of the testator lessen the formalities
required by law for the execution of wills, said subsequent statutes should be
applied so as to validate wills defectively executed according to the law in force at
the time of execution. However, we should not forget that from the day of the death
of the testator, if he leaves a will, the title of the legatees and devisees under it
becomes a vested right, protected under the due process clause of the constitution
against a subsequent change in the statute adding new legal requirements of
execution of wills which would invalidate such a will. By parity of reasoning, when
one executes a will which is invalid for failure to observe and follow the legal
requirements at the time of its execution then upon his death he should be regarded
and declared as having died intestate, and his heirs will then inherit by intestate
succession, and no subsequent law with more liberal requirements or which
dispenses with such requirements as to execution should be allowed to validate a
defective will and thereby divest the heirs of their vested rights in the estate by
intestate succession. The general rule is that the Legislature can not validate void
wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is
denied probate. With costs.

Jaboneta v. Gustilo, 5 Phil 541

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 1641

January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.

Ledesma, Sumulong and Quintos for appellant.

Del-Pan, Ortigas and Fisher for appellees.

CARSON, J.:

In these proceedings probate was denied the last will and testament of Macario
Jaboneta, deceased, because the lower court was of the opinion from the evidence
adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his
signature thereto in the presence of Isabelo Jena, another of the witnesses, as
required by the provisions of section 618 of the Code of Civil Procedure.

The following is a copy of the evidence which appears of record on this particular
point, being a part of the testimony of the said Isabeo Jena:

Q.

1641

Who first signed the will?

A.

1641

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

Q.

1641

Who were those others to whom you have just referred?

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

Q.
1641
State positively whether Julio Javellana did or did not sign as a
witness to the will.

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

Q.

1641

Why do you believe Julio Javellana signed?

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

Q.

1641

Explain this contradictory statement.

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

Q.
1641
State positively whether Julio moved his hand with the pen as if for
the purpose of signing, or whether he was signing

A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been
questioned by any of the parties to the proceedings, but the court, nevertheless,
found the following facts:

On the 26th day of December, 1901, Macario Jaboneta executed under the following
circumstances the document in question, which has been presented for probate as
his will:

Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the
document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and
Isabelo Jena as witnesses, executed the said document as his will. They were all
together, and were in the room where Jaboneta was, and were present when he
signed the document, Isabelo Jena signing afterwards as a witness, at his request,
and in his presence and in the presence of the other two witnesses. Aniceto
Jalbuena then signed as a witness in the presence of the testator, and in the
presence of the other two persons who signed as witnesses. At that moment Isabelo
Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the
house Julio Javellana took the pen in his hand and put himself in position to sign the
will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless,
after Jena had left the room the said Julio Javellana signed as a witness in the
presence of the testator and of the witness Aniceto Jalbuena.

We can not agree with so much of the above finding of facts as holds that the
signature of Javellana was not signed in the presence of Jena, in compliance with
the provisions of section 618 of the Code of Civil Procedure. The fact that Jena was
still in the room when he saw Javellana moving his hand and pen in the act of
affixing his signature to the will, taken together with the testimony of the remaining
witnesses which shows that Javellana did in fact there and then sign his name to the
will, convinces us that the signature was affixed in the presence of Jena. The fact
that he was in the act of leaving, and that his back was turned while a portion of the
name of the witness was being written, is of no importance. He, with the other
witnesses and the testator, had assembled for the purpose of executing the
testament, and were together in the same room for that purpose, and at the
moment when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Javellana that he could see
everything which took place by merely casting his eyes in the proper direction, and
without any physical obstruction to prevent his doing so, therefore we are of opinion
that the document was in fact signed before he finally left the room.

The purpose of a statutory requirement that the witness sign in the presence of the
testator is said to be that the testator may have ocular evidence of the identity of
the instrument subscribed by the witness and himself, and the generally accepted

tests of presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law,
vol. 30, p. 599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the
witnesses are together for the purpose of witnessing the execution of the will, and
in a position to actually see the testator write, if they choose to do so; and there are
many cases which lay down the rule that the true test of vision is not whether the
testator actually saw the witness sign, but whether he might have seen him sign,
considering his mental and physical condition and position at the time of the
subscription. (Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the
testator and the witnesses are equally applicable in determining whether the
witnesses signed the instrument in the presence of each other, as required by the
statute, and applying them to the facts proven in these proceedings we are of
opinion that the statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to the will on the
ground stated in the ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded in
these proceedings was satisfactorily proven to be the last will and testament of
Macario Jaboneta, deceased, and that it should therefore be admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of costs,
and after twenty days the record will be returned to the court form whence it came,
where the proper orders will be entered in conformance herewith. So ordered.

Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.

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c.

Art. 806, Purpose of Acknowledgment of Wills, Duties of a Notary

1.

Cruz vs. Villasor, 54 SCRA 31;

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Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-32213

November 26, 1973

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu
allowing the probate of the last will a testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease

opposed the allowance of the will (Exhibit "E"), alleging the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said
instrument was execute without the testator having been fully informed of the
content thereof, particularly as to what properties he was disposing and that the
supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will
and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit
"E") was executed in accordance with law, particularly Articles 805 and 806 of the
new Civil Code, the first requiring at least three credible witnesses to attest and
subscribe to the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses must appear before the notary
public to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand, private respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial compliance with the
legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to
sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro,
100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in

front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary
of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.)
Consequently, if the third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of himself. This cannot be
done because he cannot split his personality into two so that one will appear before
the other to acknowledge his participation in the making of the will. To permit such
a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any
illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function
would defeated if the notary public were one of the attesting instrumental
witnesses. For them he would be interested sustaining the validity of the will as it
directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize
fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130).
There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas
Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.
496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also
Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose
of the law in this jurisdiction or are not decisive of the issue herein because the
notaries public and witnesses referred to aforecited cases merely acted as
instrumental, subscribing attesting witnesses, and not as acknowledging witnesses.
He the notary public acted not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806.
Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of Article 80
be requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before
the notary public to acknowledge the will. The result would be, as has been said,

that only two witnesses appeared before the notary public for or that purpose. In
the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.

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2.
3.

Garcia vs. Gatchialian, 21 SCRA 1056;

N THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO
GATCHALIAN, deceased. PEDRO REYES GARCIA, petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG,
VIRGINIA G. TALANAY and ANGELES G. TALANAY, oppositors-appellees.

E. Debuque for petitioner-appellant.

E. L. Segovia for oppositors-appellees.

DIZON, J.:

This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First
Instance of Rizal in Special Proceedings No. 2623 denying the allowance of the will
of the late Gregorio Gatchalian, on the ground that the attesting witnesses did not
acknowledge it before a notary public, as required by law.

On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the
municipality of Pasig, Province of Rizal, leaving no forced heirs. On April 2 of the
same year, appellant filed a petition with the above named court for the probate of
said alleged will (Exhibit "C") wherein he was instituted as sole heir. Felipe
Gatchalian, Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G.
Talanay and Angeles G. Talanay, appellees herein, opposed the petition on the
ground, among others, that the will was procured by fraud; that the deceased did
not intend the instrument signed by him to be as his will; and that the deceased
was physically and mentally incapable of making a will at the time of the alleged
execution of said will.

After due trial, the court rendered the appealed decision finding the document
Exhibit "C" to be the authentic last will of the deceased but disallowing it for failure
to comply with the mandatory requirement of Article 806 of the New Civil Code
that the will must be acknowledged before a notary public by the testator and the
witnesses.

An examination of the document (Exhibit "C") shows that the same was
acknowledged before a notary public by the testator but not by the instrumental
witnesses.

Article 806 of the New Civil Code reads as follows:

Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.

We have held heretofore that compliance with the requirement contained in the
above legal provision to the effect that a will must be acknowledged before a notary
public by the testator and also by the witnesses is indispensable for its validity (In
re: Testate Estate of Alberto, G. R. No. L-11948, April 29, 1959). As the document
under consideration does not comply with this requirement, it is obvious that the
same may not be probated.

WHEREFORE, the decision appealed from is affirmed, with costs.

Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ.,
concur.

Concepcion, C.J., and Reyes, J.B.L., J., took no part.

4.
5.

Gabucan vs. Manta, 95 SCRA 752 (What are non-excusable lapses?)

OSE ANTONIO GABUCAN, petitioner-appellant,

vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR,
respondents-appellees.

Ignacio A. Calingin for appellant.

AQUINO, J.:

This case is about the dismissal of a petition for the probate of a notarial will on the
ground that it does not bear a thirty-centavo documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in
Special Proceeding No. 41 for the probate of the will of the late Rogaciano Gabucan,
dismissed the proceeding (erroneously characterizes as an "action")

The proceeding was dismissed because the requisite documentary stamp was not
affixed to the notarial acknowledgment in the will and, hence, according to
respondent Judge, it was not admissible in evidence, citing section 238 of the Tax
Code, now section 250 of the 1977 Tax Code, which reads:

SEC. 238.
Effect of failure to stamp taxable document. An instrument,
document, or paper which is required by law to be stamped and which has been
signed, issued, accepted, or transferred without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any record of transfer of the same be
admitted or used in evidence in any court until the requisite stamp or stamps shall
have been affixed thereto and cancelled.

No notary public or other officer authorized to administer oaths shall add his jurat or
acknowledgment to any document subject to documentary stamp tax unless the
proper documentary stamps are affixed thereto and cancelled.

The probate court assumed that the notarial acknowledgment of the said will is
subject to the thirty-centavo documentary stamp tax fixed in section 225 of the Tax
Code, now section 237 of the 1977 Tax Code.

Respondent Judge refused to reconsider the dismissal in spite of petitioner's

manifestation that he had already attached the documentary stamp to the original
of the will. (See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)

The case was brought to this Court by means of a petition for mandamus to compel
the lower court to allow petitioner's appeal from its decision. In this Court's
resolution of January 21, 1980 the petition for mandamus was treated in the interest
of substantial and speedy justice as an appeal under Republic Act No. 5440 as well
as a special civil action of certiorari under Rule 65 of the Rules of Court.

We hold that the lower court manifestly erred in declaring that, because no
documentary stamp was affixed to the will, there was "no will and testament to
probate" and, consequently, the alleged "action must of necessity be dismissed".

What the probate court should have done was to require the petitioner or proponent
to affix the requisite thirty-centavo documentary stamp to the notarial
acknowledgment of the will which is the taxable portion of that document.

That procedure may be implied from the provision of section 238 that the nonadmissibility of the document, which does not bear the requisite documentary
stamp, subsists only "until the requisite stamp or stamps shall have been affixed
thereto and cancelled."

Thus, it was held that the documentary stamp may be affixed at the time the
taxable document is presented in evidence (Del Castillo vs. Madrilena 49 Phil. 749).
If the promissory note does not bear a documentary stamp, the court should have
allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs.
Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that
the lack of the documentary stamp on a document does not invalidate such

document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and
Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-6.)

WHEREFORE, the lower court's dismissal of the petition for probate is reversed and
set aside. It is directed to decide the case on the merits in the light of the parties'
evidence. No costs.

SO ORDERED.

Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ. concur.

The Lawphil Project - Arellano Law Foundation

d.

Art. 807-808, Additional Requirements for Blind and Deaf-Mute Testators

1.

Garcia vs. Vasquez, 32 SCRA 498 (Who is a blind testator?)

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE

JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as
Judge of the Court of First Instance of Manila, Branch and CONSUELO GONZALES
VDA. DE PRECILLA, Respondents.

[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE

JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as
Judge of the Court of First Instance of Manila, Branch V, REGISTER OF DEEDS OF
MANILA, and CONSUELO GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES

VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO,
JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO,
ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V.
GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL
ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISOMANAHAN, Oppositors-Appellants.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent
Consuelo S. Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla &
Ramon C. Aquino for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et.

Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus
de Praga.

Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina

Narciso, Et. Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants
Natividad del Rosario Sarmiento, Et. Al.

SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR

DISALLOWANCE; TESTATRIXS DEFECTIVE EYESIGHT AS UNABLING HER TO READ
THE PROVISIONS OF LATER WILL. The declarations in court of the opthalmologist
as to the condition of the testatrixs eyesight fully establish the fact that her vision
remained mainly for viewing distant objects and not for reading print; that she was,
at the time of the execution of the second will on December 29, 1960, incapable of
reading and could not have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT
BAR. Upon its face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, apparently to
save on space. Plainly, the testament was not prepared with any regard for the
defective vision of Da. Gliceria, the typographical errors remained uncorrected
thereby indicating that the execution thereof must have been characterized by
haste. It is difficult to understand that so important a document containing the final
disposition of ones worldly possessions should be embodied in an informal and
untidy written instrument; or that the glaring spelling errors should have escaped
her notice if she had actually retained the ability to read the purported will and had
done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW
CIVIL CODE READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.
The rationale behind the requirement of reading the will to the testator if he is blind
or incapable of reading the will himself is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE. Where as in
the 1960 will there is nothing in the record to show that the requisites of Art. 808 of
the Civil Code of the Philippines that "if the testator is blind, the will shall be read to
him twice," have not been complied with, the said 1960 will suffer from infirmity
that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS;

ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE
TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE
THE TRUST; CASE AT BAR. Considering that the alleged deed of sale was executed
when Gliceria del Rosario was already practically blind and that the consideration
given seems unconscionably small for the properties, there was likelihood that a
case for annulment might be filed against the estate or heirs of Alfonso Precilla. And

the administratrix being the widow and heir of the alleged transferee, cannot be
expected to sue herself in an action to recover property that may turn out to belong
to the estate. This, plus her conduct in securing new copies of the owners duplicate
of titles without the courts knowledge and authority and having the contract bind
the land through issuance of new titles in her husbands name, cannot but expose
her to the charge of unfitness or unsuitability to discharge the trust, justifying her
removal from the administration of the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR
THE RIGHT OF POSSESSION OF REAL PROPERTY." On the matter of lis pendens,
the provisions of the Rules of Court are clear: notice of the pendency of an action
may be recorded in the office of the register of deeds of the province in which the
property is situated, if the action affects "the title or the right of possession of
(such) real property."cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in controversy here
is simply the fitness or unfitness of said special administratrix to continue holding
the trust, it does not involve or affect at all the title to, or possession of, the
properties covered by TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of
such case (L-26615) is not an action that can properly be annotated in the record of
the titles to the properties.

DECISION

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila
(in Sp. Proc. No. 62618) admitting to probate the alleged last will an, testament of
the late Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615
and L-2684 are separate petitions for mandamus filed by certain alleged heirs of
said decedent seeking (1) to compel the probate court to remove Consuelo S.
Gonzales-Precilla as special administratrix of the estate, for conflict of interest, to
appoint a new one in her stead; and (2) to order the Register of Deeds of Manila to
annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in
the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be
properly belonging to the estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be
stated as follows:chanrob1es virtual 1aw library

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September
1965, leaving no descendents, ascendants, brother or sister. At the time of her
death, she was said to be 90 years old more or less, and possessed of an estate
consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the

deceased, petitioned the Court of First Instance of Manila for probate of the alleged
last will and testament of Gliceria A. del Rosario, executed on 29 December 1960,
and for her appointment as special administratrix of the latters estate, said to be
valued at about P100,000.00, pending the appointment of a regular administrator
thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr.
Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario
on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in both the
1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of
the deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion,
and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria
Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed Mauricio, the latter five groups of
persons all claiming to be relatives of Doa Gliceria within the fifth civil degree. The
oppositions invariably charged that the instrument executed in 1960 was not
intended by the deceased to be her true will; that the signatures of the deceased
appearing in the will was procured through undue and improper pressure and
influence the part of the beneficiaries and/or other persons; that the testatrix did
not know the object of her bounty; that the instrument itself reveals irregularities in
its execution, and that the formalities required by law for such execution have not
been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the
deceased, joined the group of Dr. Jaime Rosario in registering opposition to the
appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses interest adverse to the
estate. After the parties were duly heard, the probate court, in its order of 2 October
1965, granted petitioners prayer and appointed her special administratrix of the
estate upon a bond for P30,000.00. The order was premised on the fact the
petitioner was managing the properties belonging to the estate even during the

lifetime of the deceased, and to appoint another person as administrator or co

administrator at that stage of the proceeding would only result in further confusion
and difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court
an urgent motion to require the Hongkong & Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September 1965. The
court denied this motion on 22 October 1965 for being premature, it being unaware
that such deposit in the name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children,
Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the
court for the immediate removal of the special administratrix. It was their claim that
the special administratrix and her deceased husband, Alfonso Precilla, 2 had caused
Gliceria A. del Rosario to execute a simulated and fraudulent deed of absolute sale
dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon located
on Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00.
Oppositors contended that since it is the duty of the administrator to protect and
conserve the properties of the estate, and it may become necessary that, an action
for the annulment of the deed of sale land for recovery of the aforementioned
parcels of land be filed against the special administratrix, as wife and heir of Alfonso
Precilla, the removal of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing
the Special Administratrix to deposit with the Clerk of Court all certificates of title
belonging to the estate. It was alleged that on 22 October 1965, or after her
appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as
special administratrix of the estate of the deceased Gliceria A. del Rosario, filed with
Branch IV of the Court of First Instance of Manila a motion for the issuance of new
copies of the owners duplicates of certain certificates of title in the name of Gliceria
del Rosario, supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted, new copies of
the owners duplicates of certificates appearing the name of Gliceria del Rosario
(among which were TCT Nos. 66201, 66202 and 66204) were issued on 15
November 1965. On 8 December 1965, according to the oppositors, the same
special administratrix presented to the Register of Deeds the deed of sale involving
properties covered by TCT Nos. 66201, 66202 and 66204 supposedly executed by
Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in
consequence, said certificates of title were cancelled and new certificates (Nos.
81735, 81736 and 81737) were issued in the name of Alfonso Precilla, married to
Consuelo S. Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of
Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will, the
probate court took note that no evidence had been presented to establish that the
testatrix was not of sound mind when the will was executed; that the fact that she
had prepared an earlier will did not, prevent her from executing another one
thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960
testament was contained in one page does not render the latter invalid; that, the
erasures and alterations in the instrument were insignificant to warrant rejection;
that the inconsistencies in the testimonies of the instrumental witnesses which were
noted by the oppositors are even indicative of their truthfulness. The probate court,
also considering that petitioner had already shown capacity to administer the
properties of the estate and that from the provisions of the will she stands as the
person most concerned and interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the oppositors
appealed, the case being docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors motion of
14 December 1965 for the removal of the then special administratrix, as
follows:jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special
administratrix and to appoint another one in her stead, is in order that an action
may be filed against the special administratrix for the annulment of the deed of sale
executed by the decedent on January 10, 1961. Under existing documents, the
properties sold pursuant to the said deed of absolute sale no longer forms part of
the estate. The alleged conflict of interest is accordingly not between different
claimants of the same estate. If it is desired by the movants that an action be filed
by them to annul the aforesaid deed absolute sale, it is not necessary that the
special administratrix be removed and that another one be appointed to file such
action. Such a course of action would only produce confusion and difficulties in the
settlement of the estate. The movants may file the aforesaid proceedings,
preferably in an independent action, to secure the nullity of the deed of absolute
even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the
titles in the name of the decedent, the same was also denied, for the reason that if
the movants were referring to the old titles, they could no longer be produced, and
if they meant the new duplicate copies thereof that were issued at the instance of
the special administratrix, there would be no necessity therefor, because they were
already cancelled and other certificates were issued in the name of Alfonso Precilla.
This order precipitated the oppositors filing in this Court of a petition for mandamus

(G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez,
Et. Al.), which was given due course on 6 October 1966.

On 15 December 1965, with that motion for removal pending in the court, the
oppositors requested the Register of Deeds of Manila to annotate a notice of lis
pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name of Alfonso
Precilla. And when said official refused to do so, they applied to the probate court (in
Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate a lis
pendens notice in the aforementioned titles contending that the matter of removal
and appointment of the administratrix, involving TCT Nos. 81735, 81736, and
81737, was already before the Supreme Court. Upon denial of this motion on 12
November 1966, oppositors filed another mandamus action, this time against the
probate court and the Register of Deeds. The case was docketed and given due
course in this Court as G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the

order allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix,
Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956
consisting of 12 pages and written in Spanish, a language that she knew and spoke,
witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and
acknowledged before notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente
Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary
public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses
Decena, Lopez and Rosales uniformly declared that they were individually requested
by Alfonso Precilla (the late husband of petitioner special administratrix) to witness
the execution of the last will of Doa Gliceria A. del Rosario; that they arrived at the
house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the
afternoon of 29 December 1960; that the testatrix at the time was apparently of
clear and sound mind, although she was being aided by Precilla when she walked; 3
that the will, which was already prepared, was first read "silently" by the testatrix
herself before she signed it; 4 that he three witnesses thereafter signed the will in
the presence of the testatrix and the notary public and of one another. There is also
testimony that after the testatrix and the witnesses to the will acknowledged the
instrument to be their voluntary act and deed, the notary public asked for their
respective residence certificates which were handed to him by Alfonso Precilla,
clipped together; 5 that after comparing them with the numbers already written on
the will, the notary public filled in the blanks in the instrument with the date, 29

January 1960, before he affixed his signature and seal thereto. 6 They also testified
that on that occasion no pressure or influence has been exerted by any person upon
the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of
this 1960 will are evident from the records. The will appeared to have been
prepared by one who is not conversant with the spelling of Tagalog words, and it has
been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan
accent. 7 The witnesses to the will, two of whom are fellow Visayans, 8 admitted
their relationship or closeness to Precilla. 9 It was Precilla who instructed them to go
to the house of Gliceria del Rosario on 29 December 1960 to witness an important
document, 10 and who took their residence certificates from them a few days
before the will was signed. 11 Precilla had met the notary public and witnesses
Rosales and Lopez at the door of the residence of the old woman; he ushered them
to the room at the second floor where the signing of the document took place; 12
then he fetched witness Decena from the latters haberdashery shop a few doors
away and brought him to, the house the testatrix. 13 And when the will was actually
executed Precilla was present. 14

The oppositors-appellants in the present case, however, challenging the correctness

of the probate courts ruling, maintain that on 29 December 1960 the eyesight of
Gliceria del Rosario was so poor and defective that she could not have read the
provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and
Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material
and illuminating. Said ophthalmologist, whose expertise was admitted by both
parties, testified, among other things, that when Doa Gliceria del Rosario saw him
for consultation on 11 March 1960 he found her left eye to have cataract (opaque
lens), 15 and that it was "above normal in pressure", denoting a possible glaucoma,
a disease that leads to blindness 16 As to the conditions of her right eye, Dr.
Tamesis declared:jgc:chanrobles.com.ph

"Q
But is there anything here in the entry appearing in the other documents
Exhibits 3-B, 3-C and 3-D from which you could inform the court as to the condition
of the vision of the patient as to the right eve?

"A
Under date of August 30, 1960, is the record of refraction. that is setting of
glass by myself which showed that the right eye with my prescription of glasses had
a vision of 2 over 60 (20/60) and for the left eye with her correction 20 over 300
(20/300).

"Q
In laymans language, Doctor, what is the significance of that notation that
the right had a degree of 20 over 60 (20/60)?

"A
It meant that eye at least would be able to recognize objects or persons at a
minimum distance of twenty feet.

"Q

But would that grade enable the patient to read print?

"A
Apparently that is only a record for distance vision, for distance sight, not for
near."cralaw virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the
decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of
the glasses her vision was only "counting fingers," 17 at five feet. The crossexamination of the doctor further elicited the following
responses:jgc:chanrobles.com.ph

"Q
After she was discharged from the hospital you prescribed lenses for her, or
glasses?

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

"Q

And the glasses prescribed by you enabled her to read, Doctor?

"A
As far as my record is concerned, with the glasses for the left eye which I
prescribed the eye which I operated she could see only forms but not read.
That is on the left eye.

"Q

How about the right eye?

"A
The same, although the vision on the right eye is even better than the left
eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).

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

November 1965 certifying that Gliceria del Rosario was provided with aphakic
lenses and "had been under medical supervision up to 1963 with apparently good
vision", the doctor had this to say:jgc:chanrobles.com.ph

"Q
When yon said that she had apparently good vision you mean that she was
able to read?

"A
No, not necessarily, only able to go around, take care of herself and see. This
I can tell you, this report was made on pure recollections and I recall she was using
her glasses although I recall also that we have to give her medicines to improve her
vision, some medicines to improve her identification some more.

"Q

What about the vision in the right eve, was that corrected by the glasses?

"A
Yes, with the new prescription which I issued on 80 August 1960. It is in the
clinical record.

"Q

The vision in the right eye was corrected?

"A

Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and,
therefore, has first hand knowledge of the actual condition of her eyesight from
August, 1960 up to 1963, fully establish the fact that notwithstanding the operation
and removal of the cataract in her left eye and her being fitted with aphakic lens
(used by cataract patients), her vision remained mainly for viewing distant objects
and not for reading print. Thus, the conclusion is inescapable that with the condition
of her eyesight in August, 1960, and there is no evidence that it had improved by 29
December 1960, Gliceria del Rosario was incapable f reading, and could not have
read the provisions of the will supposedly signed by her on 29 December 1960. It is
worth noting that the instrumental witnesses stated that she read the instrument
"silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the

appearance of the will, Exhibit "D", acquires striking significance. Upon its face, the
testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, to much so that the words had to be
written very close on the top, bottom and two sides of the paper, leaving no margin
whatsoever; the word "and" had to be written by the symbol" &", apparently to save
on space. Plainly, the testament was not prepared with any regard for the defective
vision of Doa Gliceria. Further, typographical errors like "HULINH" for "HULING"
(last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for
"Instrumental", and "acknowledged" for "acknowledge, remained uncorrected,
thereby indicating that execution thereof must have been characterized by haste. It
is difficult to understand that so important a document containing the final
disposition of ones worldly possessions should be embodied in an informal and
untidily written instrument; or that the glaring spelling errors should have escaped
her notice if she had actually retained the ability to read the purported will and had
done so. The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that its
admission to probate was erroneous and should be reversed.

That Doa Gliceria should be able to greet her guests on her birthday, arrange
flowers and attend to kitchen tasks shortly prior to the alleged execution of the
testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in no
way proves; that she was able to read a closely typed page, since the acts shown do
not require vision at close range. It must be remembered that with the natural
lenses removed, her eyes had lost the power of adjustment to near vision, the
substituted glass lenses being rigid and uncontrollable by her. Neither is the signing
of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of ones name, when sufficiently practiced, becomes
automatic, so that one need only to have a rough indication of the place where the
signature is to be affixed in order to be able to write it. Indeed, a close examination
of the checks, amplified in the photograph, Exhibit "O", et seq., reinforces the
contention of oppositors that the alleged testatrix could not see at normal reading

distance: the signatures in the checks are written far above the printed base, lines,
and the names of the payees as well as the amounts written do not appear to be in
the handwriting of the alleged testatrix, being in a much firmer and more fluid hand
than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del
Rosario was, as appellant oppositors contend, not unlike a blind testator, and the
due execution of her will would have required observance of the provisions of Article
808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of
the subscribing witnesses, and again, by the notary public before whom the will is
acknowledged."cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he is blind
or incapable of reading the will himself (as when he is illiterate), 18 is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes. That the aim of the law is to insure that the dispositions
of the will are properly communicated to and understood by the handicapped
testator, thus making them truly reflective of his desire, is evidenced by the
requirement that the will should be read to the latter, not only once but twice, by
two different persons, and that the witnesses have to act within the range of his
(the testators) other senses. 19

In connection with the will here in question, there is nothing in the records to show
that the above requisites have been complied with. Clearly, as already stated, the
1960 will sought to be probated suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the
denial by the probate court of their petition for the removal of Consuelo Gonzales
Vda. de Precilla as special administratrix of the estate of the deceased Doa Gliceria
(Petition, G.R. No. L-26615, Annex "B").

The oppositors petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their contention
that through fraud her husband had caused the deceased Gliceria del Rosario to
execute a deed of sale, dated 10 January 1961, by virtue of which the latter
purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y
Narciso, the ownership of 3 parcels of land and the improvements thereon, assessed
at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex
"P", Petition) reasoned out that since the properties were already sold no longer
form part of the estate. The conflict of interest would not be between the estate and
third parties, but among the different claimants of said properties, in which case,
according to the court, the participation of the special administratrix in the action
for annulment that may be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned
was precisely the validity of the conveyance or sale of the properties. In short, if
proper, the action for annulment would have to be undertaken on behalf of the
estate by the special administratrix, affecting as it does the property or rights of the
deceased. 20 For the rule is that only where there is no special proceeding for the
settlement of the estate of the deceased may the legal heirs commence an action
arising out of a right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the
deed of sale, an ordinary and separate action would have to be instituted, the
matter not falling within the competence of the probate court. 22 Considering the
facts then before it, i.e., the alleged deed of sale having been executed by Gliceria
del Rosario on 10 January 1961, when she was already practically blind; and that
the consideration of P30,000.00 seems to be unconscionably small for properties
with a total assessed value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And
the administratrix, being the widow and heir of the alleged transferee, cannot be
expected to sue herself in an action to recover property that may turn out to belong
to the estate. 22 Not only this, but the conduct of the special administratrix in
securing new copies of the owners duplicates of TCT Nos. 66201, 66202, and
66204, without the courts knowledge or authority, and on the pretext that she
needed them in the preparation of the inventory of the estate, when she must have
already known by then that the properties covered therein were already "conveyed"
to her husband by the deceased, being the latters successor, and having the
contract bind the land through issuance of new titles in her husbands name cannot
but expose her to the charge of unfitness or unsuitableness to discharge the trust,
justifying her removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors motion to
require the Hongkong and Shanghai Bank to report all withdrawals made against
the funds of the deceased after 2 September 1965 and (2) the motion for
annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same
are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it
could not have taken action on the complaint against the alleged withdrawals from
the bank deposits of the deceased, because as of that time the court had not yet
been apprised that such deposits exist. Furthermore, as explained by the special
administratrix in her pleading of 30 October 1965, the withdrawals referred to by
the oppositors could be those covered by checks issued in the name of Gliceria del
Rosario during her lifetime but cleared only after her death. That explanation, which
not only appears plausible but has not been rebutted by the petitioners-oppositors,
negates any charge of grave abuse in connection with the issuance of the order
here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court
are clear: notice of the pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is situated, if the action
affects "the title or the right of possession of (such) real property." 23 In the case at
bar, the pending action which oppositors seek to annotate in the records of TCT Nos.
81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No.
L-26615). As previously discussed in this opinion, however, that case is concerned
merely with the correctness of the denial by the probate court of the motion for the
removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate
of the late Gliceria del Rosario. In short, the issue in controversy there is simply the
fitness or unfitness of said special administratrix to continue holding the trust; it
does not involve or affect at all the title to, or possession of, the properties covered
by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L26615) is not an action that can properly be annotated in the record of the titles to
the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate
the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The
petition in G.R. No. L-26615 being meritorious, the appealed order is set aside and
the court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de
Precilla, and appoint one of the heirs intestate of the deceased Doa Gliceria
Avelino del Rosario as special administrator for the purpose of instituting action on
behalf of her estate to recover the properties allegedly sold by her to the late
Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.
2.
Alvarado vs. Gaviola, G.R. No. 74695. September 14, 1993 (Who can be
considered as blind testators?)
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO, petitioner,
vs.

HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA
and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court,
First Division (Civil Cases), and BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the
late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and
expressly revoked a previously executed holographic will at the time awaiting
probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final
draft of the will himself. Instead, private respondent, as the lawyer who drafted the
eight-paged document, read the same aloud in the presence of the testator, the
three instrumental witnesses and the notary public. The latter four followed the
reading with their own respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9

December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan
ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions
in the notarial will to generate cash for the testator's eye operation. Brigido was
then suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read

the final draft of the codicil. Instead, it was private respondent who read it aloud in
his presence and in the presence of the three instrumental witnesses (same as
those of the notarial will) and the notary public who followed the reading using their
own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's
death on 3 January 1979 by private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed an
Opposition on the following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane or otherwise
mentally incapacitated to make a will at the time of its execution due to senility and
old age; that the will was executed under duress, or influence of fear and threats;
that it was procured by undue and improper pressure and influence on the part of
the beneficiary who stands to get the lion's share of the testator's estate; and lastly,
that the signature of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal was that the deceased
was blind within the meaning of the law at the time his "Huling Habilin" and the
codicil attached thereto was executed; that since the reading required by Art. 808 of
the Civil Code was admittedly not complied with, probate of the deceased's last will
and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the
following findings: that Brigido Alvarado was not blind at the time his last will and
codicil were executed; that assuming his blindness, the reading requirement of Art.
808 was substantially complied with when both documents were read aloud to the
testator with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there
was substantial compliance since its purpose of making known to the testator the
contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose
of Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was
the double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado
was not totally blind at the time the will and codicil were executed. However, his
vision on both eyes was only of "counting fingers at three (3) feet" by reason of the

glaucoma which he had been suffering from for several years and even prior to his
first consultation with an eye specialist on
14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as
a "blind" testator under Art. 808 which reads:

Art. 808.
If the testator is blind, the will shall be read to him twice; once, by one
of the subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.

Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute), 6 the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted
by private respondent. 7 Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held
that the testator could still read on the day the will and the codicil were executed
but chose not to do so because of "poor eyesight." 9 Since the testator was still
capable of reading at that time, the court a quo concluded that Art. 808 need not be
complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his "poor," 10
"defective," 11 or "blurred" 12 vision making it necessary for private respondent to
do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the
scope of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind
or incapable of reading the will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also
to those who, for one reason or another, are "incapable of reading the(ir) will(s)."
Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil
on the separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless
the contents were read to him, he had no way of ascertaining whether or not the
lawyer who drafted the will and codicil did so confortably with his instructions.
Hence, to consider his will as validly executed and entitled to probate, it is essential
that we ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be
read twice; once, by one of the instrumental witnesses and, again, by the notary
public before whom the will was acknowledged. The purpose is to make known to
the incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public
and an instrumental witness, it was the lawyer (private respondent) who drafted the
eight-paged will and the five-paged codicil who read the same aloud to the testator,
and read them only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that
the single reading suffices for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental witness read the
contents of the will and codicil to Brigido, probate of the latter's will and codicil
should have been disallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is

acceptable where the purpose of the law has been satisfied, the reason being that

the solemnities surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator's will and codicil aloud in the
presence of the testator, his three instrumental witnesses, and the notary public.
Prior and subsequent thereto, the testator affirmed, upon being asked, that the
contents read corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner does not so
allege, that the contents of the will and codicil were not sufficiently made known
and communicated to the testator. On the contrary, with respect to the "Huling
Habilin," the day of the execution was not the first time that Brigido had affirmed
the truth and authenticity of the contents of the draft. The uncontradicted testimony
of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted
in accordance with his expressed wishes even prior to 5 November 1977 when Atty.
Rino went to the testator's residence precisely for the purpose of securing his
conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de
la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the testator whether the
contents of the document were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word for word with their own
copies, it can be safely concluded that the testator was reasonably assured that
what was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten documents. This
is especially true when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr. Evidente) and
another (Potenciano C. Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in order to
insure the authenticity of the will, the formal imperfections should be brushed aside
when they do not affect its purpose and which, when taken into account, may only
defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's Probate
Order and its affirmance by the Court of Appeals, we quote the following
pronouncement in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative
of the testator's will, must be disregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in
his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these
aside fro the mere reason that a legal requirement intended for his protection was
not followed strictly when such compliance had been rendered unnecessary by the
fact that the purpose of the law, i.e., to make known to the incapacitated testator
the contents of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court
of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this
case has remained pending, this decision is immediately executory. Costs against
petitioner.

SO ORDERED.

Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

e.

Art. 809 Doctrine of Liberal Interpretation

1.

Sebastian vs. Panganiban, 59 Phil 653

n re will of Pedro Paganiban y Jacob, deceased, FRANCISCO SEBASTIAN, PetitionerAppellant, v. IRENE PAGANIBAN ET AL., Oppositors-Appellees.

Jose G. Generoso for Appellant.

Jose G. Mendoza for Appellees.

SYLLABUS

1. WILLS; ATTESTATION CLAUSE. Upon the facts stated and the decision cited in
the opinion of the court, it was held: That the attestation clause in the will in
question was not fatally defective and that it was sufficient to comply with the
requirements of the law.

DECISION

GODDARD, J.:

This is an appeal from the decision of the Court of First Instance of Bulacan denying
the probate of the will of Pedro Paganiban y Jacob upon the ground that the
attestation clause was fatally defective in that it did not strictly comply with the law.

The attestation clause in question and the will are in the Tagalog dialect. As
translated into Spanish by the Honorable Judge of the trial court the attestation
clause is as follows:jgc:chanrobles.com.ph

"Nosotros, Francisco Sebastian, Gregorio Sebastian y Miguel Martin, todos casados y

mayores de edad y vecinos de Hagonoy, afirmamos que este testamento del Sr.
Pedro Paganiban y Jacob, de cuatro paginas utiles, fue firmando por el testador al
pie y en los magenes de todas sus hojas en presencia de nosotros tres, y nosotros
firmanos igualmente al pie y en los margenes de todas las paginas en presencia del
seor Pedro Paganiban y Jacob, quien, segun vimos, estaba en sun sano y cabal
juicio, aunque padeciendo de cierta enfernedad, aqui en Hagoonoy, hoy 14 de mayo
de 1927."cralaw virtua1aw library

The appellant assigns the following error:jgc:chanrobles.com.ph

"Al dictar decision en el presente asunto, el Juzgado de Primera Instancia de

Bulacan incurrio en error, al concluir que la clausula de atestiguamiento en
cuestion no esta edactada estrictamente de acuerdo con las disposiciones de la ley.
En ella no se hace constar que los testigos firmaron al pie y en todas las paginas del
testamento, en presencia de los otros."

The appellees make no objection to the translation of the trial court while the
appellant contends that a more liberal translation could have been made. From an
examination of several Tagalog-English dictionaries it is quite possible that this
could have been done. However this court accepts the translation made by the trial
court.

In the case of the Estate of the deceased Magdalena Ozoa, G.R. No. 37208, 58 Phil.,
928, this court, speaking through Justice Malcolm, stated:jgc:chanrobles.com.ph

"At once it can be conceded that the attestation clause is not written as clearly as it
should have been. It can, however, be further conceded that, while precision of
language in drafting an attestation clause is desirable, it is sufficient it from the
language employed it can reasonably be deduced that the attestation clause fulfills
the requirements of the law. In this instance it is contended on the one hand that
the attestation clause fails to state that the testatrix signed each and every page of
the will in the presence of the three witnesses and in the presence of each other,
and on the other hand that the language is susceptible of a contrary meaning. In
this connection it should be recalled that the attestation clause was a part of the will
prepared in the Visayan dialect, which may be deficient in words properly usable in
a will, and that in the translation therefrom, clauses may be placed out of the
regular order. While the words we have each signed, the same and each page
thereof in the presence of said testatrix and in the presence of each other would be
expected to relate to the attesting witnesses, it is possible to find that the quoted
words also relate to the testatrix. Otherwise stated, the word we could include
both the testatrix and the attesting witnesses.

"The basic decision in this respect, grounded on the doctrine of reasonableness and
intention, is found in the case of Abangan v. Abangan ([1919], 40 Phil., 476).
Following that decision have appeared others which culminated last year in the
decision in the case of Dichoso de Ticson v. De Gorostiza ([1932], 57 Phil., 437),
where an attestation clause was held not to be fatally defective and to conform to
the law. Just the other day, in division, in the case of In re Jennings ([1933], 58 Phil.,
924), the same salutary result was reached. In conformity with these doctrines, we

think that the trial judge was wrong in holding that a defective attestation clause
requires that the will be not legalized."cralaw virtua1aw library

In view of the facts in this case and the decisions cited above, this court is of the
opinion that the error assigned by the petitioner-appellant should be sustained and
the judgment of this court will be that the will of the deceased Pedro Paganiban y
Jacob be ordered admitted to probate, and accordingly the judgment of the trial
court is reversed without special pronouncement as to costs.

Malcolm, Villa-Real, Hull, and Imperial, JJ., concur.

2.

Gil vs. Murciano, 87 Phil 260

ESTATE 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.chanroblesvirtualawlibrary chanrobles virtual law library

Segundo Error. - Erro finalmente a legalizar el referido testamento.

The alleged will read as follows:

Primera Pagina (1)chanrobles virtual law library

EN EL NOMBRE DE DIOS, AMENchanrobles virtual law library

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:chanrobles virtual law library

1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no

tuvimos hijos;chanrobles virtual law library

2. Declaro que tengo propiedades situadas en Manila y en la Provincia de

Pampanga;chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. Galicano

Coronel a quien tengo absoluta confianza, con relevacion de fianza;chanrobles
virtual law library

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. RIVERAchanrobles virtual law library

(Fdo.) RAMON MENDIOLAchanrobles virtual law library

(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.chanroblesvirtualawlibrary chanrobles virtual law
library

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.chanroblesvirtualawlibrary chanrobles

virtual law library

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 abovequoted 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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles

virtual law library

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.chanroblesvirtualawlibrary
chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles
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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 viceversa.chanroblesvirtualawlibrary chanrobles virtual law library

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.).chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary
chanrobles virtual law library

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.chanroblesvirtualawlibrary

chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary
chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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."chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles
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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.chanroblesvirtualawlibrary
chanrobles virtual law library

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.)chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary
chanrobles virtual law library

Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions chanrobles virtual law library

TUAZON, J., dissenting:chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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. L-254 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.chanroblesvirtualawlibrary
chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary
chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual
law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.)chanrobles virtual law library

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.chanroblesvirtualawlibrary
chanrobles virtual law library

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.)chanrobles virtual
law library

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?chanrobles virtual law library

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.chanroblesvirtualawlibrary
chanrobles virtual law library

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."chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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, oft-cited 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."chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 socalled 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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.)chanrobles virtual law library

Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.

3.

Caneda vs. Court of Appeals, G.R. No. 103554. May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA

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

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari
is the issue of whether or not the attestation clause contained in the last will and
testament of the late Mateo Caballero complies with the requirements of Article
805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without
any children and already in the twilight years of his life, executed a last will and

testament at his residence in Talisay, Cebu before three attesting witnesses,

namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said
testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein,
among other things, that the testator was leaving by way of legacies and devises
his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom
do not appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court of
First Instance of Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason to another. On May
29, 1980, the testator passed away before his petition could finally be heard by the
probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in
the will, sough his appointment as special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was so appointed by the probate
court in its order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,

instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners
had their said petition intestate proceeding consolidated with Special Proceeding
No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat
the probate of the Testator's will and the appointment of a special administrator for
his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as
Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for
the return of the records of Special Proceeding No. 3965-R to the archives since the
testate proceeding for the probate of the will had to be heard and resolved first. On
March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the
Regional Trial Court of Cebu where it remained until the conclusion of the probate
proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the testator was already in the
poor state of health such that he could not have possibly executed the same.

Petitioners likewise reiterated the issue as to the genuineness of the signature of

the testator therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary
public Atty. Filoteo Manigos, testified that the testator executed the will in question
in their presence while he was of sound and disposing mind and that, contrary to
the assertions of the oppositors, Mateo Caballero was in good health and was not
unduly influenced in any way in the execution of his will. Labuca also testified that
he and the other witnesses attested and signed the will in the presence of the
testator and of each other. The other two attesting witnesses were not presented in
the probate hearing as the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot

overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it
was Mateo Caballero who initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they abandoned the idea and instead
presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament
of Mateo Caballero and that it was executed in accordance with all the requisites of
the law. 9

Undaunted by the said judgment of the probate court, petitioners elevated the case
in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will
in question is null and void for the reason that its attestation clause is fatally
defective since it fails to specifically state that the instrumental witnesses to the will
witnessed the testator signing the will in their presence and that they also signed
the will and all the pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10 affirming that of
the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be

considered as having substantialy complied with the requirements of Art. 805 of the
Civil Code. What appears in the attestation clause which the oppositors claim to be
defective is "we do certify that the testament was read by him and the attestator,
Mateo Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered correlatively in letters
of the upper part of each page, as his Last Will and Testament, and he has signed
the same and every page thereof, on the spaces provided for his signature and on
the left hand margin in the presence of the said testator and in the presence of each
and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to

indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of
the law would have it that the testator signed the will "in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another." If not completely
or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but
the same was denied in the latter's resolution of January 14, 1992, 12 hence this
appeal now before us. Petitioners assert that respondent court has ruled upon said
issue in a manner not in accord with the law and settled jurisprudence on the
matter and are now questioning once more, on the same ground as that raised
before respondent court, the validity of the attestation clause in the last will of
Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after

some prefatory observations which we feel should be made in aid of the rationale
for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is

permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate after his death. 13 Under the Civil Code, there are two kinds

of wills which a testator may execute. 14 the first kind is the ordinary or attested
will, the execution of which is governed by Articles 804 to 809 of the Code. Article
805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.

The attestation should state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witness, it shall be

interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a

testator and the attesting witness. 15 hence it is likewise known as notarial will.
Where the attestator is deaf or deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by the
notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the testator himself. This kind of will, unlike
the ordinary type, requires no attestation by witnesses. A common requirement in
both kinds of will is that they should be in writing and must have been executed in a
language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not
be written in a language or dialect known to the testator since it does not form part
of the testamentary disposition. Furthermore, the language used in the attestation
clause likewise need not even be known to the attesting witnesses. 18 The last
paragraph of Article 805 merely requires that, in such a case, the attestation clause
shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
manner of the execution the same. 19 It is a separate memorandum or record of the
facts surrounding the conduct of execution and once signed by the witnesses, it
gives affirmation to the fact that compliance with the essential formalities required
by law has been observed. 20 It is made for the purpose of preserving in a
permanent form a record of the facts that attended the execution of a particular
will, so that in case of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will, 22 should state (1) the number of the pages
used upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed the signing by the testator
of the will and all its pages, and that said witnesses also signed the will and every
page thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or decrease in the pages; 23
whereas the subscription of the signature of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by the testator and
attested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declare the
due execution of the will as embodied in the attestation clause. 25 The attestation
clause, therefore, provide strong legal guaranties for the due execution of a will and
to insure the authenticity thereof. 26 As it appertains only to the witnesses and not
to the testator, it need be signed only by them. 27 Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the
clause on a subsequent occasion in the absence of the testator and its witnesses.
28

In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:

The underlying and fundamental objectives permeating the provisions on the law on
wills in this Project consists in the liberalization of the manner of their execution
with the end in view of giving the testator more freedom in expressing his last
wishes, but with sufficient safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure and influence upon the
testator.

This objective is in accord with the modern tendency with respect to the formalities
in the execution of wills. . . . 29

2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the
left margin of each page thereof bearing the respective signatures of the testator
and the three attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the
three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part
of each page, as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another. "Attestation"
and "subscription" differ in meaning. Attestation is the act of senses, while
subscription is the act of the hand. The former is mental, the latter mechanical, and
to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper

published as a will is only to write on the same paper the names of the witnesses,
for the sole purpose of identification. 31

In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the

testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially expressed in
the attestation.

It is contended by petitioners that the aforequoted attestation clause, in

contravention of the express requirements of the third paragraph of Article 805 of
the Civil Code for attestation clauses, fails to specifically state the fact that the
attesting witnesses the testator sign the will and all its pages in their presence and
that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will and
all its pages in the presence of the three attesting witnesses and states as well the
number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words "he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand margin."
What is then clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and
of one another.

It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate. Petitioners are correct in pointing
out that the aforestated defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid if it is not proved that the
will was in fact executed and attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witness affixed
their respective signatures in the presence of the testator and of each other since,
as petitioners correctly observed, the presence of said signatures only establishes
the fact that it was indeed signed, but it does not prove that the attesting witnesses
did subscribe to the will in the presence of the testator and of each other. The
execution of a will is supposed to be one act so that where the testator and the
witnesses sign on various days or occasions and in various combinations, the will
cannot be stamped with the imprimatur of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes 34 regarding
Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be supplied by
an examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts that the will itself
can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate
proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must
only be with respect to the form of the attestation or the language employed
therein. Such defects or imperfections would not render a will invalid should it be
proved that the will was really executed and attested in compliance with Article 805.
In this regard, however, the manner of proving the due execution and attestation
has been held to be limited to merely an examination of the will itself without
resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits
the fact that the attesting witnesses signed each and every page of the will in the
presence of the testator and of each other. 35 In such a situation, the defect is not
only in the form or language of the attestation clause but the total absence of a
specific element required by Article 805 to be specifically stated in the attestation
clause of a will. That is precisely the defect complained of in the present case since
there is no plausible way by which we can read into the questioned attestation
clause statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages and that
said instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.

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

relied on by respondents since it presupposes that the defects in the attestation
clause can be cured or supplied by the text of the will or a consideration of matters
apparent therefrom which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly inferred that the acts
not stated in the omitted textual requirements were actually complied within the
execution of the will. In other words, defects must be remedied by intrinsic evidence
supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by
the attesting witnesses can be supplied by only extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no basis whatsoever from with
such facts may be plausibly deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the fact that he is thereby
resorting to extrinsic evidence to prove the same and would accordingly be doing by
the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence
of views as to which manner of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required in the execution of wills.
The formal requirements were at that time embodied primarily in Section 618 of Act

No. 190, the Code of Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down
in the case of Abangan vs. Abangan, 36 where it was held that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guarantee their truth
and authenticity. Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. Nonetheless, it was also emphasized that
one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will, hence when an interpretation already
given assures such ends, any other interpretation whatsoever that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded. The subsequent cases of Avera vs. Garcia,
37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs.
Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in nature
and are to be strictly construed was followed in the subsequent cases of In the
Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca,
45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case of
Gumban, the attestation clause had failed to state that the witnesses signed the will
and each and every page thereof on the left margin in the presence of the testator.
The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned,

appellants rely on a series of cases of this court beginning with (I)n the Matter of the
(E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada
[1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re
Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana
([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases
beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through
Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924],
46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152).
In its last analysis, our task is to contrast and, if possible, conciliate the last two
decisions cited by opposing counsel, namely, those of Sano vs. Quintana, supra, and
Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act cannot be proved by the
mere exhibition of the will, if it is not stated therein. It was also held that the fact
that the testator and the witnesses signed each and every page of the will can be
proved also by the mere examination of the signatures appearing on the document
itself, and the omission to state such evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit

inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at variance. If we rely on one, we
affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be

mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven members of the court, a clear
majority, with one formal dissent. In the second place, the Mojal decision was
promulgated in December, 1924, while the Quintana decision was promulgated in
December, 1925; the Quintana decision was thus subsequent in point of time. And
in the third place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The law of
the case is here found in section 61 of the Code of Civil Procedure as amended by
Act No. 2645, and in section 634 of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It
is further provided in the same section that "The attestation shall state the number
of sheets or pages used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not executed and attested as in this
Act provided." The law not alone carefully makes use of the imperative, but
cautiously goes further and makes use of the negative, to enforce legislative

intention. It is not within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to
the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the
Court that once more appeared to revive the seeming diversity of views that was
earlier threshed out therein. The cases of Quinto vs. Morata, 49 Rodriguez vs.
Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the
way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56
Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60
Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from
the strict interpretation rule and established a trend toward an application of the
liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification
of the substantial compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation of wills. Said rule
thus became what is now Article 809 of the Civil Code, with this explanation of the
Code Commission:

The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and noncompliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in disposing of his
property.

However, in recent years the Supreme Court changed its attitude and has become
more liberal in the interpretation of the formalities in the execution of wills. This
liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18,

1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back
to the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the
liberalization of the manner of executing wills, article 829 of the Project is
recommended, which reads:

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

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any
puzzle or difficulty, nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its meaning
or to determine the existence or absence of the requisite formalities of law. This
clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire
results."

It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the invalidation of
the attestation clause and ultimately, of the will itself. 67

WHEREFORE, the petition is hereby GRANTED

f.

Art. 810, Formal Requisite of Holographic Wills; Importance of the Date

1.

Gan vs. Yap, 104 Phil 509 (May a holographic will probated upon the
testimony of witnesses?)

ESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,

Petitioner-Appellant, v. ILDEFONSO YAP, Oppositor-Appellee.

Benedicto C. Balderrama, Crispin D. Baizas and Roberto H. Benitez for Appellant.

Arturo M. Tolentino for Appellee.

SYLLABUS

1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW

PROVED. The execution and the contents of a lost or destroyed holographic will
may not be proved by the bare testimony of witnesses who have seen and/or read
such will. The will itself must be presented; otherwise, it shall produce no effect. The
law regards the document itself as material proof of authenticity.

DECISION

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the
City of Manila.

On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of
first instance with a petition for the probate of a holographic will allegedly executed
by the deceased, substantially in these words:jgc:chanrobles.com.ph

"Nobyembre 5, 1951

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na

ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking
mga kamaganakang sumusunod:chanrob1es virtual 1aw library

Vicente Esguerra, Sr. 5 Bahagi

Fausto E. Gan

2 Bahagi

Rosario E. Gan

2 Bahagi

Filomena Alto

1 Bahagi

Beatriz Alto 1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking
ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siyay
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa
halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking
pagalang Felicidad Esguerra-Alto. At kung ito ay may kakulagan man ay bahala
na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap"

Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R. San
Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion for
reconsideration failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra, Primitivo Reyes,

Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as
follows:chanrob1es virtual 1aw library

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her
first cousin, Vicente Esguerra, her desire to make a will. She confided however that
it would be useless if her husband discovered or knew about it. Vicente consulted
with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness, provided the
document was entirely in her handwriting, signed and dated by her. Vicente
Esguerra lost no time in transmitting the information, and on the strength of it, in
the morning of November 5, 1951, in her residence at Juan Luna Street, Manila,
Felicidad wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who
was invited to read it. In the afternoon of that day, Felicidad was visited by a distant
relative, Primitivo Reyes, and she allowed him to read the will in the presence of
Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her
last illness, she entrusted the said will, which was contained in a purse, to Felina
Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the
purse; and being afraid of him by reason of his well-known violent temper, shedelivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to
Felina, only to demand it the next day shortly before the death of Felicidad. Again,
Felina handed it to him but not before she had taken the purse to the toilet, opened
it and read the will for the last time. 2

From the oppositors proof it appears that Felicidad Esguerra had been suffering
from heart disease for several years before her death; that she had been treated by
prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
1950 husband and wife journeyed to the United States wherein for several weeks
she was treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950. However, her
ailment recurred, she suffered several attacks, the most serious of which happened
in the early morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian Colleges
occupying the lower floors and owned by the Yap spouses. Physicians help was
hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient
hardly breathing, lying in bed, her head held high by her husband. Injections and

oxygen were administered. Following the doctors advice the patient stayed in bed,
and did nothing the whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore that Mrs. Felicidad
Esguerra Yap made no will, and could have made no will on that day.

The trial judge refused to credit the petitioners evidence for several reasons, the
most important of which were these: (a) if according to his evidence, the decedent
wanted to keep her will a secret, so that her husband would not know it, it is strange
she executed it in the presence of Felina Esguerra, knowing as she did that
witnesses were unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would have allowed the
former to see and read the will several times; (c) it is improbable that the decedent
would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal the will from her
husband she would carry it around, even to the hospital, in her purse which could
for one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without destroying the will, the theory
of the petitioner being precisely that the will was executed behind his back for fear
he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositors
evidence that Felicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellants brief discussed the testimony of the
oppositor and of his witnesses in a vigorous effort to discredit them. It appears that
the same arguments, or most of them, were presented in the motion to reconsider;
but they failed to induce the court a quo to change its mind. The oppositors brief,
on the other hand, aptly answers the criticisms. We deem it unnecessary to go over
the same matters, because in our opinion the case should be decided not on the
weakness of the opposition but on the strength of the evidence of the petitioner,
who has the burden of proof.

The Spanish Civil Code permited the execution of holographic wills along with other
forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only
one form, thereby repealing the other forms, including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814.
"A person may execute a holographic will which 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."cralaw virtua1aw

library

This is indeed a radical departure from the form and solemnities provided for wills
under Act 190, which for fifty years (from 1901 to 1950) required wills to be
subscribed by the testator and three credible witnesses in each and every page;
such witnesses to attest to the number of sheets used and to the fact that the
testator signed in their presence and that they signed in the presence of the
testator and of each other.

The object of such requirements it has been said, is to close the door against bad
faith and fraud, to prevent substitution of wills, to guarantee their truth and
authenticity (Abangan v. Abangan, 40 Phil., 476) and to avoid that those who have
no right to succeed the testator would succeed him and be benefited with the
probate of same. (Mendoza v. Pilapil, 40 off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly
proved. (Rodriguez v. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.) .

Authenticity and due execution is the dominant requirement to be fulfilled when

such will is submitted to the courts for allowance. For that purpose the testimony of
one of the subscribing witnesses would be sufficient, if there is no opposition (Sec.
5, Rule 77). If there is, the three must testify, if available. (Cabang v. Delfinado 34
Phil., 291; Tolentino v. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its opinion as to
the genuineness and authenticity of the testament, and the circumstances of its due
execution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they
are "entirely written, dated, and signed by the hand of the testator himself." The
law, it is reasonable to suppose, regards the document itself as material proof of
authenticity, and as its own safeguard, since it could at any time, be demonstrated
to be or not to be in the hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the absence of any
such witnesses, (familiar with decedents handwriting) and if the court deem it
necessary, expert testimony may be resorted to."cralaw virtua1aw library

The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or they
may deliberately lie in affirming it is in the testators hand. However, the oppositor
may present other witnesses who also know the testators handwriting, or some
expert witnesses, who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been written by the
hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the
document, whether the will submitted to it has indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity
3 the testators handwriting has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare that it was in
the handwriting of the testator? How can the oppositor prove that such document
was not in the testators handwriting? His witnesses who know testators
handwriting have not examined it. His experts can not testify, because there is no
way to compare the alleged testament with other documents admittedly, or proven
to be, in the testators hand. The oppositor will, therefore, be caught between the
upper millstone of his lack of knowledge of the will or the form thereof, and the
nether millstone of his inability to prove its falsity. Again the proponents witnesses
may be honest and truthful; but they may have been shown a faked document, and
having no interest to check the authenticity thereof have taken no pains to examine
and compare. Or they may be perjurers boldly testifying, in the knowledge that
none could convict them of perjury, because no one could prove that they have not
"been shown" a document which they believed was in the handwriting of the
deceased. Of course, the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings sufficiently similar
to those written by the deceased; but what witness or lawyer would not foresee
such a move and prepare for it? His knowledge of the handwriting established, the
witness (or witnesses) could simply stick to his statement: he has seen and read a
document which he believed was in the deceaseds handwriting. And the court and
the oppositor would practically be at the mercy of such witness (or witnesses) not
only as to the execution, but also as to the contents of the will. Does the law permit
such a situation?

The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost
or destroyed will by secondary evidence the testimony of witnesses, in lieu of the
original document. Yet such Rules could not have contemplated holographic wills
which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830New Civil Code.) .

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic
will is that it may be lost or stolen 4 an implied admission that such loss or theft
renders it useless.

This must be so, because the Civil Code requires it to be protocoled and presented
to the judge, (Art. 689) who shall subscribe it and require its identity to be
established by the three witnesses who depose that they have no reasonable doubt
that the will was written by the testator (Art. 691). And if the judge considers that
the identity of the will has been proven he shall order that it be filed (Art. 693). All
these, imply presentation of the will itself. Art. 692 bears the same implication, to a
greater degree. It requires that the surviving spouse and the legitimate ascendants
and descendants be summoned so that they may make "any statement they may
desire to submit with respect to the authenticity of the will." As it is universally
admitted that the holographic will is usually done by the testator and by himself
alone, to prevent others from knowing either its execution or its contents, the above
article 692 could not have the idea of simply permitting such relatives to state
whether they know of the will, but whether in the face of the document itself they
think the testator wrote it. Obviously, this they cant do unless the will itself is
presented to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of
either complying with the will if they think it authentic, or to oppose it, if they think
it spurious. 5 Such purpose is frustrated when the document is not presented for
their examination. If it be argued that such choice is not essential, because anyway
the relatives may oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the will, if
genuine, a right which they should not be denied by withholding inspection thereof
from them.

We find confirmation of these ideas about exhibition of the document itself in

the decision of the Supreme Court of Spain of June 5, 1925, which denied
protocolization or probate to a document containing testamentary dispositions in
the handwriting of the deceased, but apparently mutilated, the signature and some
words having been torn from it. Even in the face of allegations and testimonial
evidence (which was controverted), ascribing the mutilation to the opponents of the
will. The aforesaid tribunal declared that, in accordance with the provision of the
Civil Code (Spanish) the will itself, whole and unmutilated, must be presented;
otherwise, it shall produce no effect.

"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del

articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera
estar escrito todo el y firmado por testador, con expression del ao, mes y dia en
que se otorque, resulta evidente que para la validez y eficacia de esos testamentos,
no basta la demostracion mas o menos cumplida de que cuando se otorgaron se
llenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal,
y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de ser presentado a
la Autoridad competente, para su adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de
validez y aficacia, por no estar firmado por el testador, cualquiera que sea la causa
de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los
perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable,
si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision
un defecto insubsanable . . . ."cralaw virtua1aw library

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly
the basis of the Spanish Civil Code provisions on the matter. 6

"PRECEDENTES LEGALES Fuero Juzgo, libro segundo, titulo V, ley 15 E depues

que los herederos e sus fijos ovieren esta manda, fasta . . . annos muestrenla al
obispo de la tierra, o al juez fasta Vl meses y el obispo o el juez tomen otros tales
tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por
aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E
depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios
confirmen el escripto de la manda otra vez, y en esta manera vala la manda." (Art.
689, Scaevola - Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of
the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature. 7

Parenthetically, it may be added that even the French Civil Law considers the loss of
the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion
por Diaz Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that the
execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such will. 8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt
this opinion as a Rule of Court for the allowance of such holographic wills. We
hesitate, however, to make this Rule decisive of this controversy, simultaneously
with its promulgation. Anyway, decision of the appeal may rest on the sufficiency,
rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.

At this point, before proceeding further, it might be convenient to explain why,

unlike holographic wills, ordinary wills may be proved by testimonial evidence when
lost or destroyed. The difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second, the testimony of
the subscribing or instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if the ordinary will is
lost, the subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with
the notary) deliberately to lie. And then their lies could be checked and exposed,
their whereabouts and acts on the particular day, the likelihood that they would be
called by the testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to lend themselves to
any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible 9 only
one man could engineer the whole fraud this way: after making a clever or passable
imitation of the handwriting and signature of the deceased, he may contrive to let
three honest and credible witnesses see and read the forgery; and the latter, having
no interest, could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost the forger may have
purposely destroyed it in an "accident" the oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And considering that
the holographic will may consist of two or three pages, and only one of them need
be signed, the substitution of the unsigned pages, which may be the most
important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable

feature feasibility of forgery would be added to the several objections to this

kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law. 10

One more fundamental difference: in the case of a lost will, the three subscribing
witnesses would be testifying to a fact which they saw, namely the act of the
testator of subscribing the will; whereas in the case of a lost holographic will, the
witnesses would testify as to their opinion of the handwriting which they allegedly
saw, an opinion which can not be tested in court, nor directly contradicted by the
oppositors, because the handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves sharing
the trial judges disbelief. In addition to the dubious circumstances described in the
appealed decision, we find it hard to believe that the deceased should show her will
precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to give them a share, or
threaten to reveal its execution to her husband Ildefonso Yap. And this leads to
another point: if she wanted so much to conceal the will from her husband, why did
she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for
instance, her husbands trip to Davao, a few days after the alleged execution of the
will.

In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so tainted
with improbabilities and inconsistencies that it fails to measure up to that "clear and
distinct" proof required by Rule 77, sec. 6. 11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

2.

Rodelas vs. Aranza, 119 SCRA 16 (May a photocopy of a holographic will

be admitted to probate?)

N THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA

deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG,
intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore
it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil.
509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.

The appellees likewise moved for the consolidation of the case with another case
Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.

On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:

(1)
The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence

unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in
its order of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of
the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our
mind that the decedent had discarded before his death his allegedly missing
Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellant's petition is contrary
to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground
that the appeal does not involve question of fact and alleged that the trial court
committed the following assigned errors:

I.
THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy. Pursuant to Article 811 of the
Civil Code, probate of holographic wills is the allowance of the will by the court after
its due execution has been proved. The probate may be uncontested or not. If
uncontested, at least one Identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed
and no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will. It is necessary that
there be a comparison between sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the
execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The law regards
the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order dated July
23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is
hereby SET ASIDE.

SO ORDERED
3.

In Re Estate of Muder, Supreme Court of Arizona, 1988. 159 Ariz. 173, 765
P. 2d 997. (Can there be a pro forma holographic will?)

In the Matter of the ESTATE OF Edward Frank MUDER, Deceased. Linda LIND and
Janet Hiscoe, Petitioners-Appellants, v. Retha MUDER, Respondent-Appellee.

No. CV-88-0063-PR.

Supreme Court of Arizona, In Banc.

December 6, 1988.

*174 Frost & Porter, P.C. by G. Terris Porter, Show Low, for petitioners-appellants.

Joseph Julius Hessinger, P.C. by Joseph Julius Hessinger, Pinetop, for respondentappellee.

CAMERON, Justice.

I. JURISDICTION

Respondent seeks review of the decision and opinion of the court of appeals, which
reversed the trial court's admission of Edward Frank Muder's will to probate. We
have jurisdiction pursuant to Ariz. Const. art. 6 5(3), A.R.S. 12-120.24 and Ariz.
R.Civ.App.P. 23.

II. ISSUE

We must determine whether the purported will is a valid holographic will pursuant
to A.R.S. 14-2503.

III. FACTS

Edward Frank Muder died on 15 March 1984. In September 1986, Retha Muder, the
surviving spouse, submitted a purported will dated 26 January 1984 to the probate
court. The purported will was on a preprinted will form set forth as Exhibit A.

The daughters of Edward Muder by a previous wife contested the will. They were
unsuccessful in the trial court and appealed to the court of appeals. A divided court
of appeals reversed. In re Estate of Muder, 156 Ariz. 326, 751 P.2d 986 (1988). We
granted Retha Muder's petition for review.

IV. WAS THE DOCUMENT A VALID WILL UNDER A.R.S. 14-2502?

The right to make a will did not exist at common law. It is a statutory right. 1 W.
Bowe & D. Parker, Page on the Law of Wills at 62-63 (1960). Because the legislature
has the power to withhold or to grant the right to make a will, its exercise may be
made subject to such regulations and requirements as the legislature pleases. In re
Estate of Wilkins, 54 Ariz. 218, 221, 94 P.2d 774, 775 (1939).

It is apparent that this was not a proper formal will pursuant to statute because only
one witness signed.

Except as provided for holographic wills, ... every will shall be in writing signed by
the testator or in the testator's name by some other person in the testator's
presence and by his direction, and shall be signed by at least two persons each of
whom witnessed either the signing *175 or the testator's acknowledgment of the
signature or of the will.
A.R.S. 14-2502 (emphasis added).

Also, the document does not meet the requirements for a self-proved will. The selfproving affidavit does not state that the testator signed or acknowledged his
signature, or the will, in the presence of witnesses. A.R.S. 14-2504; See In re
Estate of Mackaben, 126 Ariz. 599, 601, 617 P.2d 765, 767 (App. 1980).

We agree with the court of appeals that the will is not valid under the formal will
statute, A.R.S. 14-2502.

V. IS THE DOCUMENT A VALID HOLOGRAPHIC WILL?

To serve as a will, the document must indicate that the testator had testamentary
intent. In re Estate of Blake v. Benza, 120 Ariz. 552, 553, 587 P.2d 271, 272 (App.
1978); see also In re Estate of Harris, 38 Ariz. 1, 296 P. 267 (1931). Testamentary
intent requires that the writing, together with whatever extrinsic evidence may be
admissible, establish that the testator intended such writing to dispose of his
property upon his death. Blake, 120 Ariz. at 553, 587 P.2d at 272.

Because this will fails under A.R.S. 14-2502, it is only valid if it can be considered a
holographic will under the statute that provides:

A will which does not comply with 14-2502 is valid as a holographic will, whether
or not witnessed, if the signature and the material provisions are in the handwriting
of the testator.
A.R.S. 14-2503. This section was enacted in 1973 and replaced the previous
holographic will statute that stated:

A holographic will is one entirely written and signed by the hand of the testator
himself. Attestation by subscribing witnesses is not necessary in the case of a
holographic will.
A.R.S. 14-123 (1956).

Under the previous statute, no printed matter was allowed on the document.
Litigation resulted because often a testator would write his holographic will on paper
containing printed letterheads. Such printed matter was obviously not in the
testator's handwriting. To avoid the harsh result of denying such holographic wills
admission to probate, courts created the "surplusage theory." This theory held that
the statutory words "wholly" or "entirely" were satisfied when the material
provisions of the will were "wholly" or "entirely" in the handwriting of the testator,
and that other written or printed material could accordingly be disregarded as
surplusage. Arizona adopted the surplusage theory to preserve the validity of such
holographic wills. See In re Estate of Schuh, 17 Ariz. App. 172, 173, 496 P.2d 598,
599 (1972); see also In re Estate of Morrison, 55 Ariz. 504, 510, 103 P.2d 669, 672

(1940) (it was important that the testamentary part of the will be wholly written by
the testator and signed by him).

With the increased use of printed will forms, states with statutes similar to our
previous statute requiring that a holographic will be entirely in the handwriting of
the testator, applied the surplusage theory to the printed will forms by disregarding
the printed matter and then looking to see if what was left made sense and could be
considered a valid will. See Estate of Black, 30 Cal. 3d 880, 641 P.2d 754, 181 Cal.
Rptr. 222 (1982); Succession of Burke, 365 So. 2d 858 (La. Ct. App. 1978); Watkins
v. Boykin, 536 S.W.2d 400 (Tex. Civ. App. 1976); see also In re Estate of Johnson,
129 Ariz. 307, 630 P.2d 1039 (App. 1981).

California considered this issue because its statute required that a holographic will
must be entirely written, dated, and signed by the hand of the testator himself and
that any matter printed that was incorporated in the will provisions had to be
considered part of the will. Estate of Black, 30 Cal. 3d 880, 883, 641 P.2d 754, 755,
181 Cal. Rptr. 222, 223 (1982). The will in Black was a document that was
handwritten on three pages of a partially preprinted stationer's form. Id. The court
upheld the will by finding that none of the incorporated material was either material
to the substance of the will or essential to its validity as a testamentary disposition.
Id. at 885, 641 P.2d at 757, 181 Cal. Rptr. at 225. As Justice Richardson stated:

*176 No sound purpose or policy is served by invalidating a holograph where every

statutorily required element of the will is concededly expressed in the testatrix' own
handwriting and where her testamentary intent is clearly revealed in the words as
she wrote them. Frances Black's sole mistake was her superfluous utilization of a
small portion of the language of the preprinted form. Nullification of her carefully
expressed testamentary purpose because of such error is unnecessary to preserve
the sanctity of the statute.
Black, 30 Cal. 3d at 888, 641 P.2d at 759, 181 Cal. Rptr. at 227.

We believe that our legislature, in enacting the present statute, A.R.S. 14-2503,
intended to allow printed portions of the will form to be incorporated into the
handwritten portion of the holographic will as long as the testamentary intent of the
testator is clear and the protection afforded by requiring the material provisions be
in the testator's handwriting is present.

Indeed, our statute states:

B. The underlying purposes and policies of this title are: .... 2. To discover and make
effective the intent of a decedent in distribution of his property.
A.R.S. 14-1102(B)(2).

In the instant case, there is no question as to the testator's intent. We hold that a
testator who uses a preprinted form, and in his own handwriting fills in the blanks
by designating his beneficiaries and apportioning his estate among them and signs
it, has created a valid holographic will. Such handwritten provisions may draw
testamentary context from both the printed and the handwritten language on the
form. We see no need to ignore the preprinted words when the testator clearly did
not, and the statute does not require us to do so.

We find the words of an early California decision persuasive:

If testators are to be encouraged by a statute like ours to draw their own wills, the
courts should not adopt upon purely technical reasoning a construction which would
result in invalidating such wills ....
4.

Roxas vs. De Jesus Jr., 134 SCRA 245 (What kind of date is sufficient?)

UTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the
probate of the holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de
Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the
brother of the deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he delivered to the
lower court a document purporting to be the holographic Will of the deceased
Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the
hearing of the probate of the holographic Win on July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he

found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages
21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written
and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The
will is dated "FEB./61 " and states: "This is my win which I want to be respected
although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro

Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter
dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de
Jesus. Both recognized the handwriting of their mother and positively Identified her
signature. They further testified that their deceased mother understood English, the
language in which the holographic Will is written, and that the date "FEB./61 " was
the date when said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"

assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed through force, intimidation
and/or under duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have intended the said
Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in
accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia
that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated
as required by Article 810 of the Civil Code. She contends that the law requires that
the Will should contain the day, month and year of its execution and that this should
be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order
and disallowed the probate of the holographic Will on the ground that the word
"dated" has generally been held to include the month, day, and year. The
dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas

de Jesus, is hereby disallowed for not having been executed as required by the law.
The order of August 24, 1973 is hereby set aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic
Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article
810 of the Civil Code which reads:

ART. 810.
A person may execute a holographic will which 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.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article
688 of the Old Civil Code require the testator to state in his holographic Win the
"year, month, and day of its execution," the present Civil Code omitted the phrase
Ao mes y dia and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic Will should
prevail.

Respondent Luz Henson on the other hand submits that the purported holographic
Will is void for non-compliance with Article 810 of the New Civil Code in that the
date must contain the year, month, and day of its execution. The respondent
contends that Article 810 of the Civil Code was patterned after Section 1277 of the
California Code and Section 1588 of the Louisiana Code whose Supreme Courts had
consistently ruled that the required date includes the year, month, and day, and
that if any of these is wanting, the holographic Will is invalid. The respondent
further contends that the petitioner cannot plead liberal construction of Article 810
of the Civil Code because statutes prescribing the formalities to be observed in the
execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills. We
should not overlook the liberal trend of the Civil Code in the manner of execution of
Wills, the purpose of which, in case of doubt is to prevent intestacy

The underlying and fundamental objectives permeating the provisions of the law on
wigs 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 sufficien 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 modem tendency with respect to the formalities
in the execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27

SCRA 327) he emphasized that:

xxx

xxx

xxx

... The law has a tender regard for the will of the testator expressed in his last will
and testament on the ground that any disposition made by the testator is better
than that which the law can make. For this reason, intestate succession is nothing
more than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in

order to guard against fraud and bad faith but without undue or unnecessary
curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will
has been executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Win should
be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx

xxx

xxx

... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the
inclination should, in the absence of any suggestion of bad faith, forgery or fraud,
lean towards its admission to probate, although the document may suffer from
some imperfection of language, or other non-essential defect. ... (Leynez v. Leynez
68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose sought
to be accomplished by such requisite is actually attained by the form followed by
the testator.

The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as

that of two competing Wills executed on the same day, or of a testator becoming
insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720).
There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad
faith and fraud in its execution nor was there any substitution of Wins and
Testaments. There is no question that the holographic Will of the deceased Bibiana
Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and
in a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the testamentary capacity at the
time of the execution of said Will. The objection interposed by the oppositorrespondent Luz Henson is that the holographic Will is fatally defective because the
date "FEB./61 " appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month,
and year of its execution. However, when as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and pressure and the authenticity
of the Will is established and the only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid compliance with Article 810 of the Civil
Code, probate of the holographic Will should be allowed under the principle of
substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is

REVERSED and SET ASIDE and the order allowing the probate of the holographic Will
of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.
5.
Labrador vs. Court of Appeals, 187 SCRA 170 (Where in the will must the date
appear?)
N THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.
SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondentsappellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one
Melecio Labrador is dated, as provided for in Article 8102 of the New Civil Code.

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under Original
Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica,
Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs),
Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the
probate docketed as Special Proceeding No. 922-I of the alleged holographic will of
the late Melecio Labrador.

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but

substituted by his heirs), and Gaudencio Labrador filed an opposition to the petition
on the ground that the will has been extinguished or revoked by implication of law,
alleging therein that on September 30, 1971, that is, before Melecio's death, for the

consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of

Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and
Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been
cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said
parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio
and Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel
of land which Sagrado allegedly had already acquired by devise from their father
Melecio Labrador under a holographic will executed on March 17, 1968, the
complaint for annulment docketed as Civil Case No. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial
court rendered a joint decision dated February 28, 1985, allowing the probate of the
holographic will and declaring null and void the Deed of Absolute sale. The court a
quo had also directed the respondents (the defendants in Civil Case No. 934-I) to
reimburse to the petitioners the sum of P5,000.00 representing the redemption
price for the property paid by the plaintiff-petitioner Sagrado with legal interest
thereon from December 20, 1976, when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on March
10, 1988 modified said joint decision of the court a quo by denying the allowance of
the probate of the will for being undated and reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the
Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.

Petitioners now assign the following errors committed by respondent court, to wit:

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE
OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is
quoted as follows:

ENGLISH INTERPRETATION OF THE WILL OF THE

LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ

I First Page

This is also where it appears in writing of the place which is assigned and shared or
the partition in favor of SAGRADO LABRADOR which is the fishpond located and
known place as Tagale.

And this place that is given as the share to him, there is a measurement of more or
less one hectare, and the boundary at the South is the property and assignment
share of ENRICA LABRADOR, also their sister, and the boundary in the West is the
sea, known as the SEA as it is, and the boundary on the NORTH is assignment
belonging to CRISTOBAL LABRADOR, who likewise is also their brother. That because
it is now the time for me being now ninety three (93) years, then I feel it is the right
time for me to partition the fishponds which were and had been bought or acquired
by us, meaning with their two mothers, hence there shall be no differences among
themselves, those among brothers and sisters, for it is I myself their father who am
making the apportionment and delivering to each and everyone of them the said
portion and assignment so that there shall not be any cause of troubles or
differences among the brothers and sisters.

II Second Page

And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the
month of March, 17th day, in the year 1968, and this decision and or instruction of
mine is the matter to be followed. And the one who made this writing is no other
than MELECIO LABRADOR, their father.

Now, this is the final disposition that I am making in writing and it is this that should
be followed and complied with in order that any differences or troubles may be
forestalled and nothing will happen along these troubles among my children, and
that they will be in good relations among themselves, brothers and sisters;

And those improvements and fruits of the land; mangoes, bamboos and all coconut
trees and all others like the other kind of bamboo by name of Bayog, it is their right
to get if they so need, in order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers and sisters.

III THIRD PAGE

And that referring to the other places of property, where the said property is
located, the same being the fruits of our earnings of the two mothers of my
children, there shall be equal portion of each share among themselves, and or to be
benefitted with all those property, which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am
here hereof manifesting of the truth and of the fruits of our labor which their two
mothers, I am signing my signature below hereof, and that this is what should be
complied with, by all the brothers and sisters, the children of their two mothers
JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who
made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance
with Article 810.1wphi1 It is worthy of note to quote the first paragraph of the
second page of the holographic will, viz:

And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the
month of March, 17th day, in the year 1968, and this decision and or instruction of
mine is the matter to be followed. And the one who made this writing is no other
than MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be placed in
the will. The only requirements are that the date be in the will itself and executed in
the hand of the testator. These requirements are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when the testator
and his beneficiaries entered into an agreement among themselves about "the
partitioning and assigning the respective assignments of the said fishpond," and
was not the date of execution of the holographic will; hence, the will is more of an
"agreement" between the testator and the beneficiaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will as "an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his
estate, to take effect after his death."

Respondents are in error. The intention to show 17 March 1968 as the date of the
execution of the will is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral
act of Melecio Labrador who plainly knew that what he was executing was a will.
The act of partitioning and the declaration that such partitioning as the testator's
instruction or decision to be followed reveal that Melecio Labrador was fully aware
of the nature of the estate property to be disposed of and of the character of the
testamentary act as a means to control the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000 representing the
redemption price as erroneous, respondent court's conclusion is incorrect. When
private respondents sold the property (fishpond) with right to repurchase to Navat
for P5,000, they were actually selling property belonging to another and which they
had no authority to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to immediately regain possession
of the property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988
is hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and
ALLOWED probate. The private respondents are directed to REIMBURSE the
petitioners the sum of Five Thousand Pesos (P5,000.00).

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Art. 806
Cruz v. Villasor, 54 SCRA 31, 26 November 1973
APITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu
allowing the probate of the last will a testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said
instrument was execute without the testator having been fully informed of the
content thereof, particularly as to what properties he was disposing and that the
supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will
and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit
"E") was executed in accordance with law, particularly Articles 805 and 806 of the
new Civil Code, the first requiring at least three credible witnesses to attest and
subscribe to the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses must appear before the notary
public to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand, private respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial compliance with the
legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to
sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro,
100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in
front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary
of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.)
Consequently, if the third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of himself. This cannot be
done because he cannot split his personality into two so that one will appear before
the other to acknowledge his participation in the making of the will. To permit such
a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any
illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function
would defeated if the notary public were one of the attesting instrumental
witnesses. For them he would be interested sustaining the validity of the will as it
directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize
fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130).
There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas
Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.
496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also
Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose
of the law in this jurisdiction or are not decisive of the issue herein because the
notaries public and witnesses referred to aforecited cases merely acted as
instrumental, subscribing attesting witnesses, and not as acknowledging witnesses.
He the notary public acted not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806.
Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of Article 80
be requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before
the notary public to acknowledge the will. The result would be, as has been said,
that only two witnesses appeared before the notary public for or that purpose. In
the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set aside.

g.

Art. 811, Witnesses to Holographic Wills

1.
Azoala vs. Singson, 109 Phil 102; Codoy vs. Calugay, 312 SCRA 333 (How
many witnesses do you really need?)

V.

FUNDAMENTAL PROVISIONS ON WILLS:

a.
Art. 812-813, Placement Disposition vis--vis Testators Signature; Art. 814,
Cancellation of Dispositions

1.

Kalaw vs. Relova, 132 SCRA 327 (Is it cancellation or revocation?)

b.

Art. 815-817, Rule 77, Rules of Court, Conflicts of Law on Wills

1.
In re Estate of Johnson, 39 Phil 156 (What is the applicable law when it comes
to the determination of the intrinsic validity of a will?)