In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,

vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Facts:
1. On September 19, 1917, the CFI of Cebu admitted to probate Ana Abangan's will executed July,
1916.
2. Said document consists of two sheets, the first of which contains all of the disposition of
the testatrix, duly signed at the bottom by Martin Montalban (under the direction of the testatrix)
and by three witnesses. The second sheet contains only the attestation clause duly signed
at the bottom by the three instrumental witnesses.
3. Neither of these sheets is signed on the left margin by the testatrix and the three
witnesses, nor numbered by letters; and these omissions, according to appellants'
contention, are defects whereby the probate of the will should have been denied.
4. We are of the opinion that the will was duly admitted to probate.
5. Held: In requiring that each and every sheet of the will should also be signed on the left margin
by the testator and three witnesses in the presence of each other, Act No. 2645 evidently has
for its object to avoid the substitution of any of said sheets, thereby changing the testator's
dispositions.
6. But when these dispositions are wholly written on only one sheet signed at the bottom
by the testator and three witnesses, their signatures on the left margin of said sheet
would be completely purposeless.
7. In requiring this signature on the margin, the statute took into consideration, the case of a will
written on several sheets and must have referred to the sheets which the testator and the
witnesses do not have to sign at the bottom.
8. A different interpretation would assume that the statute requires that this sheet, already signed
at the bottom, be signed twice. We cannot attribute to the statute such an intention.
9. If the signatures at the bottom of the sheet guaranties its authenticity, another signature
on its left margin would be unneccessary;
10. In requiring that each and every page of a will must be numbered correlatively in letters, it is
likewise clear that the object of the law is to know whether any sheet of the will has been
removed. But, when all the dispositive parts of a will are written on one sheet only, the
object of the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
11. Referring specially to the signature of the testatrix, we can add that same is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and
not to the testator since the latter does not attest, but executes, the will.
12. We hold that in a will consisting of two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and three witnesses and the second
contains only the attestation clause and is signed also at the bottom by the three witnesses, it is
not necessary that both sheets be further signed on their margins by the testator and the
witnesses, or be paged.
13. 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.
14. Therefore the laws on this subject should be interpreted in such a way as to attain these
primordal ends.
15. 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 frustative
of the testator's last will, must be disregarded.
lawphil.net

NENITA DE VERA SUROZA, complainant,

vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

Facts:
1. Mauro Suroza, a corporal in the U.S. Army married Marcelina Salvador in 1923.
2. They were childless.
3. They reared a boy named Agapito who used the surname Suroza and who considered them as
his parents as shown in his 1945 marriage contract with Nenita de Vera.
4. Rollo of Testate Case showing that Agapito was 5 years old when Mauro married Marcelina.
5. Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two banks.
6. Agapito and Nenita begot a child named Lilia. Agapito also became a soldier. He was
disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an
incompetent.
7. In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also
to be his guardian in another proceeding. Arsenia tried to prove that Nenita was living
separately from Agapito and that Nenita admitted to Marcelina that she was unfaithful to
Agapito.
8. Later, Sps. Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when
a few days old, was entrusted to Arsenia de la Cruz and who was later delivered to
Marcelina Salvador who brought her up as a supposed daughter of Agapito and as her
granddaughter.
9. Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by
Agapito.
10. Marcelina supposedly executed a notarial will in Manila when she was 73 years old. That
will which is in English was thumbmarked by her. She was illiterate. Her letters in English
to the Veterans Administration were also thumbmarked by her. In that wig, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn.
11. Marina Paje, alleged to be a laundrywoman of Marcelina and the executrix in her will filed
with the Court of Rizal a petition for the probate of Marcelina's alleged will. The case was
assigned to Judge Reynaldo P. Honrado.
12. As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline
S. Yuipco, to hear the evidence.
13. In an order, Judge Honrado appointed Marina as administratrix. On the following day, Judge
Honrado issued two orders directing the Merchants Banking Corporation and the Bank of
America to allow Marina to withdraw the sum of P10,000 from the savings accounts of

Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of
the passbooks, to deliver them to Marina.
14. Upon motion of Marina, Judge Honrado issued another order instructing a deputy sheriff to eject
the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina
in possession thereof.
15. That order alerted Nenita to the existence of the testamentary proceeding for the
settlement of Marcelina's estate. She and the other occupants of the decedent's house
filed a motion to set aside the order ejecting them.
16. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he
has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not
Agapito's daughter nor the decedent's granddaughter.
17. In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn,
were claiming Marcelina's estate, he issued an order probating her supposed will wherein
Marilyn was the instituted heiress.
18. Later, Nenita filed in the testate case an omnibus petition "to set aside proceedings.
Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina,
that the will was not duly executed and attested, that it was procured by means of undue
influence employed by Marina and Marilyn and that the thumbmarks of the testatrix were
procured by fraud or trick.
19. Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of
Agapito and that Marina was not qualified to act as executrix.
20. To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina,
who swore that the alleged will was falsified.
21. Not content with her motion to set aside the ejectment order she filed the next day an opposition
to the probate of the will and a counter-petition for letters of administration. In that opposition,
Nenita assailed the due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews. Nenita was not aware of the decree of
probate.
22. To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece,
who swore that Marcelina never executed a will.
23. Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was
not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that
Agapito was not Marcelina's son but merely an anak-anakan who was not legally adopted.
24. Nenita V. Suroza reiterated her contention that the alleged will is void because Marcelina
did not appear before the notary and because it is written in English which is not known
to her.
25. Eventually, Judge Honrado in his order after noting that the executrix had delivered the estate to
Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.
26. About ten months later, Nenita charged Judge Honrado with having probated the
fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix

was illiterate as shown by the fact that she affixed her thumbmark to the will and that she
did not know English, the language in which the win was written. (In the decree of probate
Judge Honrado did not make any finding that the will was written in a language known to the
testatrix.)
27. Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix
had a son named Agapito, he did not take into account the consequences of such a
preterition.
28. Nenita disclosed that she talked several times with Judge Honrado and informed him that the
testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy
and that she was not the next of kin of the testatrix.
29. Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her
cohorts to withdraw from various banks the deposits Marcelina.
30. She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her
access to the record of the probate case by alleging that it was useless for Nenita to
oppose the probate since Judge Honrado would not change his decision. Nenita also said
that Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case might be
decided in her favor.
31. Evangeline branded as a lie Nenita's imputation that she prevented Nenita from having access
to the record of the testamentary proceeding. Evangeline was not the custodian of the record.
Evangeline " strongly, vehemently and flatly denied" Nenita's allegations.
32. Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore
that the testatrix and the three attesting witnesses did not appear before him and that he
notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer
would bring to the notary the testatrix and the witnesses but the lawyer never complied with his
commitment.
33. Held: We hold that disciplinary action should be taken against respondent judge for his
improper disposition of the testate case which might have resulted in a miscarriage of
justice because the decedent's legal heirs and not the instituted heiress in the void win
should have inherited the decedent's estate.
34. A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order
or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable
negligence or ignorance.
35. In this case, respondent judge, on perusing the will and noting that it was written in English and
was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is
void.
a. In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it
was stated that the will was read to the testatrix "and translated into Filipino
language". That could only mean that the will was written in a language not
known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator. Thus, a will written in
English, which was not known to the Igorot testator, is void and was
disallowed.

36. The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the
"testator" instead of "testatrix".
37. Had respondent judge been careful and observant, he could have noted not only the anomaly
as to the language of the will but also that there was something wrong in instituting the
supposed granddaughter as sole heiress and giving nothing at all to her supposed father
who was still alive.
38. Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent
judge could have noticed that the notary was not presented as a witness.
39. In spite of the absence of an opposition, respondent judge should have personally conducted
the hearing on the probate of the will so that he could have ascertained whether the will was
validly executed.
40. Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.

AUREA MATIAS, petitioner,

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

Facts:
1. On May 15, 1952, Aurea Matias initiated a special proceedings with a petition for the
probate of a document purporting to be the last will and testament of her aunt, Gabina
Raquel, who died single on May 8, 1952, at the age of 92 years.
2. The heir to the entire estate of the deceased except the properties bequeathed to her
other niece and nephews is, pursuant to said instrument, Aurea Matias, likewise,
appointed therein as executrix thereof, without bond.
3. Basilia Salud, a first cousin of the deceased, opposed the probate of her alleged will, and, after
appropriate proceedings, the court, presided over by respondent Judge, issued an order
sustaining said opposition and denying the petition for probate.
4. Subsequently, Aurea Matias brought the matter on appeal to this Court where it is now pending
decision.
5. Basilia Salud was appointed as special administratrix thereof, to "be assisted and advised by
her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and adviser of Basilia
Salud." Said order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon
Plata . . . who is hereby appointed as co-administrator."
6. Aurea Matins asked that the appointment order be set aside and that she be appointed
special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia
Salud is over eighty (80) years of age, totally blind and physically incapacitated to
perform the duties of said office, and that said movant is the universal heiress of the

deceased and the person appointed by the latter as executrix of her alleged will. This
motion was denied/
7. However, on March 17, 1956, Basilia Salud tendered her resignation as special administratrix by
reason of physical disability, due to old age, and recommended the appointment, in her place, of
Victorina Salud.
8. Before any action could be taken thereon, Aurea Matias sought a reconsideration of said order.
Moreover, she expressed her conformity to said resignation, but objected to the appointment, on
account of Victorinas antagonism to Aurea Matias. Victorina Salud having been the principal
and most interested witness for the opposition to the probate of the alleged will of the
deceased and proposed that the administration of her estate be entrusted to the Philippine
National Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar
institution authorized by law therefor, should the court be reluctant to appoint the movant as
special administratrix of said estate.
9. Later, respondents Ramon Plata and Victorina Salud requested authority to collect the
rents due, or which may be due, to the estate of the deceased and to collect all the
produce of her lands.
10. Later, respondents filed another motion praying for permission to sell the palay of the
deceased then deposited in different rice mills in the province of Cavite.
11. Petitioner instituted the present action against Judge Gonzales, and Victorina Salud and Ramon
Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon the
ground that the same had been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.
12. Held: In support of this pretense, it is argued that petitioner should have preference in
the choice of special administratrix of the estate of the decedent, she (petitioner) being
the universal heiress to said estate and, the executrix appointed in the alleged will of the
deceased;
13. That until its final disallowance which has not, as yet, taken place she has a special interest
in said estate, which must be protected by giving representation thereto in the management of
said estate; that, apart from denying her any such representation, the management was given
to persons partial to her main opponent;
14. And that Ramon Plata and Victorina Salud were authorized to collect the rents due to the
deceased and the produce of her lands, as well to sell her palay, without previous notice to the
petitioner herein.
15. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, the record
shows that petitioner herein received copy of said motion the date after that set for the hearing
thereof. Again, notice of the order of respondent Judge postponing said hearing was not
served on petitioner herein.
16. In her motion, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the
appointment of Ramon Plata, as special administrator of said estate. Petitioner had,
therefore, no notice that her main opponent, Basilia Salud, and the latter's principal
witness, Victorina Salud, would be considered for the management of said. As a
consequence, said petitioner had no opportunity to object to the appointment, to this
effect, denied due process to said petitioner.

17. Said order was issued with evident knowledge of the physical disability of Basilia Salud.
18. Soon after the institution of said Special Proceedings, an issue arose between Aurea Matias
and Basilia Salud regarding the person to be appointed special administrator of the estate of the
deceased. The former proposed Horacio Rodriguez, whereas the latter urged the appointment
of Victorina Salud.
19. Although the probate of the alleged will and testament of Gabina Raquel was denied by
respondent Judge, the order to this effect is not, as yet, final and executory. It is pending review
on appeal taken by Aurea Matias. The probate of said alleged will being still within realm of
legal possibility, Aurea Matias has as the universal heir and executrix designated in
said instrument a special interest to protect during the pendency of said appeal.
20. Thus, in the case of Roxas vs. Pecson, this Court held that a widow, designated as executrix in
the alleged will and testament of her deceased husband, the probate of which had denied in an
order pending appeal, "has . . . the same beneficial interest after the decision of the court
disapproving the will, which is now pending appeal, because the decision is not yet final and
may be reversed by the appellate court."
21. In the case at bar there is only one (1) special administration, the powers of which shall be
exercised jointly by two special co-administrators. In short, the Roxas case is not squarely in
point. Moreover, there are authorities in support of the power of courts to appoint several special
co-administrators.
22. Wherefore, the orders complained of are hereby annulled and set aside. The lower court should
re-hear the matter of removal of Horacio Rodriguez and appointment of special administrators,
after due notice to all parties concerned, for action in conformity with the views expressed
herein, with costs against respondents Victorina Salud and Ramon Plata. It is so ordered.
AUREA MATIAS, Petitioner-Appellant,
- versus
BASILIA SALUD, Oppositor-Appellee.
Facts:
1. Admittedly the deceased left no ascendants or descendants, and according to the
proponents she executed the testamentary document on January 27, 1950, in the City of
Cavite, in the presence of Modesta Gonzales, Felipa Samala and Lourdes Samonte, who
signed as instrumental witnesses, and of attorney Ricardo Agbunag, who prepared the
instrument.
2. The document in question appears to be composed of three pages. On the lower half of
the second page, preceding the attestation clause, appears the signature Gabina Raquel
which is apparently of admitted authenticity. Alongside it is a smudge in violet ink, with
blurred ridge lines, claimed by the proponents to be a thumbmark affixed by the
testatrix.
3. In the purported testament, most of the properties of the testatrix (appraised at over
P160,000.00) are bequeathed to her niece Aurea Matias, in recompense for the
services rendered to me for more than 30 years; some legacies are made to her other
nephews and nieces surnamed Salud and Matias;
4. Aurea Matias is appointed executrix without bond. Below the signature Gabina Raquel set
at the foot of the will proper, is an attestation clause in the Spanish language (like the
will itself)
5. The testamentary capacity of the testatrix Gabina Raquel despite her ninety years of age
and her disease (herpes zoster), is conceded. It is also undisputed that she mastered
Spanish and that she could sign her name.

6. The proponents evidence is to the effect that the deceased instructed attorney Agbunag
to draft her will; that she had the witnesses summoned and received them in the ante
sala of her house; that when the witnesses were seated around a table with her and attorney
Agbunag, the will was read by the latter; that Gabina Raquel manifested conformity
thereto and thumbmarked the foot of the document and the left margin of each page.
7. Allegedly upon Agbunags insistence, she attempted to sign with his fountain pen, but
was only able to affix the signature at the end of the testamentary dispositions
because immediately after, she dropped the pen, grasping her right shoulder and
complaining of pain.
8. After 20 minutes, attorney Agbunag, seeing that Gabina Raquel could not proceed,
instructed Lourdes Samonte to write Gabina Raquel by Lourdes Samonte next to each
thumbmark, and thereafter witnesses Lourdes Samonte, Felipa Samala and Modesta
Gonzalez signed, in that order, at the foot of the attestation clause and at the left margin of
each page.
9. It is to be noted that witness Modesta Gonzalez, a 64-year old woman did not testify, as she
was found to be suffering from high blood pressure, and proponents expert evidence was to
the effect that her memory was impaired, and unusual excitement might cost her life.
10. The probate having been opposed by Basilia Salud, a niece of Gabina Raquel, the case was
set for trial.
11. From the adverse decision of the trial court, the proponent appealed directly to this Court,
because the value of the properties involved in the litigation exceeded P50,000.00.
12. The trial court refused credence to the evidence for the proponents on the basis of the
expert testimony of Captain Jose Fernandez of the Philippine Constabularys Criminal.
13. After careful consideration of the testimony on record, we are of the opinion that the facts
adverted to by the expert for the contestant do not clearly support the conclusions
drawn by him.
14. Thus, his assertion that the fingerprints were affixed after writing the name of the testatrix
appears to be an inference drawn from the fact that the ink of the writing failed to spread
along the ridge lines of the fingerprints.
a. This conclusion obviously failed to take into account the fact that the evidence is that
some 10 or 20 minutes elapsed between the affixing of the fingerprints and the
writing of the marginal signatures, due to the fact that they were not written
until after a long wait for the testatrixs attack of pain to subside.
b. There was sufficient time for the fingerprint to dry, and recognized authorities on the
matter point out that ink lines over rubber stamps will spread out if the stamp
is not dry.
c. And if the stamp impression is allowed to dry thoroughly before the writing is
written over it, the ink will not run out as it does on a damp ink line. To such effect,
the only composition of the rubber stamp ink no doubt contributes. Thus, while the
spreading out or running out of the writing ink along the stamping ink lines
proves that the writing was made later, the absence of spread does not prove
that stamping ink lines were made after the writing was done.
15. As to the alleged forgery of Samontes signature in page 3
a. The lighter shade of the underlying characters strongly indicates that the overwriting
was made to correct ink failure or other imperfection in the first writing.
16. And assuming it to be true that in page 3 of the will, Samonte signed after Samala, while in
the other pages she had signed ahead a. such occasional departure from the order usually followed does not signify
that the execution of the testament was in any way abnormal or fraudulent.
17. Rationale: We do not venture to impute bias to the experts introduced during the trial, but
we hasten to state that the positive testimony of the three attesting witnesses ought to
prevail over the expert opinions which cannot be mathematically precise but which on
the contrary, are subject to inherent infirmities.
18. The almost conclusive weight of the testimony of attesting witnesses when it provides that if
the will is contested, all the subscribing witnesses present in the Philippines and not

19.

20.

21.

22.

23.
24.

insane, must be produced and examined, and the death, absence, or insanity or any of
them must be satisfactorily shown to the court.
We are aware that the bequest of the greater portion of decedents estate in favor of
proponent Aurea Matias is contained in the first page of the contested will, while the only
authentic signature of the deceased appeared in the second page;
a. but the appointment of proponent as executrix of the will without bond
appearing in the very same page fully bespeaks the affection of the testatrix for
the proponent, who had lived with the deceased, helped and served her for thirty
years, and morally confirms the contested bequest.
Modesta Gonzalez: But while Modesta Gonzalez was not placed on the stand, the
proponent made no secret of her whereabouts, nor of the reason why she was not asked to
testify: the record shows that 2 doctors agreed that Gonzalez was suffering from
hypertension, that she was in the danger zone, and might collapse and die as a
consequence of a little excitement on her part.
a. The court would not like to assume responsibility for whatever might happen to this
woman.
Finally, the contestant urges that the fingermark of the testatrix can not be regarded
as her valid signature since it does not show distinct identifying ridge lines; and
thence, that the attestation clause, transcribed earlier in this opinion, should be held
defective because it fails to state that Lourdes Samonte signed for the testator.
a. This Court has repeatedly held that the legal requisite that the will should be signed
by the testator is satisfied by a thumbprint or other mark affixed by him; and
that where such mark is affixed by the decedent, it is unnecessary to state in
the attestation clause that another person wrote the testators name at his
request.
(In comparison to cross mark signature case) In the case now before us, it was shown
that the herpes zoster(disease) that afflicted the right arm and shoulder of testatrix
made writing a difficult and painful act, to the extent that, after writing one signature
on the second page, she dropped the pen because of an attack of pain that lasted
many minutes and evidently discourage attempts to sign.
As to the clarity of the ridge impressions, it is so dependent on aleatory circumstances
(consistency of the ink, overinking, slipping of the finger, etc.) as to require a skill that can be
expected of very few persons;
It is to be conceded that where a testator employs an unfamiliar way of signing, and both the
attestation clause and the will are silent on the matter, such silence is a factor to be
considered against the authenticity of the testament; but the failure to describe the
unusual signature by itself alone is not sufficient to refuse probate when the evidence
for the proponent fully satisfies the court that the will was executed and witnessed as
required by law.

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Facts:
1. This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado.
The will is written in the Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and
all them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.
2. The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado.
3. Antero Mercado is alleged to have written a cross immediately after his name.
4. Held: In our opinion, the attestation clause is fatally defective for failing to state that
Antero Mercado caused Atty. Florentino Javier to write the testator's name under his
express direction.
5. The herein petitioner argues, however, that there is no need for such recital because the cross
written by the testator after his name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage.
6. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the other cases.
7. It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we are
not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a thumbmark.
8. What has been said makes it unnecessary for us to determine there is a sufficient recital
in the attestation clause as to the signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and of each other.

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONGNOBLE, petitioner, vs. ALIPIO ABAJA and NOEL ABELLAR, respondents.

Facts:
1. Abada died sometime in May 1940. His widow Paula Toray died sometime in September 1943.
Both died without legitimate children.
2. On 13 September 1968, Alipio C. Abaja filed a petition for the probate of the last will and
testament of Abada. Abada allegedly named as his testamentary heirs his natural
children Eulogio Abaja and Rosario Cordova. Alipio is the son of Eulogio.
3. Nicanor Caponong opposed the petition on the ground that Abada left no will when he died in
1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed
for the following reasons: (1) it was not executed and attested as required by law; (2) it was not
intended as the last will of the testator; and (3) it was procured by undue and improper pressure
and influence on the part of the beneficiaries.
4. Citing the same grounds invoked by Caponong, the alleged intestate heirs of Abada also
opposed the petition. The oppositors are the nephews, nieces and grandchildren of Abada and
Toray.
5. Later, Alipio filed another petition for the probate of the last will and testament of Toray and the
same was opposed by Caponong et al.
6. On 20 September 1968, Caponong filed a petition praying for the issuance in his name of letters
of administration of the intestate estate of Abada and Toray.

7. RTC admitted to probate the will of Toray. Since the oppositors did not file any motion for
reconsideration, the order allowing the probate of Torays will became final and executory.
8. In an order the RTC-Kabankalan designated Belinda Caponong-Noble Special Administratrix of
the estate of Abada and Toray. Caponong-Noble moved for the dismissal of the petition for
probate of the will of Abada. The RTC-Kabankalan denied the motion.
9. Issue:
a. What laws apply to the probate of the last will of Abada;
b. Whether the will of Abada requires acknowledgment before a notary public;
c. Whether the will must expressly state that it is written in a language or dialect known
to the testator;
d. Whether the will of Abada has an attestation clause, and if so, whether the attestation
clause complies with the requirements of the applicable laws;
e. Whether Caponong-Noble is precluded from raising the issue of whether the will of
Abada is written in a language known to Abada;
f.

Whether evidence aliunde may be resorted to in the probate of the will of Abada.

10. Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of
1889 or the Old Civil Code.
11. The matter in dispute in the present case is the attestation clause in the will of Abada.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following:
(1) The will must be written in the language or dialect known by the testator;
(2) The will must be signed by the testator, or by the testators name written by some other
person in his presence, and by his express direction;
(3) The will must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other;
(4) The testator or the person requested by him to write his name and the instrumental
witnesses of the will must sign each and every page of the will on the left margin;
(5) The pages of the will must be numbered correlatively in letters placed on the upper part
of each sheet;
(6) 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 of the will, or
caused some other person to write his name, under his express direction, in the
presence of three witnesses, and the witnesses witnessed and signed the will and all
pages of the will in the presence of the testator and of each other.

12. Caponong-Noble asserts that the will of Abada does not indicate that it is written in a
language or dialect known to the testator. Further, she maintains that the will is not
acknowledged before a notary public.
a. However, the Code of Civil Procedure repealed Article 685 of the Old Civil Code.
Under the Code of Civil Procedure, the intervention of a notary is not necessary in
the execution of any will. Therefore, Abadas will does not require acknowledgment
before a notary public.
13. Caponong-Noble points out that nowhere in the will can one discern that Abada knew the
Spanish language. She alleges that such defect is fatal and must result in the
disallowance of the will.
a. Nevertheless, Caponong-Nobles contention must still fail. There is no statutory
requirement to state in the will itself that the testator knew the language or
dialect used in the will. This is a matter that a party may establish by proof aliunde.
14. We agree with Caponong-Noble that the doctrine of estoppel does not apply in probate
proceedings.
15. Caponong-Noble further argues that Alipio, in his testimony, has failed, among others, to show
that Abada knew or understood the contents of the will and the Spanish language used in the
will.
a. Alipio testified that Abada used to gather Spanish-speaking people in their
place. This sufficiently proves that Abada speaks the Spanish language.
16. Caponong-Noble proceeds to point out several defects in the attestation
clause. Caponong-Noble alleges that the attestation clause fails to state the number of
pages on which the will is written.
a. The pages are numbered correlatively with the letters ONE and TWO as can be
gleaned from the phrase las cuales estan paginadas correlativamente con las letras
UNO y DOS.
17. Caponong-Noble further alleges that the attestation clause fails to state expressly that
the testator signed the will and its every page in the presence of three witnesses.
a. The attestation clauseclearly states that Abada signed the will and its every page in
the presence of the witnesses.
18. However, Caponong-Noble is correct in saying that the attestation clause does not indicate the
number of witnesses.
a. While the attestation clause does not state the number of witnesses, a close
inspection of the will shows that three witnesses signed it.
19. This Court has applied the rule on substantial compliance even before the effectivity of the New
Civil Code. In Dichoso de Ticson v. De Gorostiza,[30] the Court recognized that there are two
divergent tendencies in the law on wills, one being based on strict construction and the other on
liberal construction. In Dichoso, the Court noted that Abangan v. Abangan,[31] the basic case on
the liberal construction, is cited with approval in later decisions of the Court.

20. We rule to apply the liberal construction in the probate of Abadas will. Abadas will
clearly shows four signatures: that of Abada and of three other persons. It is reasonable
to conclude that there are three witnesses to the will. The question on the number of the
witnesses is answered by an examination of the will itself and without the need for
presentation of evidence aliunde.
21. Finally, Caponong-Noble alleges that the attestation clause does not expressly state the
circumstances that the witnesses witnessed and signed the will and all its pages in the
presence of the testator and of each other. This Court has ruled:
a. Precisionoflanguageinthedraftingofanattestationclauseisdesirable.However,itisnot
imperativethataparrotlikecopyofthewordsofthestatutebemade.Itissufficientiffrom
thelanguageemployeditcanreasonablybededucedthattheattestationclausefulfillswhat
thelawexpectsofit.
b. The last part of the attestation clause shows that: in its witness, every one of us
also signed in our presence and of the testator. This clearly shows that the
attesting witnesses witnessed the signing of the will of the testator, and that each
witness signed the will in the presence of one another and of the testator.

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.

Facts:
1. The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view
of Articles 805 and 806 of the Civil Code.
a. A will whose attestation clause does not contain the number of pages on which
the will is written is fatally defective. A will whose attestation clause is not
signed by the instrumental witnesses is fatally defective. And perhaps most
importantly, a will which does not contain an acknowledgment, but a
mere jurat, is fatally defective. Any one of these defects is sufficient to deny
probate. A notarial will with all three defects is just aching for judicial rejection.
2. The case stems from a petition for probate filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo. Petitioner is the son of the
cousin of the decedent.
3. The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent.

4. The petition was opposed by Geralda Aida Castillo, who represented herself as the attorneyin-fact of "the 12 legitimate heirs" of the decedent. Geralda Castillo claimed that the will is
a forgery, and that the true purpose of its emergence was so it could be utilized as a
defense in several court cases filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all centering on petitioners right to
occupy the properties of the decedent.
5. It also asserted that contrary to the representations of petitioner, the decedent was actually
survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad.
Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo,
who died in 1965, and the mother of a legitimate child, Asuncion E. Igsolo.
6. Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of
pages used in a notarial will be stated in the attestation clause" is merely directory, rather
than mandatory, and thus susceptible to what he termed as "the substantial compliance
rule."
7. As admitted by petitioner himself, the attestation clause fails to state the number of
pages of the will. There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the attestation
clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.
8. In Uy Coque, the Court noted that among the defects of the will in question was the failure of
the attestation clause to state the number of pages contained in the will. In ruling that the will
could not be admitted to probate, the Court made the following consideration which remains
highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the
attestation clause is obvious; the document might easily be so prepared that the removal
of a sheet would completely change the testamentary dispositions of the will and in
the absence of a statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the top of the following
sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation
clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with
much greater difficulty."
9. Held: Even a cursory examination of the Will, will readily show that the attestation does not
state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
10. The law referred to is article 618 of the Code of Civil Procedure which requires that the
attestation clause shall state the number of pages or sheets upon which the will is written,
which requirement has been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed. The ratio
decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination of
the will itself.
11. However, in the appeal at bench, the number of pages used in the will is not stated in any
part of the Will. The will does not even contain any notarial acknowledgment wherein the
number of pages of the will should be stated.

a. 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.
12. CA: considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded
13. The failure of the attestation clause to state the number of pages on which the will was
written remains a fatal flaw. 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.
14. Following Caneda, there is substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised of.
a. However, in this case, there could have been no substantial compliance with
the requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of pages
which comprise the will.
b. Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to
convey property post mortem in the manner established in the will. The
transcendent legislative intent, even as expressed in the cited comments of the
Code Commission, is for the fruition of the testators incontestable desires,
and not for the indulgent admission of wills to probate.
15. The Court could thus end here and affirm the Court of Appeals. However, an examination of
the will itself reveals a couple of even more critical defects that should necessarily lead to its
rejection.
16. For one, the attestation clause was not signed by the instrumental witnesses. While
the signatures of the instrumental witnesses appear on the left-hand margin of the will, they
do not appear at the bottom of the attestation clause which after all consists of their
averments before the notary public.
a. There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
b. The attestation clause is "a memorandum of the facts attending the execution of the
will" required by law to be made by the attesting witnesses, and it must necessarily
bear their signatures. An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
c. The respective intents behind these two classes of signature are distinct from each
other. The signatures on the left-hand corner of every page signify, among others,
that the witnesses are aware that the page they are signing forms part of the will. On
the other hand, the signatures to the attestation clause establish that the witnesses
are referring to the statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will.

d. An unsigned attestation clause results in an unattested will. Even if the

instrumental witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do appear on the page were
directed towards a wholly different avowal.
e. It is the witnesses, and not the testator, who are required under Article 805 to state
the number of pages used upon which the will is written. The only proof in the will
that the witnesses have stated these elemental facts would be their signatures
on the attestation clause.
f.

Thus, the subject will cannot be considered to have been validly attested to by
the instrumental witnesses, as they failed to sign the attestation clause.

17. The requirement under Article 806 that "every will must be acknowledged before a
notary public by the testator and the witnesses" has also not been complied with.
a. An acknowledgment is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signor actually declares to the notary
that the executor of a document has attested to the notary that the same is his/her
own free act and deed.
b. A jurat is that part of an affidavit where the notary certifies that before him/her, the
document was subscribed and sworn to by the executor. Yet even if we consider
what was affixed by the notary public as a jurat, the will would nonetheless remain
invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The acknowledgment
made in a will provides for another all-important legal safeguard against spurious
wills or those made beyond the free consent of the testator.
c. The acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as their
own free act or deed. Such declaration is under oath and under pain of perjury,
thus allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent of the
testator.
d. It also provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she had
designated in the will.
e. A notarial will that is not acknowledged before a notary public by the testator
and the witnesses is fatally defective, even if it is subscribed and sworn to
before a notary public.

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

Facts:
1. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of
November, 1908, leaving a last will and testament bearing date March 2, 1907.
2. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have
been witnesses to the execution thereof. By the terms of said will Pedro Barut received the
larger part of decedent's property.
3. The original will appears on page 3 of the record and is in the Ilocano dialect. Its
translation into Spanish appears at page 11.
4. After disposing of her property the testatrix revoked all former wills by her made. She also
stated in said will that being unable to read or write, the same had been read to her by
Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to
sign her name to it as testatrix.
5. The probate of the will was contested and opposed by a number of the relatives of the
deceased on various grounds, among them that a later will had been executed by the
deceased. Proceeding for the probate of this later will were pending at the time. The
evidence of the proponents and of the opponents was taken by the court in both cases for
the purpose of considering them together.
6. In the case before us the learned probate court found that the will was not entitled to
probate upon the sole ground that the handwriting of the person who it is alleged
signed the name of the testatrix to the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will than that of the person whose
handwriting it was alleged to be.
7. We do not believe that the mere dissimilarity in writing thus mentioned by the court is
sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her request and in her presence
and in the presence of all the witnesses to the will. It is immaterial who writes the name of
the testatrix provided it is written at her request and in her presence and in the
presence of all the witnesses to the execution of the will.
8. Under the law relating to the execution of a will it is necessary that the person who signs
the name of the testatrix must afterwards sign his own name; and that, in view of the
fact that, in the case at bar, the name signed below that of the testatrix as the person
who signed her name, being, from its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is accordingly invalid, such fact
indicating that the person who signed the name of the testatrix failed to sign his own.
a. We do not believe that this contention can be sustained. Section 618 of the Code of
Civil Procedure reads as follows:
No will, except as provided in the preceding section, shall be valid to pass any estate,
real or personal, nor charge or effect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other person in his presence, and by
his expenses direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of each. . . .

9. This is the important part of the section under the terms of which the court holds that the
person who signs the name of the testator for him must also sign his own name The
remainder of the section reads:
The attestation shall state the fact that the testator signed the will, or caused it to be signed
by some other person, at his express direction, in the presence of three witnesses, and that
they attested and subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is proven that the will
was in fact signed and attested as in this section provided.
10. From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not.
The important thing is that it clearly appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and that they attested and subscribed it
in her presence and in the presence of each other.
11. That is all the statute requires. It may be wise as a practical matter that the one who signs
the testator's name signs also his own; but that it is not essential to the validity of the will.
12. Whether one person or another signed the name of the testatrix in this case is
absolutely unimportant so far as the validity of her will is concerned. The plain wording
of the statute shows that the requirement laid down by the trial court, if it did lay down, is
absolutely unnecessary under the law; and the reasons underlying the provisions of the
statute relating to the execution of wills do not in any sense require such a provision. From
the standpoint of language it is an impossibility to draw from the words of the law the
inference that the persons who signs the name of the testator must sign his own name also.
The law requires only three witnesses to a will, not four.
13. Nor is such requirement found in any other branch of the law. The name of a person
who is unable to write may be signed by another by express direction to any
instrument known to the law. There is no necessity whatever, so far as the validity of
the instrument is concerned, for the person who writes the name of the principal in
the document to sign his own name also.
14. The main thing to be established in the execution of the will is the signature of the
testator. If that signature is proved, whether it be written by himself or by another at
his request, it is none the less valid, and the fact of such signature can be proved as
perfectly and as completely when the person signing for the principal omits to sign
his own name as it can when he actually signs. To hold a will invalid for the lack of the
signature of the person signing the name of the principal is, in the particular case, a
complete abrogation of the law of wills, as it rejects and destroys a will which the
statute expressly declares is valid.
15. Aside from the presentation of an alleged subsequent will the contestants in this case have
set forth no reason whatever why the will involved in the present litigation should not be
probated. The due and legal execution of the will by the testatrix is clearly established by the
proofs in this case. Upon the facts, therefore, the will must be probated. As to the defense
of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We
there held that said later will not the will of the deceased.

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al.,

Facts:
1. It appears on record that the last Will and Testament which is sought to be probated, is
written in the Spanish language and consists of two (2) typewritten pages.
2. The first page is signed by Juan Bello and under his name appears typewritten "Por la
testadora Anacleta Abellana
3. and on the second page appears the signature of three (3) instrumental witnesses Blas
Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the
signature of T. de los Santos and below his signature is his official designation as the notary
public who notarized the said testament.
4. On the first page on the left margin of the said instrument also appear the signatures of the
instrumental witnesses.
5. On the second page, which is the last page of said last Will and Testament, also appears the
signature of the three (3) instrumental witnesses and on that second page on the left margin
appears the signature of Juan Bello under whose name appears handwritten the following
phrase, "Por la Testadora Anacleta Abellana'.
6. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos.
7. Issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la
Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of
law prescribing the manner in which a will shall be executed?
8. Held: The present law, Article 805 of the Civil Code, in part provides as follows:
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 witness in
the presence of the testator and of one another.
9. The law requires that the testator himself sign the will, or if he cannot do so, the
testator's name must be written by some other person in his presence and by his
express direction.
10. Where the testator does not know how, or is unable, to sign, it will not be sufficient that one
of the attesting witnesses signs the will at the testator's request, the notary certifying thereto,
but it is necessary that the testator's name be written by the person signing in his
stead in the place where he could have signed if he knew how or was able to do so,
and this in the testator's presence and by his express direction; so that a will signed
in a manner different than that prescribed by law shall not be valid and will not be
allowed to be probated.

11. Under the law now in force, the witness Naval A. Vidal should have written at the bottom of
the will the full name of the testator and his own name in one forms given above. He did not
do so, however, and this is failure to comply with the law is a substantial defect which affects
the validity of the will and precludes its allowance, notwithstanding the fact that no one
appeared to oppose it.
12. In other cases, we held that the important thing is that it clearly appears that the name of the
testatrix was signed at her express direction; it is unimportant whether the person who
writes the name of the testatrix signs his own or not.
13. In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written
under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a
failure to comply with the express requirement in the law that the testator must
himself sign the will, or that his name be affixed thereto by some other person in his
presence and by his express direction.
14. The will of the deceased Anacleta Abellana may not be admitted to probate.

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO 3`, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.

Facts:
1. The petitioner attached the alleged last will and testament of the late Dorotea Perez. Written
in the Cebuano-Visayan dialect, the will consists of two pages.
2. The first page contains the entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand margin by the three (3)
instrumental witnesses.
3. The second page which contains the attestation clause and the acknowledgment is signed at
the end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.
4. Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the petitioner's
evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified on its genuineness and due
execution.
5. The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order
denying the probate of the will of Dorotea Perez for want of a formality in its execution.

6. Instead of complying with the order of the trial court, the petitioner filed a manifestation
and/or motion, ex parte praying for a thirty-day period within which to deliberate on any step
to be taken as a result of the disallowance of the will. He also asked that the ten-day period
required by the court to submit the names of intestate heirs with their addresses be held in
abeyance.
7. The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be
acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station.
8. Issue: For the validity of a formal notarial will, does Article 805 of the Civil Code require that
the testatrix and all the three instrumental and attesting witnesses sign at the end of the will
and in the presence of the testatrix and of one another?
9. Held: The respondent Judge: it is not enough that only the testatrix signs at the "end" and
the three subscribing witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another because the attesting witnesses to a will attest
not merely the will itself but also the signature of the testator.
10. On the other hand, the petitioner maintains that the law does not make it a condition
precedent that the signatures of the subscribing witnesses should be specifically located at
the end of the wig after the signature of the testatrix.
11. Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its
end by the testator himself or by the testator's name written by another person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
12. It must be noted that the law uses the terms attested and subscribed.
a. 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.
b. 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.
13. Insofar as the requirement of subscription is concerned, it is our considered view that
the will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.
14. The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.
15. The law is to be liberally construed.
16. The objects of attestation and of subscription were fully met and satisfied in the present case
when the instrumental witnesses signed at the left margin of the sole page which contains all
the testamentary dispositions, especially so when the will was properly Identified by
subscribing witness Vicente Timkang to be the same will executed by the testatrix. There
was no question of fraud or substitution behind the questioned order.

17. We have examined the will in question and noticed that the attestation clause failed to state
the number of pages used in writing the will. This would have been a fatal defect were it
not for the fact that, in this case, it is discernible from the entire wig that it is really
and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses.
18. In Singson v. Florentino: The ratio decidendi of these cases seems to be that the attestation
clause must contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself.
19. Icasiano v. Icasiano : The law should not be so strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of a single witness over whose conduct she had
no control where the purpose of the law to guarantee the Identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and
the evidence on record attests to the fun observance of the statutory requisites. Otherwise,
'witnesses may sabotage the will by muddling or bungling it or the attestation clause.
20. Allow the probate of the wig

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Facts:
1. Natividad Icasiano and Enrique Icasiano filed an opposition and petitioned to have
themselves appointed as a special administrator, to which proponent objected.
2. On March 19, 1959, the petitioner proponent commenced the introduction of his evidence;
but on June 1, 1959, he filed a motion for the admission of an amended and supplemental
petition, alleging that the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed duplicate, which he
allegedly found only on or about May 26, 1959.
3. On June 17, 1959, oppositors filed their joint opposition to the admission of the amended
and supplemental petition. Thereafter, the parties presented their respective evidence, and
after several hearings the court issued the order admitting the will and its duplicate to
probate.
4. The evidence presented for the petitioner is to the effect that the late Josefa Villacorte
executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano, published before and attested by three instrumental witnesses, namely: attorneys
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on the same
date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that
the will was actually prepared by attorney Fermin Samson, who was also present during the

execution and signing of the decedent's last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl.
5. Of the said three instrumental witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing,
and both testified as to the due execution and authenticity of the said will. So did the Notary
Public before whom the will was acknowledged by the testatrix and attesting witnesses, and
also attorneys Fermin Samson, who actually prepared the document.
6. The records show that the original of the will, which was surrendered simultaneously with the
filing of the petition consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on
page three (3) thereof; but the duplicate copy attached to the amended and supplemental
petition is signed by the testatrix and her three attesting witnesses in each and every page.
7. The testimony presented by the proponents of the will tends to show that the original of the
will and its duplicate were subscribed at the end and on the left margin of each and every
page thereof by the testatrix herself and attested and subscribed by the three mentioned
witnesses in the testatrix's presence and in that of one another as witnesses (except for the
missing signature of attorney Natividad on page three (3) of the original);
8. Witness Natividad who testified on his failure to sign page three (3) of the original, admits
that he may have lifted two pages instead of one when he signed the same, but affirmed that
page three (3) was signed in his presence.
9. Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of
the testatrix in the duplicate are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and pressure because the
testatrix was deceived into adopting as her last will and testament the wishes of those who
will stand to benefit from the provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions and dispositions
thereof.
10. We have examined the record and are satisfied, as the trial court was, that the testatrix
signed both original and duplicate copies of the will spontaneously, on the same in the
presence of the three attesting witnesses, the notary public who acknowledged the will; and
Atty. Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the
witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they
were actually signed; that the attestation clause is also in a language known to and spoken
by the testatrix and the witnesses.
11. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix
appearing in the duplicate original were not written by the same had which wrote the
signatures in the original will leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but principally because of the
paucity of the standards used by him to support the conclusion that the differences between
the standard and questioned signatures are beyond the writer's range of normal scriptural
variation.
12. Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are
more favored than others is proof of neither. Diversity of apportionment is the usual reason
for making a testament; otherwise, the decedent might as well die intestate.

13. On the question of law, we hold that the inadvertent failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was ratified by testatrix and
all three witnesses.
14. The law should not be so strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the full observance of the statutory
requisites.
15. That the failure of witness Natividad to sign page three (3) was entirely through pure
oversight is shown by his own testimony as well as by the duplicate copy of the will, which
bears a complete set of signatures in every page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise evidence that no one was aware of the
defect at the time.
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan,
Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the signatures
of the three witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So
ordered with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

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 respondent-appellee, Manuel B. Lugay, who is the supposed
executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.

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

JOSE ANTONIO GABUCAN, petitioner-appellant,

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

Facts:
1. 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.
2. The CFI in its "decision" dismissed the proceeding (erroneously characterizes as an
"action").
3. 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.
4. The probate court assumed that the notarial acknowledgment of the said will is subject to the
thirty-centavo documentary stamp tax.
5. 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.
6. That procedure may be implied from the provision of section 238 that the non-admissibility
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."
7. Thus, it was held that the documentary stamp may be affixed at the time the taxable
document is presented in evidence.

8. The lack of the documentary stamp on a document does not invalidate such document.

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

vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:

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

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

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL, administratrixappellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Facts:
1. The Court of First Instance of Manila admitted to probate the alleged will and testament of
the deceased Carlos Gil.

2. It will be noted that the attestation clause 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.
3. 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.
4. The Supreme Court fully affirmed the decision, laying down the following doctrine:
a. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.

Garcia vs. Vasquez

Facts: 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 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; that the will, which was already prepared, was first
read "silently" by the testatrix herself before she signed it; 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; 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. 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. The witnesses to the will, two of whom are
fellow Visayans, admitted their relationship or closeness to Precilla. It was Precilla who
instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an
important document. 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; then he fetched witness Decena from the latters
haberdashery shop a few doors away and brought him to, the house the testatrix. And when the
will was actually executed Precilla was present.
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), and that it was "above normal in
pressure", denoting a possible glaucoma, a disease that leads to blindness. As to the conditions of
her right eye, Dr. Tamesis declared:
"Q
But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3C 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."

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

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

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

"Q

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

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

How about the right eye?

"A
The same, although the vision on the right eye is even better than the left eye." (pages 34.
85. t.s.n., hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965
certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under
medical supervision up to 1963 with apparently good vision", the doctor had this to
say:jgc:chanrobles.com.ph
"Q

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

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

"Q

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

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

The vision in the right eye was corrected?

"A

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

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

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first
hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully
establish the fact that notwithstanding the operation and removal of the cataract in her left eye
and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for
viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with
the condition of her eyesight in August, 1960, and there is no evidence that it had improved by
29 December 1960, Gliceria del Rosario was incapable f reading, and could not have read
the provisions of the will supposedly signed by her on 29 December 1960. It is worth noting
that the instrumental witnesses stated that she read the instrument "silently" (t.s.n., pages 164165). 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.
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), 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.
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.