Succession August 11

SUCCESSION | August 11 | 1
G.R. No. L-28946
January 16, 1929
In
re
estate
of
SIXTO
vs.
SALMING PIRASO, ET AL., opponents-appellees.
Piraso,
deceased.
ACOP, petitioner-appellant,
Gibbs
and
McDonough
Adolfo A. Scheerer for appellees.
Ozaeta
and
Roman
for
appellant.
ROMUALDEZ, J.:
This appeal was taken from the judgment of the Court of First Instance of Benguet,
denying the probate of the instrument Exhibit A, as the last will and testament of the
deceased Piraso.
The proponent-appellant assigns the following as alleged errors of the lower court:
1. In holding that in order to be valid the will in question should have been
drawn up in the Ilocano dialect.
2. In not holding that the testator Piraso did not know the Ilocano dialect well
enough to understand a will drawn up in said dialect.
3. In refusing to admit the will in question to probate.
The fundamental errors assigned refer chiefly to the part of the judgment which reads
as follows:
The evidence shows that Piraso knew how to speak the Ilocano dialect,
although imperfectly, and could make himself understood in that dialect, and
the court is of the opinion that his will should have been written in that
dialect.
Such statements were not unnecessary for the decision of the case, once it has been
proved without contradiction, that the said deceased Piraso did not know English, in
which language the instrument Exhibit A, alleged to be his will, is drawn. Section 628
of the Code of Civil Procedure, strictly provides that:
"No will, except as provides in the preceding section" (as to wills executed by a
Spaniard or a resident of the Philippine Islands, before the present Code of Civil
Procedure went into effect), "shall be valid to pass any estate, real or personal, nor
charge or affect the same, unless it be written in the language or dialect known by the
testator," etc. (Emphasis supplied.) Nor can the presumption in favor of the will
established by this court in Abangan vs. Abangan (40 Phil., 476), to the effect that the
testator is presumed to know the dialect of the locality where he resides, unless there
is proof to the contrary, even he invoked in support of the probate of said document
Exhibit A, as a will, because, in the instant case, not only is it not proven that English
is the language of the City of Baguio where the deceased Piraso lived and where
Exhibit A was drawn, but that the record contains positive proof that said Piraso knew
no other language than the Igorrote dialect, with a smattering of Ilocano; that is, he
did not know the English language in which Exhibit A is written. So that even if such a
presumption could have been raised in this case it would have been wholly
contradicted and destroyed.
We consider the other question raised in this appeal needless and immaterial to the
adjudication of this case, it having been, as it was, proven, that the instrument in
question could not be probated as the last will and testament of the deceased Piraso,
having been written in the English language with which the latter was unacquainted.
Such a result based upon solidly established facts would be the same whether or not it
be technically held that said will, in order to be valid, must be written in the Ilocano
dialect; whether or not the Igorrote or Inibaloi dialect is a cultivated language and
used as a means of communication in writing, and whether or not the testator Piraso
knew the Ilocano dialect well enough to understand a will written in said dialect. The
fact is, we repeat, that it is quite certain that the instrument Exhibit A was written in
English which the supposed testator Piraso did not know, and this is sufficient to
invalidate said will according to the clear and positive provisions of the law, and
inevitably prevents its probate.
The judgment appealed from is affirmed, with the costs of this instance against the
appellant. So ordered.
presence of each other, it appears that, if the signatures at the bottom of the sheet
guaranties its authenticity, another signature on its left margin would be unneccessary;
and if they do not guaranty, same signatures, affixed on another part of same sheet,
would add nothing. We cannot assume that the statute regards of such importance the
place where the testator and the witnesses must sign on the sheet that it would
consider that their signatures written on the bottom do not guaranty the authenticity of
the sheet but, if repeated on the margin, give sufficient security.
G.R. No. L-13431
November 12, 1919
In
re
will
of
Ana
Abangan.
GERTRUDIS
ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon
Sotto
M. Jesus Cuenco for appellee.
for
In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of Act
No. 2645 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.
appellants.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first
of which contains all of the disposition of the testatrix, duly signed at the bottom by
Martin Montalban (in the name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. 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. We are of the opinion that the will was duly
admitted to probate.
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
(which is the one applicable in the case) evidently has for its object (referring to the
body of the will itself) to avoid the substitution of any of said sheets, thereby changing
the testator's dispositions. But when these dispositions are wholly written on only one
sheet signed at the bottom by the testator and three witnesses (as the instant case),
their signatures on the left margin of said sheet would be completely purposeless. In
requiring this signature on the margin, the statute took into consideration,
undoubtedly, 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. 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. As these signatures must be written by the testator and the witnesses in the
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in
the one accompanying the will in question, the signatures of the testatrix and of the
three witnesses on the margin and the numbering of the pages of the sheet are
formalities not required by the statute. Moreover, 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.
Synthesizing our opinion, 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.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the
testarix knew the dialect in which the will is written. But the circumstance appearing in
the will itself that same was executed in the city of Cebu and in the dialect of this
locality where the testatrix was a neighbor is enough, in the absence of any proof to
the contrary, to presume that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with
costs against the appellants. So ordered.
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.
Agapito and Nenita begot a child named Lilia who became a medical technologist and
went abroad. 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 in Special
Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo
of CA-G.R. No. 08654-R).
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 she (Nenita) admitted to Marcelina that she
was unfaithful to Agapito (pp. 61-63, Record of testate case).
A.M. No. 2026-CFI December 19, 1981

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.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language not
known to the illiterate testatrix, and which is probably aforged will because she and the
attesting witnesses did not appear before the notary as admitted by the notary
himself?
That question arises under the pleadings filed in the testate case and in the certiorari
case in the Court of Appeals which reveal the following tangled strands of human
relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They
were childless. 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 (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case
showing that Agapito was 5 years old when Mauro married Marcelina in 1923).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed
Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has
been staying in a veteran's hospital in San Francisco or Palo Alto, California (p. 87,
Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan
begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia
de la Cruz (apparently a girl friend of Agapito) and who was later delivered to
Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and
as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the
surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito.
She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati,
apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, 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 (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the
time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati,
Rizal. She owned a 150-square meter lot and house in that place. She acquired the lot
in 1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97,
CA Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg,
mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal,
Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was
assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court,
Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes
taken at the hearing before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix.
On the following day, April 1, 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.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975,
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.
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 on April 18 in the said proceeding a motion to set aside the order of April 11
ejecting them. 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 (pp. 52-68,
Record of testate case). Later, they questioned the probate court's jurisdiction to issue
the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than
Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her
supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition for administration and preliminary
injunction". 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.
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 (pp. 83-91,
Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of
Marcelina, who swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next
day, April 25, 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
(pp. 113-121, Record). Nenita was not aware of the decree of probate dated April 23,
1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's
niece, who swore that Marcelina never executed a win (pp. 124-125, Record).
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 sonbut merely an anakanakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the
issuance of letters of administration because of the non-appearance of her counsel at
the hearing. She moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents,
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 (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by
Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed a
case to annul" the probate proceedings (p. 332, Record). That case, Civil Case No.
24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to Judge
Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the executrix
had delivered the estate to Marilyn, and that the estate tax had been paid, closed the
testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this
Court, 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.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix
had a son named Agapito (the testatrix's supposed sole compulsory and legal heir),
who was preterited in the will, did not take into account the consequences of such a
preterition.
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.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal
and her failure to do so did not entitle her to resort to the special civil action of
certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her
cohorts to withdraw from various banks the deposits Marcelina.
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to
dismiss the administrative case for having allegedly become moot and academic.
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. Evangeline allegedly advised Nenita to desist from
claiming the properties of the testatrix because she (Nenita) had no rights thereto and,
should she persist, she might lose her pension from the Federal Government.
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.
Judge Honrado in his brief comment did not deal specifically with the allegations of the
complaint. He merely pointed to the fact that Nenita did not appeal from the decree of
probate and that in a motion dated July 6, 1976 she asked for a thirty day period
within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the
latter did not mention Evangeline in her letter dated September 11, 1978 to President
Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) 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 charge that she (Evangeline) said that the sum of ten thousand pesos was
needed in order that Nenita could get a favorable decision. Evangeline also denied that
she has any knowledge of Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to attention of this Court in
the Court Administrator's memorandum of September 25, 1980. The case was referred
to Justice Juan A. Sison of the Court of Appeals for investigation, report and
recommendation. He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a
petition for certiorari and prohibition wherein she prayed that the will, the decree of
probate and all the proceedings in the probate case be declared void.
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.
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 (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance for
serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice
or a wrongful intent, not a mere error of judgment. "For serious misconduct to exist,
there must be reliable evidence showing that the judicial acts complained of were
corrupt or inspired by an intention to violate the law, or were in persistent disregard of
well-known legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge
would be inexcusably negligent if he failed to observe in the performance of his duties
that diligence, prudence and circumspection which the law requires in the rendition of
any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107,
119).
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.
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". (p. 16,
Record of testate case). 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 (Acop vs. Piraso, 52 Phil. 660).
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".
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.
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.
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.
Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine
equivalent to his salary for one month is imposed on respondent judge (his compulsory
retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic because she is no
longer employed in the judiciary. Since September 1, 1980 she has been assistant city
fiscal of Surigao City. She is beyond this Court's disciplinary jurisdiction (Peralta vs.
Firm Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).
SO ORDERED.
STREET, J.:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of
one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter
in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date
appointed for the hearing, the proponent of the will introduced one of the three
attesting witnesses who testified with details not necessary to be here specified
that the will was executed with all necessary external formalities, and that the testator
was at the time in full possession of disposing faculties. Upon the latter point the
witness was corroborated by the person who wrote the will at the request of the
testator. Two of the attesting witnesses were not introduced, nor was their absence
accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition introduced a single witness
whose testimony tended to show in a vague and indecisive manner that at the time the
will was made the testator was so debilitated as to be unable to comprehend what he
was about.
After the cause had been submitted for determination upon the proof thus presented,
the trial judge found that the testator at the time of the making of the will was of
sound mind and disposing memory and that the will had been properly executed. He
accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the will,
and the only errors here assigned have reference to the two following points, namely,
first, whether a will can be admitted to probate, where opposition is made, upon the
proof of a single attesting witness, without producing or accounting for the absence of
the other two; and, secondly, whether the will in question is rendered invalid by reason
of the fact that the signature of the testator and of the three attesting witnesses are
written on the right margin of each page of the will instead of the left margin.
Upon the first point, while it is undoubtedly true that an uncontested will bay be proved
by the testimony of only one of the three attesting witnesses, nevertheless in
Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate
examination of the American and English authorities that when a contest is instituted,
all of the attesting witnesses must be examined, if alive and within reach of the
process of the court.
G.R. No. 15566
September 14, 1921
EUTIQUIA
AVERA, petitioner-appellee,
vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar
Garcia and Jose Garcia,objectors-appellants.
Dionisio
Villanueva
Marcelino Lontok for appellee.
for
appellants.
In the present case no explanation was made at the trial as to why all three of the
attesting witnesses were not produced, but the probable reason is found in the fact
that, although the petition for the probate of this will had been pending from December
21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest
was entered until the very day set for the hearing; and it is probable that the attorney
for the proponent, believing in good faith the probate would not be contested, repaired
to the court with only one of the three attesting witnesses at hand, and upon finding
that the will was contested, incautiously permitted the case to go to proof without
asking for a postponement of the trial in order that he might produce all the attesting
witnesses.
Although this circumstance may explain why the three witnesses were not produced, it
does not in itself supply any basis for changing the rule expounded in the case above
referred to; and were it not for a fact now to be mentioned, this court would probably
be compelled to reverse this case on the ground that the execution of the will had not
been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court
either upon the submission of the cause for determination in that court or upon the
occasion of the filing of the motion for a new trial. Accordingly it is insisted for the
appellee that this question cannot now be raised for the first time in this court. We
believe this point is well taken, and the first assignment of error must be declared not
be well taken. This exact question has been decided by the Supreme Court of California
adversely to the contention of the appellant, and we see no reason why the same rule
of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reason why the appellate tribunals are disinclined to permit
certain questions to be raised for the first time in the second instance. In the first place
it eliminates the judicial criterion of the Court of First Instance upon the point there
presented and makes the appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a new trial. In the second
place, it permits, if it does not encourage, attorneys to trifle with the administration of
justice by concealing from the trial court and from their opponent the actual point upon
which reliance is placed, while they are engaged in other discussions more simulated
than real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood as laying
down any hard and fast rule that would prove an embarrassment to this court in the
administration of justice in the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have escaped the attention
of all persons concerned in the litigation below; and this is necessary if this court is to
contribute the part due from it in the correct decision of the cases brought before it.
What we mean to declare is that when we believe that substantial justice has been
done in the Court of First Instance, and the point relied on for reversal in this court
appears to be one which ought properly to have been presented in that court, we will
in the exercise of a sound discretion ignore such question relates a defect which might
have been cured in the Court of First Instance if attention had been called to it there.
In the present case, if the appellant had raised this question in the lower court, either
at the hearing or upon a motion for a new trial, that court would have had the power,
and it would have been is duty, considering the tardy institution of the contest, to have
granted a new trial in order that all the witnesses to the will might be brought into
court. But instead of thus calling the error to the attention of the court and his
adversary, the point is first raised by the appellant in this court. We hold that this is too
late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that case
that the proponent of the will had obtained an order for a republication and new trial
for the avowed purpose of presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless subsequently failed without any
apparent reason to take their testimony. Both parties in that case were therefore fully
apprised that the question of the number of witnesses necessary to prove the will was
in issue in the lower court.
The second point involved in this case is whether, under section 618 of the Code of
Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in
this jurisdiction that the names of the testator and the instrumental witnesses should
be written on the left margin of each page, as required in said Act, and not upon the
right margin, as in the will now before us; and upon this we are of the opinion that the
will in question is valid. It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin of each and every
page; and it is undeniable that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully complied with. The same
doctrine is also deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial it would
be absurd to suppose that the Legislature could have attached any decisive importance
to them. The provision to the effect that the signatures of the testator and witnesses
shall be written on the left margin of each page rather than on the right margin
seems to be this character. So far as concerns the authentication of the will, and of
every part thereof, it can make no possible difference whether the names appear on
the left or no the right margin, provided they are on one or the other. In
Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this
court declared a will void which was totally lacking in the signatures required to be
written on its several pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a
will was likewise declared void which contained the necessary signatures on the margin
of each leaf ( folio), but not in the margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page, and
the only point of deviation from the requirement of the statute is that these signatures
appear in the right margin instead of the left. By the mode of signing adopted every
page and provision of the will is authenticated and guarded from possible alteration in
exactly the same degree that it would have been protected by being signed in the left
margin; and the resources of casuistry could be exhausted without discovering the
slightest difference between the consequences of affixing the signatures in one margin
or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra, where only
the leaves, or alternate pages, were signed and not each written page; for as observed
in that case by our late lamented Chief Justice, it was possible that in the will as there
originally executed by the testratrix only the alternative pages had been used, leaving
blanks on the reverse sides, which conceivably might have been filled in subsequently.
The controlling considerations on the point now before us were well stated In Re will of
Abangan (40 Phil., 476, 479), where the court, speaking through Mr. Justice Avancea,
in a case where the signatures were placed at the bottom of the page and not in the
margin, said:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution o will and testaments
and to guarantee their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact that it is not
the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must
be disregarded.
In the case before us, where ingenuity could not suggest any possible prejudice to any
person, as attendant upon the actual deviation from the letter of the law, such
deviation must be considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment
appealed from will be affirmed. It is so ordered, with costs against the appellants.
G.R. No. L-21755
December 29, 1924
In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA

NAYVE, petitioner-appellee,
vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
Manuel
M.
Felix U. Calleja for appellee.
Calleja
for
appellants.
ROMUALDEZ, J.:
This is a proceeding for the probate of the will of the deceased Antonio Mojal instituted
by his surviving spouse, Filomena Nayve. The probate is opposed by Leona Mojal and
Luciana Aguilar, sister and niece, respectively, of the deceased.
The Court of First Instance of Albay, which tried the case, overruled the objections to
the will, and ordered the probate thereof, holding that the document in controversy
was the last will and testament of Antonio Mojal, executed in accordance with law.
From this judgment the opponents appeal, assigning error to the decree of the court
allowing the will to probate and overruling their opposition.
The will in question, Exhibit A, is composed of four sheets with written matter on only
side of each, that is, four pages written on four sheets. The four sides or pages
containing written matter are paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4," successively.
Each of the first two sides or pages, which was issued, was signed by the testator and
the three witnesses on the margin, left side of the reader. On the third page actually
used, the signatures of the three witnesses appear also on the margin, left side of the
reader, but the signature of the testator is not on the margin, but about the middle of
the page, at the end of the will and before the attestation clause. On the fourth page,
the signatures of the witnesses do not appear on the margin, but at the bottom of the
attestation clause, it being the signature of the testator that is on the margin, left side
of the reader.
The defects attributed to the will are:
(a) The fact of not having been signed by the testator and the witnesses on each and
every sheet on the left margin; (b) the fact of the sheets of the document not being
paged with letters; (c) the fact that the attestation clause does not state the number of
sheets or pages actually used of the will; and (d) the fact that the testator does not
appear to have signed all the sheets in the presence of the three witnesses, and the
latter to have attested and signed all the sheets in the presence of the testator and of
each other.
As to the signatures on the margin, it is true, as above stated, that the third page
actually used was signed by the testator, not on the left margin, as it was by the
witnesses, but about the middle of the page and the end of the will; and that the
fourth page was signed by the witnesses, not on the left margin, as it was by the
testator, but about the middle of the page and at the end of the attestation clause.
In this respect the holding of this court in the case of Avera vs. Garcia and
Rodriguez (42 Phil., 145), is applicable, wherein the will in question was signed by the
testator and the witnesses, not on the left, but right, margin. The rule laid down in that
case is that the document contained the necessary signatures on each page, whereby
each page of the will was authenticated and safeguarded against any possible
alteration. In that case, the validity of the will was sustained, and consequently it was
allowed to probate.
Applying that doctrine to the instant case, we hold that, as each and every page used
of the will bears the signatures of the testator and the witnesses, the fact that said
signatures do not all appear on the left margin of each page does not detract from the
validity of the will.lawphi1.net
Turning to the second defect alleged, that is to say, the fact that the sheets of the
document are not paged with letters, suffice it to cite the case of Unson vs. Abella (43
Phil., 494), where this court held that paging with Arabic numerals and not with letters,
as in the case before us, is within the spirit of the law and is just as valid as paging
with letters.
As to the proposition that the attestation clause does not state the number of sheets or
pages of the will, which is the third defect assigned, it must be noted that the last
paragraph of the will here in question and the attestation clause, coming next to it, are
of the following tenor:
In witness whereof, I set my hand unto this will here in the town
of Camalig, Albay, Philippine Islands, this 26th day of November,
nineteen hundred and eighteen, composed of four sheets,
including the next:
ANTONIO
MOJAL
PEDRO
CARO
SILVERIO
MORCO
ZOILO
MASINAS
As may be seen, the number of sheets is stated in said last paragraph of the will. It is
true that in the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it was held that
the attestation clause must state the number of sheets or pages composing the will;
but when, as in the case before us, such fact, while it is not stated in the attestation
clause, appears at the end of the will proper, so that no proof aliunde is necessary of
the number of the sheets of the will, then there can be no doubt that it complies with
the intention of the law that the number of sheets of which the will is composed be
shown by the document itself, to prevent the number of the sheets of the will from
being unduly increased or decreased.
With regard to the last defect pointed out, namely, that the testator does not appear to
have signed on all the sheets of the will in the presence of the three witnesses, and the
latter to have attested and signed on all the sheets in the presence of the testator and
of each other, it must be noted that in the attestation clause above set out it is said
that the testator signed the will "in the presence of each of the witnesses" and the
latter signed "in the presence of each other and of the testator." So that, as to whether
the testator and the attesting witnesses saw each other sign the will, such a
requirement was clearly and sufficiently complied with. What is not stated in this
clause is whether the testator and the witnesses signed all the sheets of the will.
The act of the testator and the witnesses seeing reciprocally the signing of the will is
one which cannot be proven by the mere exhibition of the will unless it is stated in the
document. And this fact is expressly stated in the attestation clause now before us. But
the fact of the testator and the witnesses having signed all the sheets of the will may
be proven by the mere examination of the document, although it does not say
anything about this, and if that is the fact, as it is in the instant case, the danger of
fraud in this respect, which is what the law tries to avoid, does not exist.
Therefore, as in the instant case the fact that the testator and the witnesses signed
each and every page of the will is proven by the mere examination of the signatures in
the will, the omission to expressly state such evident fact does not invalidate the will
nor prevent its probate.
The order appealed from is affirmed with the costs against the appellants. So ordered.
(Signed and declared by the testator Don Antonio Mojal to be his

last will and testament in the presence of each of us, and at the
request of said testator Don Antonio Mojal, we signed this will in
the presence of each other and of the testator.)
G.R. No. L-10907
June 29, 1957
AUREA
vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.
J.
Gonzales
Venancio H. Aquino for respondents.
Orense
for
MATIAS, petitioner,
petitioner.
CONCEPCION, J.:
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon.
Primitivo L. Gonzales, as Judge of the Court of First Instance of Cavite, in connection
with Special Proceedings No. 5213 of said court, entitled "Testate Estate of the
Deceased Gabina Raquel."
On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the
probate of a document purporting to be the last will and testament of her aunt, Gabina
Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire
estate of the deceased except the properties bequeathed to her other niece and
nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and
Rafael Matias is, pursuant to said instrument, Aurea Matias, likewise, appointed
therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased,
opposed the probate of her alleged will, and, after appropriate proceedings, the court,
presided over by respondent Judge, issued an order, dated February 8, 1956,
sustaining said opposition and denying the petition for probate. Subsequently, Aurea
Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now
pending decision.
Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio
Rodriguez, as special administrator of the estate of the deceased, and the
appointment, in his stead of Ramon Plata. The motion was set for hearing on February
23, 1956, on which date the court postponed the hearing to February 27, 1956.
Although notified of this order, Rodriguez did not appear on the date last mentioned.
Instead, he filed an urgent motion praying for additional time within which to answer
the charges preferred against him by Basilia Salud and for another postponement of
said hearing. This motion was not granted, and Basilia Salud introduced evidence in
support of said charges, whereupon respondent Judge by an order, dated February 27,
1956, found Rodriguez guilty of abuse of authority and gross negligence, and,
accordingly, relieved him as special administrator of the estate of the deceased and
appointed Basilia Salud as special administratrix thereof, to "be assisted and advised
by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and
adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be
helped by Mr. Ramon Plata . . . who is hereby appointed as co-administrator."
On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set
aside and that she be appointed special co-administratrix, jointly with Horacio
Rodriguez, upon the ground that Basilia Salud is over eighty (80) years of age, totally
blind and physically incapacitated to perform the duties of said office, and that said
movant is the universal heiress of the deceased and the person appointed by the latter
as executrix of her alleged will. This motion was denied in an order dated March 10,
1956, which maintained "the appointment of the three above named persons"
Basilia Salud, Ramon Plata and Victorina Salud "for the management of the estate of
the late Gabina Raquel pending final decision on the probate of the alleged will of said
decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as
special administratrix by reason of physical disability, due to old age, and
recommended the appointment, in her place, of Victorina Salud. Before any action
could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration
of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her
conformity to said resignation, but objected to the appointment, in lieu of Basilia
Salud, of Victorina Salud, on account of her antagonism to said Aurea Matias she
(Victorina Salud) having been the principal and most interested witness for the
opposition to the probate of the alleged will of the deceased and proposed that the
administration of her estate be entrusted to the Philippine National Bank, the Monte de
Piedad, the Bank of the Philippine Islands, or any other similar institution authorized by
law therefor, should the court be reluctant to appoint the movant as special
administratrix of said estate. This motion for reconsideration was denied on March 26,
1956.
Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud
requested authority to collect the rents due, or which may be due, to the estate of the
deceased and to collect all the produce of her lands, which was granted on June 23,
1956. On June 27, 1956, said respondents filed another motion praying for permission
to sell the palay of the deceased then deposited in different rice mills in the province of
Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10,
1956, petitioner instituted the present action against Judge Gonzales, and Victorina
Salud and Ramon Plata, for the purpose of annulling the above mentioned orders of
respondent Judge, upon the ground that the same had been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
In support of this pretense, it is argued that petitioner should have preference in the
choice of special administratrix of the estate of the decedent, she (petitioner) being the
universal heiress to said estate and, the executrix appointed in the alleged will of the
deceased, that until its final disallowance which has not, as yet, taken place she has
a special interest in said estate, which must be protected by giving representation
thereto in the management of said estate; that, apart from denying her any such
representation, the management was given to persons partial to her main opponent,
namely, Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a
very close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made
special administratrix despite her obvious unfitness for said office, she being over
eighty (80) years of age and blind; that said disability is borne out by the fact that on
March 17, 1956, Basilia Salud resigned as special administratrix upon such ground;
that the Rules of Court do not permit the appointment of more than one special
administrator; that Horacio Rodriguez was removed without giving petitioner a chance
to be heard in connection therewith; and that Ramon Plata and Victorina Salud were
authorized to collect the rents due to the deceased and the produce of her lands, as
well to sell her palay, without previous notice to the petitioner herein.
Upon the other hand, respondents maintain that respondent Judge acted with the
scope of his jurisdiction and without any abuse of discretion; that petitioner can not
validly claim any special interest in the estate of the deceased, because the probate of
the alleged will and testament of the latter upon which petitioner relies has been
denied; that Horacio Rodriguez was duly notified of the proceedings for his removal;
and that Victorina Salud and Ramon Plata have not done anything that would warrant
their removal.
Upon a review of the record, we find ourselves unable to sanction fully the acts of
respondent Judge, for the following reasons:
1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal,
dated February 17, 1956, the record shows that petitioner herein received copy of said
motion of February 24, 1956, or the date after that set for the hearing thereof. Again,
notice of the order of respondent Judge, dated February 23, 1956, postponing said
hearing to February 27, 1956, was not served on petitioner herein.
2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio
Rodriguez, and the appointment of Ramon Plata, as special administrator of said
estate. Petitioner had, therefore, no notice that her main opponent, Basilia Salud, and
the latter's principal witness, Victorina Salud, would be considered for the management
of said. As a consequence, said petitioner had no opportunity to object to the
appointment of Basilia Salud as special administratrix, and of Victorina Salud, as her
assistant and adviser, and the order of February 27, 1956, to this effect, denied due
process to said petitioner.
3. Said order was issued with evident knowledge of the physical disability of Basilia
Salud. Otherwise respondent Judge would not have directed that she "be assisted and
advised by her niece Victorina Salud," and that the latter "shall always act as aide,
interpreter and adviser of Basilia Salud."
4. Thus, respondent Judge, in effect, appointed three (3) special administrators
Basilia Salud, Victorina Salud and Ramon Plata. Indeed, in the order of March 10,
1956, respondent Judge maintained "the appointment of the three (3) above-named
persons for the management of the estate of the late Gabina Raquel."
5. Soon after the institution of said Special Proceedings No. 5213, an issue arose
between Aurea Matias and Basilia Salud regarding the person to be appointed special
administrator of the estate of the deceased. The former proposed Horacio Rodriguez,
whereas the latter urged the appointment of Victorina Salud. By an order dated August
11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the
matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground
that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital,
resides In the City of Manila, the former, a practicing lawyer and a former public
prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words,
the order of resident thereof. In other words, the order of respondent Judge of
February 27, 1956, removing Rodriguez and appointing Victorina Salud to the
management of the estate, amounted to a reversal of the aforementioned order of
Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel was denied
by respondent Judge, the order to this effect is not, as yet, final and executory. It is
pending review on appeal taken by Aurea Matias. The probate of said alleged will being
still within realm of legal possibility, Aurea Matias has as the universal heir and
executrix designated in said instrument a special interest to protect during the
pendency of said appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058),
this Court held that a widow, designated as executrix in the alleged will and testament
of her deceased husband, the probate of which had denied in an order pending appeal,
"has . . . the same beneficial interest after the decision of the court disapproving the
will, which is now pending appeal, because the decision is not yet final and may be
reversed by the appellate court."
7. The record shows that there are, at least two (2) factions among the heirs of the
deceased, namely, one, represented by the petitioner, and another, to which Basilia
Salud and Victorina Salud belong. Inasmuch as the lower court had deemed it best to
appoint more than one special administrator, justice and equity demands that both
factions be represented in the management of the estate of the deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special
administrator may be appointed to administrator temporarily" the estate of the
deceased, must be considered in the light of the facts obtaining in said case. The lower
court appointed therein one special administrator for some properties forming part of
said estate, and a special administratrix for other properties thereof. Thus, there were
two (2) separate and independent special administrators. In the case at bar there is
only one (1) special administration, the powers of which shall be exercised jointly by
two special co-administrators. In short, the Roxas case is not squarely in point.
Moreover, there are authorities in support of the power of courts to appoint several
special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514;
In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby annulled and set aside. The lower
court should re-hear the matter of removal of Horacio Rodriguez and appointment of
special administrators, after due notice to all parties concerned, for action in
conformity with the views expressed herein, with costs against respondents Victorina
Salud and Ramon Plata. It is so ordered.
G.R. No. L-4067
November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro
L.
Peralta
and
Hermenegildo
A.
Prieto
for
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
petitioner.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. 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.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by "A reugo del testator" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross immediately after his name.
The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will was signed on
all the left margins of the three pages and at the end of the will by Atty. Florentino
Javier at the express request of the testator in the presence of the testator and each
and every one of the witnesses; (2) to certify that after the signing of the name of the
testator by Atty. Javier at the former's request said testator has written a cross at the
end of his name and on the left margin of the three pages of which the will consists
and at the end thereof; (3) to certify that the three witnesses signed the will in all the
pages thereon in the presence of the testator and of each other.
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, as required by section 618 of the Code of Civil Procedure. The herein
petitioner (who is appealing by way of certiorari from the decision of the Court of
Appeals) 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. 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
cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro,
81 Phil., 429.
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.
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.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So
ordered.
G.R. No. L-15153
August 31, 1960
In the Matter of the summary settlement of the Estate of the deceased

ANACLETA
ABELLANA.
LUCIO
BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T.
de
los
Climaco and Climaco for appellants.
Santos
for
appellee.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to
probate the will of one Anacleta Abellana. The case was originally appealed to the
Court of Appeals where the following assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding that
the supposed testament, Exh. "A", was signed in accordance with law; and in
admitting the will to probate.
In view of the fact that the appeal involves a question of law the said court has
certified the case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is
sought to be probated, is written in the Spanish language and consists of two
(2) typewritten pages (pages 4 and 5 of the record) double space. The first
page is signed by Juan Bello and under his name appears typewritten "Por la
testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20,
1951, Ciudad de Zamboanga', 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. On the first page on the left margin of the
said instrument also appear the signatures of the instrumental witnesses. 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'. The will is duly acknowledged before Notary Public
Attorney Timoteo de los Santos. (Emphasis supplied)
The appeal squarely presents the following 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?
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. (Emphasis supplied.)
The clause "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," is practically the same as the provisions of Section 618 of the Code of Civil
Procedure (Act No. 190) which 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 affect 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 express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of each other. . . . (Emphasis supplied).
Note that the old law as well as the new require 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. Applying this provision this Court said in the
case of Ex Parte Pedro Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of Civil
Procedure that 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 as provided in Article 695 of
the Civil Code, which, in this respect, was modified by section 618 above
referred to, 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.
Where a testator does not know how, or is unable for any reason, to sign the
will himself, it shall be signed in the following manner:
John Doe by the testator, Richard Doe; or in this form: "By the testator, John
Doe, Richard Doe." All this must be written by the witness signing at the
request of the testator.
Therefore, 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.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In
the case of Barut vs. Cabacungan, 21 Phil., 461, 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. Cases of the same import areas follows: (Ex Parte Juan Ondevilla,
13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).
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.
It appearing that the above provision of the law has not been complied with, we are
constrained to declare that the said will of the deceased Anacleta Abellana may not be
admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the petition for the
probate of the will denied. With costs against petitioner.
G.R. No. L-18979
June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO
ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose
W.
Diokno
for
Rosendo
J.
Tansinin
for
oppositor-appellant
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
petitioner-appellee.
Natividad
Icasiano.
REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano,
the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance
and admission to probate of the original, Exhibit "A" as the alleged will of Josefa
Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor
thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice
thereof to be published for three (3) successive weeks, previous to the time appointed,
in the newspaper "Manila chronicle", and also caused personal service of copies thereof
upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her
opposition; and on November 10, 1958, she petitioned to have herself appointed as a
special administrator, to which proponent objected. Hence, on November 18, 1958, the
court issued an order appointing the Philippine Trust Company as special
administrator.1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of the alleged
will.
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 (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On
June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their
joint opposition to the admission of the amended and supplemental petition, but by
order of July 20, 1959, the court admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings the court issued the
order admitting the will and its duplicate to probate. From this order, the oppositors
appealed directly to this Court, the amount involved being over P200,000.00, on the
ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in
the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa
Villacorte executed a last will and testament in duplicate at the house of her daughter
Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, 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. 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.
The latter also testified upon cross examination that he prepared one original and two
copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but
he brought only one original and one signed copy to Manila, retaining one unsigned
copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously
with the filing of the petition and marked as Exhibit "A" 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 and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and
every page.
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); that pages of the original and duplicate of said will were duly numbered;
that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the
language known to and spoken by the testatrix that the attestation clause is in a
language also known to and spoken by the witnesses; that the will was executed on
one single occasion in duplicate copies; and that both the original and the duplicate
copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the
same date June 2, 1956.
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.
Oppositors-appellants in turn introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate (Exhibit "A-1") 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, whereby
proponents-appellees stand to profit from properties held by them as attorneys-in-fact
of the deceased and not enumerated or mentioned therein, while oppositors-appellants
are enjoined not to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the portion of free
disposal.
We have examined the record and are satisfied, as the trial court was, that the
testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively)
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. 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. The expert has, in fact, used
as standards only three other signatures of the testatrix besides those affixed to the
original of the testament (Exh. A); and we feel that with so few standards the expert's
opinion and the signatures in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4
fail to show convincingly that the are radical differences that would justify the charge
of forgery, taking into account the advanced age of the testatrix, the evident variability
of her signatures, and the effect of writing fatigue, the duplicate being signed right the
original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering the standard and
challenged writings were affixed to different kinds of paper, with different surfaces and
reflecting power. On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did
not testify).
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 (see In re Butalid, 10 Phil. 27; Bugnao
vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is
the usual reason for making a testament; otherwise, the decedent might as well die
intestate. The testamentary dispositions that the heirs should not inquire into other
property and that they should respect the distribution made in the will, under penalty
of forfeiture of their shares in the free part do not suffice to prove fraud or undue
influence. They appear motivated by the desire to prevent prolonged litigation which,
as shown by ordinary experience, often results in a sizeable portion of the estate being
diverted into the hands of non-heirs and speculators. Whether these clauses are valid
or not is a matter to be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and
undue influence are mutually repugnant and exclude each other; their joining as
grounds for opposing probate shows absence of definite evidence against the validity of
the will.
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. 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. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".
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.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are otherwise
satisfied. Thus, despite the literal tenor of the law, this Court has held that a
testament, with the only page signed at its foot by testator and witnesses, but not in
the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476);
and that despite the requirement for the correlative lettering of the pages of a will, the
failure to make the first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require
satisfaction of the legal requirements in order to guard against fraud and bid faith but
without undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed
probate of original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that
the omission of one signature in the third page of the original testament was
inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court, already conferred by
the original publication of the petition for probate. The amended petition did not
substantially alter the one first filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that new interests were involved
(the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs
against appellants.
G.R. No. 1641
January 19, 1906
GERMAN
vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma,
Sumulong
and
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
JABONETA, plaintiff-appellant,
Quintos
for
appellant.
In these proceedings probate was denied the last will and testament of Macario
Jaboneta, deceased, because the lower court was of the opinion from the evidence
adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his
signature thereto in the presence of Isabelo Jena, another of the witnesses, as
required by the provisions of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particular point,
being a part of the testimony of the said Isabeo Jena:
Q.
1641
Who first signed the will?
A.
1641
I signed it first, and afterwards Aniceto and the others.
Q.
1641
Who were those others to whom you have just referred?
A.
1641
After the witness Aniceto signed the will I left the house,
because I was in a hurry, and at the moment when I was leaving I saw Julio
Javellana with the pen in his hand in position ready to sign ( en actitud de
firmar). I believe he signed, because he was at the table. . . .
Q.
1641
State positively whether Julio Javellana did or did not sign as a
witness to the will.
A.
1641
I can't say certainly, because as I was leaving the house I saw
Julio Javellana with the pen in his hand, in position ready to sign. I believe he
signed.
Q.
1641
Why do you believe Julio Javellana signed?
A.
1641
Because he had the pen in his hand, which was resting on the
paper, though I did not actually see him sign.
Q.
1641
Explain this contradictory statement.
A.
1641
After I signed I asked permission to leave, because I was in a
hurry, and while I was leaving Julio had already taken the pen in his hand, as
it appeared, for the purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand with the pen resting
on the will, moving it as if for the purpose of signing.
Q.
1641
State positively whether Julio moved his hand with the pen as
if for the purpose of signing, or whether he was signing
A.
I believe he was signing.
The truth and accuracy of the testimony of this witness does not seem to have been
questioned by any of the parties to the proceedings, but the court, nevertheless, found
the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the
following circumstances the document in question, which has been presented
for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered
that the document in question be written, and calling Julio Javellana, Aniceto
Jalbuena, and Isabelo Jena as witnesses, executed the said document as his
will. They were all together, and were in the room where Jaboneta was, and
were present when he signed the document, Isabelo Jena signing afterwards
as a witness, at his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then signed as a witness in the
presence of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave,
took his hat and left the room. As he was leaving the house Julio Javellana
took the pen in his hand and put himself in position to sign the will as a
witness, but did not sign in the presence of Isabelo Jena; but nevertheless,
after Jena had left the room the said Julio Javellana signed as a witness in the
presence of the testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the signature
of Javellana was not signed in the presence of Jena, in compliance with the provisions
of section 618 of the Code of Civil Procedure. The fact that Jena was still in the room
when he saw Javellana moving his hand and pen in the act of affixing his signature to
the will, taken together with the testimony of the remaining witnesses which shows
that Javellana did in fact there and then sign his name to the will, convinces us that
the signature was affixed in the presence of Jena. The fact that he was in the act of
leaving, and that his back was turned while a portion of the name of the witness was
being written, is of no importance. He, with the other witnesses and the testator, had
assembled for the purpose of executing the testament, and were together in the same
room for that purpose, and at the moment when the witness Javellana signed the
document he was actually and physically present and in such position with relation to
Javellana that he could see everything which took place by merely casting his eyes in
the proper direction, and without any physical obstruction to prevent his doing so,
therefore we are of opinion that the document was in fact signed before he finally left
the room.
The purpose of a statutory requirement that the witness sign in the presence
of the testator is said to be that the testator may have ocular evidence of the
identity of the instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental apprehension.
(See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the
witnesses are together for the purpose of witnessing the execution of the will, and in a
position to actually see the testator write, if they choose to do so; and there are many
cases which lay down the rule that the true test of vision is not whether the testator
actually saw the witness sign, but whether he might have seen him sign, considering
his mental and physical condition and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between the
testator and the witnesses are equally applicable in determining whether the witnesses
signed the instrument in the presence of each other, as required by the statute, and
applying them to the facts proven in these proceedings we are of opinion that the
statutory requisites as to the execution of the instrument were complied with, and that
the lower court erred in denying probate to the will on the ground stated in the ruling
appealed from.
We are of opinion from the evidence of record that the instrument propounded in these
proceedings was satisfactorily proven to be the last will and testament of Macario
Jaboneta, deceased, and that it should therefore be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation of costs,
and after twenty days the record will be returned to the court form whence it came,
where the proper orders will be entered in conformance herewith. So ordered.
G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,
AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO,
PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA,
RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA *
ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs,
JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of
the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is
the issue of whether or not the attestation clause contained in the last will and
testament of the late Mateo Caballero complies with the requirements of Article 805, in
relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will and testament
at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano
Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted
by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will. 1 It was declared therein, among other things, that the
testator was leaving by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G.
Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the
testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First
Instance of Cebu seeking the probate of his last will and testament. The probate court
set the petition for hearing on August 20, 1979 but the same and subsequent
scheduled hearings were postponed for one reason to another. On May 29, 1980, the
testator passed away before his petition could finally be heard by the probate
court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will,
sough his appointment as special administrator of the testator's estate, the estimated
value of which was P24,000.00, and he was so appointed by the probate court in its
order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had
their said petition intestate proceeding consolidated with Special Proceeding No. 3899R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate
of the Testator's will and the appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as
Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the
return of the records of Special Proceeding No. 3965-R to the archives since the testate
proceeding for the probate of the will had to be heard and resolved first. On March 26,
1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial
Court of Cebu where it remained until the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the testator was already in the poor
state of health such that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature of the testator
therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary
public Atty. Filoteo Manigos, testified that the testator executed the will in question in
their presence while he was of sound and disposing mind and that, contrary to the
assertions of the oppositors, Mateo Caballero was in good health and was not unduly
influenced in any way in the execution of his will. Labuca also testified that he and the
other witnesses attested and signed the will in the presence of the testator and of each
other. The other two attesting witnesses were not presented in the probate hearing as
the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in question
as the last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors
cannot overcome the positive testimonies of Atty. Filoteo Manigos
and Cipriano Labuca who clearly told the Court that indeed Mateo
Caballero executed the Last Will and Testament now marked Exhibit
"C" on December 5, 1978. Moreover, the fact that it was Mateo
Caballero who initiated the probate of his Will during his lifetime
when he caused the filing of the original petition now marked Exhibit
"D" clearly underscores the fact that this was indeed his Last Will. At
the start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature of Mateo
Caballero in Exhibit "C", nothing came out of it because they
abandoned the idea and instead presented Aurea Caballero and
Helen Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will
and Testament of Mateo Caballero and that it was executed in
accordance with all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in
the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in
question is null and void for the reason that its attestation clause is fatally defective
since it fails to specifically state that the instrumental witnesses to the will witnessed
the testator signing the will in their presence and that they also signed the will and all
the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of
the trial court, and ruling that the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question
may be considered as having substantialy complied with the
requirements of Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be defective is "we
do certify that the testament was read by him and the attestator,
Mateo Caballero, has published unto us the foregoing will consisting
of THREE PAGES, including the acknowledgment, each page
numbered correlatively in letters of the upper part of each page, as
his Last Will and Testament, and he has signed the same and every
page thereof, on the spaces provided for his signature and on the left
hand margin in the presence of the said testator and in the presence
of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by
the testator and by them (the witnesses) in the presence of all of
them and of one another. Or as the language of the law would have it
that the testator signed the will "in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another."
If not completely or ideally perfect in accordance with the wordings
of Art. 805 but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but
the same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal
now before us. Petitioners assert that respondent court has ruled upon said issue in a
manner not in accord with the law and settled jurisprudence on the matter and are
now questioning once more, on the same ground as that raised before respondent
court, the validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted,

with the formalities prescribed by law, to control to a certain degree the disposition of
his estate after his death. 13 Under the Civil Code, there are two kinds of wills which a
testator may execute. 14 the first kind is the ordinary or attested will, the execution of
which is governed by Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation should state the number of pages used upon which
the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witness, it
shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a
testator and the attesting witness.15 hence it is likewise known as notarial will. Where
the attestator is deaf or deaf-mute, Article 807 requires that he must personally read
the will, if able to do so. Otherwise, he should designate two persons who would read
the will and communicate its contents to him in a practicable manner. On the other
hand, if the testator is blind, the will should be read to him twice; once, by anyone of
the witnesses thereto, and then again, by the notary public before whom it is
acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the testator himself. This kind of will, unlike the
ordinary type, requires no attestation by witnesses. A common requirement in both
kinds of will is that they should be in writing and must have been executed in a
language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause
likewise need not even be known to the attesting witnesses. 18 The last paragraph of
Article 805 merely requires that, in such a case, the attestation clause shall be
interpreted to said witnesses.
This objective is in accord with the modern tendency with respect to

the formalities in the execution of wills. . . . 29
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
manner of the execution the same. 19 It is a separate memorandum or record of the
facts surrounding the conduct of execution and once signed by the witnesses, it gives
affirmation to the fact that compliance with the essential formalities required by law
has been observed. 20 It is made for the purpose of preserving in a permanent form a
record of the facts that attended the execution of a particular will, so that in case of
failure of the memory of the attesting witnesses, or other casualty, such facts may still
be proved. 21
2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective signatures of the testator and the
three attesting witnesses. The part of the will containing the testamentary dispositions
is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting witnesses
hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility
of reference:
Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will, 22 should state (1) the number of the pages
used upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that theattesting witnesses witnessed the signing by the testator of
the will and all its pages, and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
We, the undersigned attesting Witnesses, whose Residences and

postal addresses appear on the Opposite of our respective names, we
do hereby certify that the Testament was read by him and the
testator, MATEO CABALLERO; has published unto us the foregoing
Will consisting of THREE PAGES, including the Acknowledgment, each
page numbered correlatively in the letters on the upper part of each
page, as his Last Will and Testament and he has the same and every
page thereof, on the spaces provided for his signature and on the left
hand margin, in the presence of the said testator and in the presence
of each and all of us.
The purpose of the law in requiring the clause to state the number of pages on which
the will is written is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the pages; 23 whereas the
subscription of the signature of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that the will is the very
same instrument executed by the testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. 25 The attestation clause,
therefore, provide strong legal guaranties for the due execution of a will and to insure
the authenticity thereof. 26 As it appertains only to the witnesses and not to the
testator, it need be signed only by them. 27 Where it is left unsigned, it would result in
the invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring
the formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in view of
giving the testator more freedom in expressing his last wishes, but
with sufficient safeguards and restrictions to prevent the commission
of fraud and the exercise of undue and improper pressure and
influence upon the testator.
It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another. "Attestation"
and "subscription" differ in meaning. Attestation is the act of senses, while subscription
is the act of the hand. The former is mental, the latter mechanical, and to attest a will
is to know that it was published as such, and to certify the facts required to constitute
an actual and legal publication; but to subscribe a paper published as a will is only to
write on the same paper the names of the witnesses, for the sole purpose of
identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done
which the statute requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose of identification of such paper
as the will which was executed by the testator. As it involves a mental act, there would
be no means, therefore, of ascertaining by a physical examination of the will whether
the witnesses had indeed signed in the presence of the testator and of each other
unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention
of the express requirements of the third paragraph of Article 805 of the Civil Code for
attestation clauses, fails to specifically state the fact that the attesting witnesses the
testator sign the will and all its pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the presence of the testator and of
each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed
is the fact that while it recites that the testator indeed signed the will and all its pages
in the presence of the three attesting witnesses and states as well the number of
pages that were used, the same does not expressly state therein the circumstance that
said witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the testator
and not the instrumental witnesses as it is immediately preceded by the words "as his
Last Will and Testament." On the other hand, although the words "in the presence of
the testator and in the presence of each and all of us" may, at first blush, appear to
likewise signify and refer to the witnesses, it must, however, be interpreted as referring
only to the testator signing in the presence of the witnesses since said phrase
immediately follows the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What is then clearly
lacking, in the final logical analysis , is the statement that the witnesses signed the will
and every page thereof in the presence of the testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal
defect or imperfection which must necessarily result in the disallowance of the will that
is here sought to be admitted to probate. Petitioners are correct in pointing out that
the aforestated defect in the attestation clause obviously cannot be characterized as
merely involving the form of the will or the language used therein which would warrant
the application of the substantial compliance rule, as contemplated in the pertinent
provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is not proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof
and at the left margin of each page by the three attesting witnesses, it certainly cannot
be conclusively inferred therefrom that the said witness affixed their respective
signatures in the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes the fact that it was
indeed signed, but it does not prove that the attesting witnesses did subscribe to the
will in the presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on various
days or occasions and in various combinations, the will cannot be stamped with the
imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article
809, wherein he urged caution in the application of the substantial compliance rule
therein, is correct and should be applied in the case under consideration, as well as to
future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can
be supplied by an examination of the will itself: whether all the pages
are consecutively numbered; whether the signatures appear in each
and every page; whether the subscribing witnesses are three or the
will was notarized. All theses are facts that the will itself can reveal,
and defects or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings. (Emphasis
ours.)
3. We stress once more that under Article 809, the defects and imperfections must
only be with respect to the form of the attestation or the language employed therein.
Such defects or imperfections would not render a will invalid should it be proved that
the will was really executed and attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and attestation has been held to be
limited to merely an examination of the will itself without resorting to evidence aliunde,
whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits
the fact that the attesting witnesses signed each and every page of the will in the
presence of the testator and of each other. 35 In such a situation, the defect is not only
in the form or language of the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated in the attestation clause of a
will. That is precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation clause statement,
or an implication thereof, that the attesting witness did actually bear witness to the
signing by the testator of the will and all of its pages and that said instrumental
witnesses also signed the will and every page thereof in the presence of the testator
and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or
relied on by respondents since it presupposes that the defects in the attestation clause
can be cured or supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied within the execution of the will. In
other words, defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts
may be plausibly deduced. What private respondent insists on are the testimonies of
his witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by the indirection what in
law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of
views as to which manner of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required in the execution of wills.
The formal requirements were at that time embodied primarily in Section 618 of Act
No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2645,
but the provisions respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in
the case of Abangan vs. Abangan, 36 where it was held that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as
to attain these primordial ends. Nonetheless, it was also emphasized that one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an interpretation already given
assures such ends, any other interpretation whatsoever that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded. The subsequent cases of Avera vs. Garcia, 37 Aldaba vs.
Roque, 38 Unson vs. Abella, 39Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et
al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities
that should be observed in the execution of wills are mandatory in nature and are to be
strictly construed was followed in the subsequent cases of In the Matter of the Estate
of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of
Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case of Gumban,
the attestation clause had failed to state that the witnesses signed the will and each
and every page thereof on the left margin in the presence of the testator. The will in
question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court
beginning with (I)n the Matter of the (E)state of Saguinsin ([1920],
41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil.,
180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In
re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano
vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the
citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.

Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de
Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to
contrast and, if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana,supra,
and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses signed the
will and each and every page thereof on the left margin in the
presence of the testator is defective, and such a defect annuls the
will. The case of Uy Coque vs. Sioca, supra, was cited, but the case
of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,
wherein it was held that the attestation clause must estate the fact
that the testator and the witnesses reciprocally saw the signing of
the will, for such an act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also held that the fact that
the testator and the witnesses signed each and every page of the will
can be proved also by the mere examination of the signatures
appearing on the document itself, and the omission to state such
evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases;
seldom do they admit inconsistency in doctrine. Yet here, unless
aided impossible to reconcile the Mojal and Quintana decisions. They
are fundamentally at variance. If we rely on one, we affirm. If we
rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding
points may be mentioned. In the first place, the Mojal, decision was
concurred in by only four members of the court, less than a majority,
with two strong dissenting opinions; the Quintana decision was
concurred in by seven members of the court, a clear majority, with
one formal dissent. In the second place, the Mojal decision was
promulgated in December, 1924, while the Quintana decision was
promulgated in December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable
provisions of the law.
The right to dispose of property by will is governed entirely by
statute. The law of the case is here found in section 61 of the Code of
Civil Procedure as amended by Act No. 2645, and in section 634 of
the same Code, as unamended. It is in part provided in section 61,
as amended that "No will . . .shall be valid . . . unless . . .." It is
further provided in the same section that "The attestation shallstate
the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of
the testator and of each other." Codal section 634 provides that "The
will shall be disallowed in either of the following case: 1.
If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative
intention. It is not within the province of the courts to disregard the
legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the decision in
the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the
original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court
that once more appeared to revive the seeming diversity of views that was earlier
threshed
out
therein.
The
cases
of Quinto
vs. Morata, 49Rodriguez vs.
50
51
Alcala, Enchevarria vs. Sarmiento, and Testate Estate of Toray 52 went the way of
the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs.
Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De
Villa,61 Sabado
vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the
strict interpretation rule and established a trend toward an application of the liberal
view.
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to be in accord with the modern
tendency to give a liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the Code
Commission:
The present law provides for only one form of executing a will, and
that is, in accordance with the formalities prescribed by Section 618
of the Code of Civil Procedure as amended by Act No. 2645. The
Supreme Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and
non-compliance therewith invalidated the will (Uy Coque vs. Sioca,
43 Phil. 405). These decisions necessarily restrained the freedom of
the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and
has become more liberal in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated in the cases
ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April
18, 1941.
In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618 of the
Code of Civil Procedure before its amendment by Act No. 2645 in the
year 1916. To turn this attitude into a legislative declaration and to
attain the main objective of the proposed Code in the liberalization of
the manner of executing wills, article 829 of the Project is
recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in the form of
attestation or in the language used therein shall not
render the will invalid if it is proved that the will
was in fact executed and attested in substantial
compliance with all the requirements of article
829."65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any
puzzle or difficulty, nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the dividing line with precision.
They do not allow evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit a probe into the
will, an exploration into its confines, to ascertain its meaning or to determine the
existence or absence of the requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly
directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate of the said
decedent.
SO ORDERED.
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 lefthand 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.
G.R. No. L-5826
April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo
Lucero
and
Vicente
C.
Santos
Marciano Chitongco and Zosimo B. Echanova for appellee.
for
appellants.
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. Petitionerappellant 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:
G.R. No. L-32213 November 26, 1973

AGAPITA
N.
CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of
First Instance of Cebu, and MANUEL B. LUGAY, respondents.
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.
REV.
FATHER
LUCIO
vs.
HON. CONRADO M. VASQUEZ, respondent.
Antonio
Enrile
Inton
and
No appearance for respondent.
Conrado
V.
B.
GARCIA, petitioner,
Enriquez
for
petitioner.
FERNANDO, J.:
Petitioner in this certiorari proceeding was averse to paying the docket fees in the
amount of P940.00 for the probate of a will of the decedent, Gliceria A. del Rosario. He
was of the belief that no such fee should be collected as previously another alleged will
of the same deceased was filed for probate by another party with the corresponding
docket fee having been paid. He would assert, as set forth in the petition, "that after
[such payment] by the original petitioner, Consuelo Gonzales, there is no more need
for [him] to pay additional or separate docket fees for their petitions, since they all
refer to the settlement of only one estate, the Estate of Gliceria A. del Rosario." 1
Petitioner had to pay just the same, his belief that he would be thus exempted having
failed to command the assent of respondent Judge, the Honorable Conrado M.
Vasquez, who issued the following order of November 6, 1965: "'Oppositor, Father
Lucio Garcia is hereby ordered to pay the corresponding fees of the filing of his petition
for allowance of will and issuance of letters of administration with the will annexed,
dated September 30, 1965 within fifteen (15) days from notice hereof, failure of which
the said petition will be considered dismissed.'" 2Payment was made by him on
December 2, 1965, coupled with a reservation that he would seek a definite ruling
from us.
Hence this petition for certiorari filed on November 9, 1966, the sole question raised
being the alleged error of the respondent Judge in ordering the payment of the
aforesaid docket fee considering that previously, with reference to an alleged will of the
same estate of the decedent in connection with the petition for probate filed, such a
fee had been collected. It is petitioner's contention that the challenged order of
respondent Judge amounted to a grave abuse of discretion correctible
by certiorari.lawphi1.et
Respondent Judge did not even bother to answer the petition. It is understandable
why. On its face, it is obviously without merit. A petition for probate of a will having
been filed by petitioner, he could not escape the payment of the corresponding docket
fee. The argument based on the allegation that there was such a previous payment in
connection with another will of the same decedent sought to be probated does not
carry the day. It is bereft of any persuasive force.
G.R. No. L-26808
March 28, 1969
Petitioner should have been aware that there is no escape from the payment of the
corresponding docket fee, otherwise, the Court is not called upon to act on a complaint
or petition. Nor does it suffice to vary the rule simply because there is only one
decedent whose estate is thus to be disposed of by will that must first be probated. It
is not farfetched or implausible that a decedent could have left various wills. Under
such circumstances, there is nothing inherently objectionable in thus exacting the
payment of a docket fee, every time a will is sought to be probated. Petitioner here
could have sought the probate of the will presented by him in the same proceeding. He
did not; he filed instead a separate action.
One last point. The Rules of Court require that for all clerical services in the allowance
of will, the "fees payable out of the estate shall be collected in accordance with the
value of the property involved ...." 3 The specific legal provision is thus clear and
unmistakable. It is the clerical service in the allowance of the will that has to be paid
for. The docket fees exist for that purpose and must be collected at the outset. There is
no exception according to the above legal provision. It needs no interpretation. It must
be applied in accordance with the specific language thus employed. 4 Respondent Judge
acted in accordance with the clear tenor of the controlling legal norm. The alleged
grievance of petitioner that there was a grave abuse of discretion does not merit any
attention. As a matter of fact, on this point, respondent Judge had no discretion to
abuse. The docket fees had to be paid. There is no escape for petitioner.
G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased
Brigido
Alvarado,
CESAR
ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
WHEREFORE, this petition for certiorari is denied, with costs against petitioner.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases
Division of the then Intermediate Appellate Court, now Court of Appeals, which
affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz,
Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late
Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled
"Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time awaiting probate before
Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final draft
of the will himself. Instead, private respondent, as the lawyer who drafted the eightpaged document, read the same aloud in the presence of the testator, the three
instrumental witnesses and the notary public. The latter four followed the reading with
their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9
December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in
the notarial will to generate cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read the
final draft of the codicil. Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental witnesses (same as those of
the notarial will) and the notary public who followed the reading using their own
copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's
death on 3 January 1979 by private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan, Laguna. 5Petitioner, in turn, filed an
Opposition on the following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane or otherwise
mentally incapacitated to make a will at the time of its execution due to senility and old
age; that the will was executed under duress, or influence of fear and threats; that it
was procured by undue and improper pressure and influence on the part of the
beneficiary who stands to get the lion's share of the testator's estate; and lastly, that
the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal was that the deceased was
blind within the meaning of the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading required by Art. 808 of the Civil
Code was admittedly not complied with, probate of the deceased's last will and codicil
should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the
following findings: that Brigido Alvarado was not blind at the time his last will and
codicil were executed; that assuming his blindness, the reading requirement of Art.
808 was substantially complied with when both documents were read aloud to the
testator with each of the three instrumental witnesses and the notary public following
the reading with their respective copies of the instruments. The appellate court then
concluded that although Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator the contents of the
drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of
Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the
double-reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado
was not totally blind at the time the will and codicil were executed. However, his vision
on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma
which he had been suffering from for several years and even prior to his first
consultation
with
an
eye
specialist
on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a
"blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of

Opthalmology (Philippine Eye Research Institute), 6 the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent. 7 Dr. Roasa explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either printed or handwritten matters
as of 14 December 1977, the day of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony, held that
the testator could still read on the day the will and the codicil were executed but chose
not to do so because of "poor eyesight." 9 Since the testator was still capable of reading
at that time, the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private
respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the
scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to him,
so that he may be able to object if they are not in accordance with
his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to
those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that Brigido Alvarado comes within
the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer who drafted the will and
codicil did so confortably with his instructions. Hence, to consider his will as validly
executed and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read
twice; once, by one of the instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before signing and to give him an
opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and
an instrumental witness, it was the lawyer (private respondent) who drafted the eightpaged will and the five-paged codicil who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner maintains
that the only valid compliance or compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness read the contents of the will and
codicil to Brigido, probate of the latter's will and codicil should have been disallowed.
The object of the solemnities surrounding the execution of wills is to

close the door against bad faith and fraud, to avoid the substitution
of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on the subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a will. So
when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded (emphasis supplied).
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable
where the purpose of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible as to destroy the
testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the
presence of the testator, his three instrumental witnesses, and the notary public. Prior
and subsequent thereto, the testator affirmed, upon being asked, that the contents
read corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner does not so allege,
that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the
day of the execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is
that Brigido Alvarado already acknowledged that the will was drafted in accordance
with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the
testator's residence precisely for the purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental
witnesses and the testator's physician) asked the testator whether the contents of the
document were of his own free will. Brigido answered in the affirmative. 16 With four
persons following the reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was read to him (those
which he affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we consider the
fact that the three instrumental witnesses were persons known to the testator, one
being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known
to him since childhood.
The spirit behind the law was served though the letter was not. Although there should
be strict compliance with the substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be brushed aside when they do
not affect its purpose and which, when taken into account, may only defeat the
testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Order
and its affirmance by the Court of Appeals, we quote the following pronouncement
in Abangan v. Abangan, 18 to wit:
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his
"Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside
fro the mere reason that a legal requirement intended for his protection was not
followed strictly when such compliance had been rendered unnecessary by the fact that
the purpose of the law, i.e., to make known to the incapacitated testator the contents
of the draft of his will, had already been accomplished. To reiterate, substantial
compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of
Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case
has remained pending, this decision is immediately executory. Costs against petitioner.
SO ORDERED.
G.R.
No.
L-36033
November
5,
1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF
DOROTEA
PEREZ,
(deceased):
APOLONIO
TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern
Leyte, (Branch III, Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of
Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter
of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada,
Petitioner", which denied the probate of the will, the motion for reconsideration and the
motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the CebuanoVisayan dialect, the will consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the page by the
testatrix alone and at the left hand margin by the three (3) instrumental witnesses.
The second page which contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three (3) attesting witnesses and at
the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also required to submit the names of
the intestate heirs with their corresponding addresses so that they could be properly
notified and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex partepraying 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.
The petitioner filed a motion for reconsideration of the order denying the probate of the
will. However, the motion together with the previous manifestation and/or motion could
not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding judge of the
respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In the same order of denial, the motion for
the appointment of special administrator was likewise denied because of the
petitioner's failure to comply with the order requiring him to submit the names of' the
intestate heirs and their addresses.
The petitioner decided to file the present petition.
and that the lacier witnesses and signed the will and the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses,
it shall be interpreted to the witnesses, it shall be interpreted to
them.
The respondent Judge interprets the above-quoted provision of law to require that, for
a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but
an the three subscribing witnesses must also sign at the same place or at the end, in
the presence of the testatrix and of one another because the attesting witnesses to a
will attest not merely the will itself but also the signature of the testator. It is not
sufficient compliance to sign the page, where the end of the will is found, at the left
hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic validity
of the wig that the signatures of the subscribing witnesses should be specifically
located at the end of the wig after the signature of the testatrix. He contends that it
would be absurd that the legislature intended to place so heavy an import on the space
or particular location where the signatures are to be found as long as this space or
particular location wherein the signatures are found is consistent with good faith and
the honest frailties of human nature.
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?
We find the petition meritorious.
Article 805 of the Civil Code provides:
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.
Every will, other than a holographic will, must be subscribed at the

end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in
the presence of the testator and of one another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
It must be noted that the law uses the terms attested and subscribed Attestation
consists in witnessing the testator's execution of the will in order to see and take note
mentally that those things are, done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for the
purpose of Identification of such paper as the will which was executed by the testator.
(Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that
the will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the
will attested not only to the genuineness of the signature of the testatrix but also the
due execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure
from the usual forms should be ignored, especially where the authenticity of the will is
not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to
be that the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if
the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation
is different. While the attestation clause does not state the number of
sheets or pages upon which the will is written, however, the last part
of the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the realm of similar
cases where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely
technical considerations.
The law is to be liberally construed, "the underlying and fundamental objective

permeating the provisions on the law on wills in this project consists in the
liberalization of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator. This objective is in accord with the modern
tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not
for the defect in the place of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the sole
page which contains all the testamentary dispositions, especially so when the will was
properly Identified by subscribing witness Vicente Timkang to be the same will
executed by the testatrix. There was no question of fraud or substitution behind the
questioned order.
We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire wig that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages
including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation clause
must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the win is
written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of the heirs to whom
the property is intended to be bequeathed (In re will of Andrada, 42
Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a
similar liberal approach:
... Impossibility of substitution of this page is assured not only (sic)
the fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of the
seal of the notary public before whom the testament was ratified by
testatrix and all three witnesses. The law should not be so strictly
and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no
control where the purpose of the law to guarantee the Identity of the
testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on
record attests to the fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459,
at 1479 (decision on reconsideration) 'witnesses may sabotage the
will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent
court which denied the probate of tile will, the motion for reconsideration of the denial
of probate, and the motion for appointment of a special administrator are set aside.
The respondent court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.
SO ORDERED.
G.R. No. 122880
April 12, 2006
FELIX
AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules in the execution of
notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose attestation clause is
not signed by the instrumental witnesses is fatally defective. And perhaps
most importantly, a will which does not contain an acknowledgment, but a
merejurat, is fatally defective. Any one of these defects is sufficient to deny
probate. A notarial will with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive
catalog of imperatives for the proper execution of a notarial will. Full and faithful
compliance with all the detailed requisites under Article 805 of the Code leave little
room for doubt as to the validity in the due execution of the notarial will. Article 806
likewise imposes another safeguard to the validity of notarial wills that they be
acknowledged before a notary public by the testator and the witnesses. A notarial will
executed with indifference to these two codal provisions opens itself to nagging
questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional
Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit
to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981.
Petitioner is the son of the cousin of the decedent.
PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat
at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA
address:
500
Sampaloc,
Manila
Res.
Issued at Manila on March 10, 1981.
E.
San
Cert.
Diego
No.
IGSOLO
St.
A-7717-37
No.
AGRAVA
Kahilum
A-458365
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
QUIRINO
address:
1228-Int.
Pandacan,
Manila
Res.
Issued at Manila on Jan. 21, 1981
HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat
ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa
kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya
at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon,
yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na
nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling
habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA
(Tagapagmana)
E.
IGSOLO
3,
Cert.
LAMBERTO
C.
address:
Avenue
2,
Blcok
Lot
61,
San
Gabriel,
G.MA.,
Cavite
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO
address:
City
City
of
Manila
Issued at Manila on March 2, 1981.
Res.
Court
Cert.
No.
LEAO
7,
Res.
ESTRERA
Compound,
A574829
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng

Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc.
No. 1232 ;
Page
No. 86 ;
Until
Book
No. 43 ;
Series of 1981 TAN # 1437-977-81
NOTARIO
PUBLIKO
Dec.
31,
1981
PTR-152041-1/2/81-Manila
The three named witnesses to the will affixed their signatures on the left-hand margin
of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented
herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent. 2 Geralda
Castillo claimed that the will is a forgery, and that the true purpose of its emergence
was so it could be utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real property, all centering
on petitioners right to occupy the properties of the decedent. 3 It also asserted that
contrary to the representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad. Per
records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo,
who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in
accordance with law. She pointed out that decedents signature did not appear on the
second page of the will, and the will was not properly acknowledged. These twin
arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August
1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to
the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to
fore "the modern tendency in respect to the formalities in the execution of a will x x x
with the end in view of giving the testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted oppositors arguments that the will was
not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last wishes, this Court is persuaded
to rule that the will in question is authentic and had been executed by the testatrix in
accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the
will after the signature of the testatrix, the following statement is made under the subtitle, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat
at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
The
aforequoted
declaration
comprises
the
attestation
clause
and
the
acknowledgement and is considered by this Court as a substantial compliance with the
requirements of the law.
On the oppositors contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the signing
by the subscribing witnesses on the left margin of the second page of the will
containing the attestation clause and acknowledgment, instead of at the bottom
thereof, substantially satisfies the purpose of identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in
letters placed on upper part of each page and that the attestation did not state the
number of pages thereof, it is worthy to note that the will is composed of only two
pages. The first page contains the entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation clause and acknowledgement.
Such being so, the defects are not of a serious nature as to invalidate the will. For the
same reason, the failure of the testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a
forgery, the testimonies of the three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of the testatrix and the due
execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17
August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of
the petition for probate.9 The Court of Appeals noted that the attestation clause failed
to state the number of pages used in the will, thus rendering the will void and
undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the
number of pages used in a notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil
Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and
the witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of the
will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of
pages of the will.12 There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the attestation
clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 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. 15 In ruling that
the will could not be admitted to probate, the Court made the following consideration
which remains highly relevant to this day: "The purpose of requiring the number of
sheets to be stated in the attestation clause is obvious; the document might easily
be so prepared that the removal of a sheet would completely change the
testamentary 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."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed
to state the number of sheets or pages used. This consideration alone was sufficient for
the Court to declare "unanim[ity] upon the point that the defect pointed out in the
attesting clause is fatal." 17 It was further observed that "it cannot be denied that the x
x x requirement affords additional security against the danger that the will may be
tampered with; and as the Legislature has seen fit to prescribe this requirement, it
must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the
fact that the attestation clause did not state the number of pages of the will. Yet the
appellate court itself considered the import of these two cases, and made the following
distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson
versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if
the attestation does not contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of "Manuel Singson
versus Emilia Florentino, et al., supra," although the attestation in the subject Will did
not state the number of pages used in the will, however, the same was found in the
last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or
sheets upon which the 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 (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L.
Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be
that the attestation clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but
by a consideration or examination of the will itself. But here the situation is different.
While the attestation clause does not state the number of sheets or pages upon which
the will is written, however, the last part of the body of the will contains a statement
that it is composed of eight pages, which circumstance in our opinion takes this case
out of the rigid rule of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to prevent the will of the
testator from being defeated by purely technical considerations." (page 165-165,
supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra,
acknowledgement in the Will states the number of pages used in the:
the
notarial
"x x x
We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages
including this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in
any part of the Will. The will does not even contain any notarial acknowledgment
wherein the number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in
1950, at a time when the statutory provision governing the formal requirement of wills
was Section
618 of the Code of Civil Procedure. Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages of the
will is extant from Section 618. 23 However, the enactment of the Civil Code in 1950 did
put in force a rule of interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy that governed
these two cases. Article 809 of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805."
22
In the same vein, petitioner cites the report of the Civil Code Commission, which stated
that "the underlying and fundamental objective permeating the provisions on the [law]
on [wills] in this project consists in the [liberalization] of the manner of their execution
with the end in view of giving the testator more [freedom] in [expressing] his last
wishes. This objective is in accord with the [modern tendency] in respect to the
formalities in the execution of wills."24 However, petitioner conveniently omits the
qualification offered by the Code Commission in the very same paragraph he cites from
their report, that such liberalization be "but with sufficient safeguards and restrictions
to prevent the commission of fraud and the exercise of undue and improper pressure
and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation clause
in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction. 28 However, the Code
Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice
J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially

appear in the attestation clause, being the only check against perjury in the
probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to the
will in the presence of the testator and of each other,30 the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being assailed. However, those omissions
which cannot be supplied except by evidence aliunde would result in the invalidation of
the attestation clause and ultimately, of the will itself." 31 Thus, a failure by the
attestation clause to state that the testator signed every page can be liberally
construed, since that fact can be checked by a visual examination; while a failure by
the attestation clause to state that the witnesses signed in one anothers presence
should be considered a fatal flaw since the attestation is the only textual guarantee of
compliance.32
The failure of the attestation clause to state the number of pages on which the will was
written remains a fatal flaw, despite Article 809. The purpose of the law in requiring
the clause to state the number of pages on which the will is written is to safeguard
against possible interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages. 33 The failure to state the number of pages
equates with the absence of an averment on the part of the instrumental witnesses as
to how many pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as
was the situation inSingson and Taboada. However, in this case, there could have been
no substantial compliance with the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the inclinations of the
members of the Code Commission in incorporating Article 805, the fact remains that
they saw fit to prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial wills. 34 Compliance with these
requirements, however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey property post
mortem in the manner established in the will. 35 The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the
fruition of the testators incontestable desires, and not for the indulgent
admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the 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.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand
margin."37 While three (3) Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice Paras,
ruled that the attestation clause had not been duly signed, rendering the will fatally
defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same
is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear
their signatures. An unsigned attestation clause cannot be considered as an 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 lefthand margin conform substantially to the law and may be deemed as their signatures
to the attestation clause. This is untenable, because said signatures are in compliance
with the legal mandate that the will be signed on the left-hand margin of all its pages.
If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the will,
from the requisite that the will be "attested and subscribed by [the instrumental
witnesses]." The respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing forms part of the
will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the 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.
The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such
clause. Without diminishing the value of the instrumental witnesses signatures on each
and every page, the fact must be noted that it is the attestation clause which contains
the utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the
number of pages used upon which the will is written; the fact that the testator had
signed the will and every page thereof; and that they witnessed and signed the will
and all the pages thereof in the presence of the testator and of one another. The only
proof in the will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should
also hinge. The requirement under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses" has also not been complied
with. The importance of this requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in this case is
equally as critical as the other cited flaws in compliance with Article 805, and should be
treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan
ko at ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila."40 By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his act or deed. 41 It
involves an extra step undertaken whereby the signor actually declares to the notary
that the executor of a document has attested to the notary that the same is his/her
own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew
to the usual language thereof. A jurat is that part of an affidavit where the notary
certifies that before him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow that the document was
subscribed and sworn before the notary public, while in this case, the notary public
averred that he himself "signed and notarized" the document. Possibly though, the
word "ninotario" or "notarized" encompasses the signing of and swearing in of the
executors of the document, which in this case would involve the decedent and the
instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present
any textual proof, much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act. 43 The acknowledgment coerces the
testator and the instrumental witnesses to declare before an officer of the law that
they had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the criminal
prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of
assurance that the testator is of certain mindset in making the testamentary
dispositions to those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under
Article 806. A notarial will that is not acknowledged before a notary public by
the testator and the witnesses is fatally defective, even if it is subscribed and
sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by
the will in question. We need not discuss them at length, as they are no longer
material to the
each page. In this case, the decedent, unlike the witnesses, failed to sign both pages
of the will on the left margin, her only signature appearing at the so-called "logical
end"44 of the will on its first page. Also, the will itself is not numbered correlatively in
letters on each page, but instead numbered with Arabic numerals. There is a line of
thought that has disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient
to deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they may be
of a general lack of due regard for the requirements under Article 805 by whoever
executed the will.
All told, the string of mortal defects which the will in question suffers from makes the
probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
disposition of this case. The provision requires that the testator and the instrumental
witnesses sign each and every page of the will on the left margin, except the last; and
that all the pages shall be numbered correlatively in letters placed on the upper part of

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SUCCESSION | August 11 | 1

G.R. No. L-28946

January 16, 1929

November 12, 1919

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the

A.M. No. 2026-CFI December 19, 1981

A judge may be criminally liable or knowingly rendering an unjust judgment or

G.R. No. 15566

September 14, 1921

G.R. No. L-21755

December 29, 1924

In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA

(Signed and declared by the testator Don Antonio Mojal to be his

G.R. No. L-10907

June 29, 1957

G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

G.R. No. L-15153

August 31, 1960

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

G.R. No. L-18979

June 30, 1964

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

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

G.R. No. 1641

January 19, 1906

Who first signed the will?

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

Who were those others to whom you have just referred?

Why do you believe Julio Javellana signed?

Explain this contradictory statement.

I believe he was signing.

G.R. No. 103554 May 28, 1993

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

This objective is in accord with the modern tendency with respect to

We, the undersigned attesting Witnesses, whose Residences and

Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.

G.R. No. L-5826

April 29, 1953

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

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

It is said that there are, practical reasons for upholding a will as

G.R. No. L-26808

March 28, 1969

G.R. No. 74695 September 14, 1993

medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of

The object of the solemnities surrounding the execution of wills is to

GUTIERREZ, JR. J.:

We find the petition meritorious.

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the

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

G.R. No. 122880

April 12, 2006

PATUNAY NG MGA SAKSI

HULING HABILIN NI EUGENIA E. IGSOLO

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng

required to sign did so in the presence of each other must substantially

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