Lopez vs Liboro the will that the testator knows the language
being used therein. It is a matter that may be
In 1947, Don Sixto Lopez executed a will where
Jose Lopez was named an heir. Agustin Liboro
questioned the validity of the said will based on
the following ground, among others:
1. The first sheet, which is also the first
page) is not paged either in letters or in Arabic
numerals.
2. That the witnesses to the will provided
contradictory statements.
3. That Don Sixto used his thumb mark to
sign the will.
4. There was no indication in the will that
the language used therein is known by Don Sixto
Lopez.
ISSUE: Whether or not the will is valid.
HELD: Yes, the will is valid.
1. The omission to put a page number on
the first sheet, if that be necessary, is supplied
by other forms of identification more
trustworthy than the conventional numeral
words or characters. The unnumbered page is
clearly identified as the first page by the internal
sense of its contents considered in relation to
the contents of the second page. By their
meaning and coherence, the first and second
lines on the second page are undeniably a
continuation of the last sentence of the
testament, before the attestation clause, which
starts at the bottom of the preceding page.
Further, the first pages is captioned
“Testamento”.
2. The contradictions in the testimony of
the instrumental witnesses as are set out in
Liboro’s appelant’s brief are incidents not all of
which every one of the witnesses can be
supposed to have perceived, or to recall in the
same order in which they occurred.
3. Don Sixto affixed his thumb mark to the
instrument instead of signing his name. The
reason for this was that he was suffering from
“partial paralysis.” There is nothing curious or
suspicious in the fact that the testator chose the
use of mark as the means of authenticating his
will. It was a matter of taste or preference. Both
ways are good.
4. There is no statutory requirement which
prescribes that it must be expressly placed in
established by proof aliunde.
Balonan vs. Abellana
Anacleta Abellana left a will. In said will, she let
a certain Juan Bello sign the will for her. The will
consists of two pages.
The first page is signed by Juan Abello and under
his name appears typewritten “Por la testadora
Anacleta Abellana”.
On the second page, appears the signature of
Juan Bello under whose name appears the
phrase, “Por la Testadora Anacleta Abellana” –
this time, the phrase is handwritten.
ISSUE: Whether or not the signature of Bello
appearing above the typewritten phrase “Por la
testadora Anacleta Abellana” comply with the
requirements of the law prescribing the manner
in which a will shall be executed.
HELD: No. Article 805 of the Civil Code provides
that:
“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.”
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
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.
Note that the phrase “Por la testadora Anacleta
Abellana” was typewritten and above it was the
signature of Abello – so in effect, when Abello
only signed his name without writing that he is
doing so for Anacleta, he actually omitted the
name of the testatrix. This is a substantial
violation of the law and would render the will
invalid.
Nera v. Rimando
G.R. No. L-5971
February 27, 1911
FACTS:
The only question raised by the evidence in this
case as to the due execution of the instrument
propounded as a will in the court below, is
whether one of the subscribing witnesses was
present in the small room where it was executed
at the time when the testator and the other
subscribing witnesses attached their signatures;
or whether at that time he was outside, some
eight or ten feet away, in a large room
connecting with the smaller room by a doorway,
across which was hung a curtain which made it
impossible for one in the outside room to see
the testator and the other subscribing witnesses
in the act of attaching their signatures to the
instrument.
ISSUE:
What is the true test of the testator’s or the
witness’ presence in the signing of a will?
HELD:
The Supreme Court emphasized that the true
test of presence of the testator and the
witnesses in the execution of a will is not
whether they actually saw each other sign, but
whether they might have seen each other sign,
had they chosen to do so, considering their
mental and physical condition and position with
relation to each other at the moment of
inscription of each signature.
The position of the parties with relation to each
other at the moment of the subscription of each
signature, must be such that they may see each
other sign if they choose to do so.
The Supreme Court, in this case, determined
that all the parties were in the same small room
when each other signed. Hence, they were in
each other’s presence (though the facts of the
case didn’t elaborate – the SC just ruled so). The
SC ruled that if some of the witnesses were
really in the outer room (a fact which was not
established according to the SC) separated by a
curtain, then the will is invalid, the attaching of
those signatures under circumstances not being
done “in the presence” of the witness in the
outer room.
*Citing Jaboneta v. Gustilo, the court held that
“The true test of presence of the testator and
the witnesses in the execution of a will is not
whether they actually saw each other sign, but
whether they might have been seen each other
sign, had they chosen to do so, considering their
mental and physical condition and position with
relation to each other at the moment of
inscription of each signature.”
But it is especially to be noted that the position
of the parties with relation to each other at the
moment of the subscription of each signature,
must be such that they may see each other sign
if they choose to do so.
The question is whether the testator and the
subscribing witnesses to an alleged will signed
the instrument in the presence of each other
does not depend upon proof of the fact that
their eyes were actually cast upon the paper at
the moment of its subscription by each of them,
but that at that moment existing conditions and
their position with relation to each other were
such that by merely casting the eyes in the
proper direction they could have seen each
other sign. To extend the doctrine further would
open the door to the possibility of all manner of
fraud, substitution, and the like, and would
defeat the purpose for which this particular
condition is prescribed in the code as one of the
requisites in the execution of a will.
Icasiano v. Icasiano
11 SCRA 422
Ponente: Dela Cuesta
FACTS:
Celso Icasiano filed a petition for the allowance
and admission to probate of the alleged will of
Josefa Villacorte, and for his appointment as
executor thereof. Natividad and Enrique
Icasiano, a daughter and son of the testatrix,
filed their opposition thereto. During the course
of the trial, on 19 March 1959, Celso, started to
present his evidence. But later, on 1 June 1959,
he then filed an amended and supplemental
petition, alleging that the decedent had left a
will executed in duplicate and with all the legal
requirements, and that he was submitting the
duplicate to the court, which he found only on
26 May 1959.
Natividad and Enrique filed their opposition, but
the will and its duplicate was admitted to
probate by the trial court.
Hence, this appeal by the oppositors.
Oppositors-appellants (Natividad and Enrique) in
turn introduced expert testimony to the effect
that the signatures of the testatrix in the
duplicate are not genuine, nor were they written
or affixed on the same occasion as the original,
and further aver that granting that the
documents were genuine, they were executed
through mistake and with undue influence and
pressure because the testatrix was deceived into
adopting as her last will and testament the
wishes of those who will stand to benefit from
the provisions of the will, as may be inferred
from the facts and circumstances surrounding
the execution of the will and the provisions and
dispositions thereof, 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.
ISSUE:
1. Was the trial court correct in admitting the
will and its duplicate to probate given the
allegations of forgery of the testator’s signature,
or that the will was executed under
circumstances constituting fraud and undue
influence and pressure? (Not raised by the
appellants in the case but discussed by the
Court and in Sir’s book)
2. Is the failure of one of the witnesses to sign a
page of the will fatal to its validity?
HELD:
The Supreme Court dismissed the appeal,
holding that both the will and its duplicate are
valid in all respects.
On the allegations of forgery, fraud and undue
influence:
The Court is satisfied that all the requisites for
the validity of a will have been complied with.
The opinion of a handwriting expert trying to
prove forgery of the testatrix’s signature failed
to convince the Court, not only because it is
directly contradicted by another expert but
principally because of the paucity of the
standards used by him (only three other
signatures), considering the advanced age of the
testatrix, the evident variability of her signature,
and the effect of writing fatigue.
Similarly, the alleged slight variance in blueness
of the ink in the admitted and questioned
signatures does not appear reliable, considering
that standard and challenged writings were
affixed to different kinds of paper, with different
surfaces and reflecting power. On the whole, the
testimony of the oppositor’s expert is
insufficient to overcome that of the notary and
the two instrumental witnesses as to the will’s
execution, which were presented by Celso
during the trial.
Nor is there adequate evidence of fraud or
undue influence.
The fact that some heirs are more favored than
others is proof of neither. Diversity of
apportionment is the usual reason for making a
testament; otherwise, the decedent might as
well die intestate.
The testamentary disposition 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 occasion.
It is also well to note that 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 failure of a witness to sign a page in the
original, but signed all pages in the duplicate:
The records show that the original of the will
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 3 thereof; but the
duplicate copy attached to the amended and
supplemental petition is signed by the testatrix
and her three attesting witnesses in each and
every page.
Witness Atty. Natividad, who testified on his
failure to sign page 3 of the original, admits that
he may have lifted two pages instead of one
when he signed the same, but affirmed that
page 3 was signed in his presence.
The failure Atty. 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.
Therefore, Atty. Natividad’s failure to sign page 3
of the original through mere inadvertence does
not affect the will’s validity.
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.
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
mark 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 bad 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 is not entitled to probate. Since they
opposed probate of the original because it
lacked one signature in its third page, it is easily
discerned that oppositor’s 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, 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 serves to prove that
the omission of one signature in the third page
of the original testament was inadvertent and
not intentional.
2. Witnesses must sign each and every page,
except the last, on the left margin.
• Witnesses may sign anywhere as long as
they sign
• In the will submitted for probate, one page
was not signed by one of the witnesses. Such
failure to sign was due to inadvertence since in
the copy, all pages were signed. The SC held that
this was not a fatal defect. Considering the
circumstances, the fact that the other
requirement was complied with, and the
notarial seal coincided w/ the third page during
the sealing, then the will could be probated.
Unusual circumstances w/c existed in the case:
(1) there was another copy
(2) inadvertence/ oversight
(3) because of the notarial seal.
• The presence of these facts led the SC to
allow the will.
• The general rule, however, is that, the
failure to sign any page is a fatal defect.
The prevailing policy is to require satisfaction of
the legal requirements in order to guard against
fraud and bad faith but without undue or
unnecessary curtailment of testamentary
privilege.
Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964
Facts:
1. Celso Icasiano, filed a petition for the probate
of the will of Josefa Villacorte and for his
appointment as executor thereof. It appears
from the evidence that the testatrix died on
September 12, 1958. She executed a will in
Tagalog, and through the help of her lawyer, it
was prepared in duplicates, an original and a
carbon copy.
2. On the day that it was subscribed and
attested, the lawyer only brought the original
copy of the will while the carbon duplicate
(unsigned) was left in Bulacan. One of the
witnesses failed to sign one of the pages in the
original copy but admitted he may have lifted 2
pages simultaneously instead when he signed
the will. Nevertheless, he affirmed that the will
was signed by the testator and other witnesses
in his presence.
Issue: Whether or not the failure of one of the
subscribing witnesses to affix his signature to a
page is sufficient to deny probate of the will
RULING: No, the failure to sign was entirely
through pure oversight or mere inadvertence.
Since the duplicated bore the required
signatures, this proves that the omission was
not intentional. Even if the original is in
existence, a duplicate may still be admitted to
probate since the original is deemed to be
defective, then in law, there is no other will bu
the duly signed carbon duplicate and the same
can be probated.
The law should not be strictly and literally
interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she has no control of.
Where the purpose of the law is to guarantee
the identity of the testament and its component
pages, and there is no intentional or deliberate
deviation existed.
Note that this ruling should not be taken as a
departure from the rules that the will should be
signed by the witnesses on every page. The
carbon copy duplicate was regular in all
respects.
GARCIA v. LACUESTA, ET AL
FACTS:
A will was executed by Antero Mercado wherein
it appears that it was signed by Atty. Florentino
Javiwe who wrote the name of Antero. The
testator was alleged to have written a cross
immediately after his name. The Court of First
Instance found that the will was valid but the
Court of Appeals reversed the lower court’s
decision holding 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. 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 witnesses signed the will in
all the pages thereon in the presence of the
testator and of each other. Hence, this appeal.
ISSUE:
Whether or not the attestation clause is valid.
HELD:
The attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty.
Javier to write the testator’s name under his
express direction, as required by section 168 of
the Code of Civil Procedure. 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, the SC is 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.
ALTERNATIVE:
A will dated January 3, 1943. The will appears to
have been signed by Atty. Florentino Javier as he
wrote the name of Antero Mercado and his
name for the testatior on the will. HOWEVER,
immediately after Antero Mercado’s will,
Mercado himself placed an “X” mark.
The attestation clause was signed by three
instrumental witnesses. Said attestation clause
states that all pages of the will 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.”
The attestation clause however did not indicate
that Javier wrote Antero Mercado’s name.
ISSUE: Whether or not the will is valid.
HELD: No. 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.
But is there really a need for such to be included
in the attestation clause considering that even
though Javier signed for Antero, Antero himself
placed his signature by virtue of the “X” mark,
and by that, Javier’s signature is merely a
surplusage? That the placing of the “X” mark is
the same as placing Antero’s thumb mark.
No. It’s not the same as placing the testator’s
thumb mark. It would have been different had it
been proven that the “X” mark was Antero’s
usual signature or was even one of the ways by
which he signs his name. If this were so, failure
to state the writing by somebody else would
have been immaterial, since he would be
considered to have signed the will himself.
VDA RAMOS vs CA
DOCTRINE: The law requires at least three
attesting witnesses to a notarial will. The
witnesses shall be called upon, during probate, to
recount the incidents which occurred thereat. To
a large extent, admission to or denial of probate
depends on the testimony of these instrumental
witnesses. However, if contrary to expectation,
these witnesses, or some of them, should testify
against the formal validity of the will, the
proponent of the will may use other evidence,
direct or circumstantial, to establish compliance
with the formalities prescribed by law. A will is not
necessarily void because the witnesses declared
against its validity.
FACTS:
 Eugenia Danila allegedly executed a will and
testament dated March 9, 1963 and a codicil
dated April 18, 1963.
 Adelaida Nista, one of the instituted heirs
filed a petition for the probate of the two
documents.
 Buenaventura and Marcelina (Martina) both
surnamed Guerra filed an opposition to the
petition alleging among others that they are
the legally adopted son and daughter of the
late spouses Florentino Guerra and Eugenia
Danila.
 RESPONDENTS’S CONTENTION: The adopted
children alleged that the will and codicil
were procured through fraud and undue
influence. They further contend that the
formalities required by law for the execution
of a will and codicil have not been complied
with as the same were not properly attested
to or executed and not expressing the free
will and deed of the testatrix. They also
claim that Eugenia had already executed on
November 5, 1951 her last will and
testament which was duly probated and not
revoked or annulled during her lifetime.
 PETITIONERS’ CONTENTION: The will and
codicil are valid since it complied with the
formalities required by law for the execution
of a will and codicil.
ISSUE: Whether or not the last will and codicil
were executed in accordance with the
formalities of the law, considering two of the
attesting witnesses testified against their due
execution while other non-subscribing witnesses
testified to the contrary – YES
RULING:
The last will and codicil were executed in
accordance with the formalities required by law.
There is no question that each and every page of
the will and codicil carry the authentic
signatures of Eugenia Danila and the three (3)
attesting witnesses. Similarly, the attestation
claim far from being deficient, were properly
signed by the attesting witnesses. Neither is it
disputed that these witnesses took turns in
signing the will and codicil in the presence of
each other and the testatrix. Both instruments
were duly acknowledged before a Notary Public
who was all the time present during the
execution. There is no showing that the lawyers
had been remiss in their sworn duty.
Consequently, respondent court failed to consider
the presumption of regularity in the execution of
the questioned documents. There were no
incidents brought to the attention of the trial
court to arouse suspicion of anomaly. While the
opposition alleged fraud and undue influence, no
evidence was presented to prove their
occurrence.
With regard to the testimonies of the witnesses
against the due execution of a will, it does not
necessarily disallow its probate. Although the
subscribing witnesses to a contested will are the
best witnesses in connection with its due
execution, to deserve full credit, their testimony
must be reasonable, and unbiased; if otherwise,
it may be overcome by any competent evidence,
direct or circumstantial.
As a rule, if any or all of the subscribing
witnesses testify against the due execution of
the will, or do not remember having attested to
it, or are otherwise of doubtful credibility, the
will may, nevertheless, be allowed if the court is
satisfied from the testimony of other witnesses
and from all the evidence presented that the
will was executed and attested in the manner
required by the law.
It has been regarded that the function of the
Notary Public is, among others, to guard against
any illegal or immoral arrangements in the
execution of a will. In the absence of any showing
of self-interest that might possibly have warped
his judgment and twisted his declaration, the
intervention of a Notary Public, in his professional
capacity, in the execution of a will deserves grave
consideration.
WHEREFORE, the decision of the respondent
Court of Appeals is hereby reversed insofar as it
disallowed the probate of the will and codicil.
with costs against respondent.
SUROZA vs HONRADO
In 1973, Marcelina Suroza supposedly executed
a notarial will bequeathing her house and lot to
a certain Marilyn Suroza. In 1974, Marcelina
died. Marina Paje was named as the executrix in
the said will and she petitioned before CFI Rizal
that the will be admitted to probate. The
presiding judge, Honrado admitted the will to
probate and assigned Paje as the administratrix.
Honrado also issued an ejectment order against
the occupants of the house and lot subject of
the will.
Nenita Suroza, daughter in law of Marcelina (her
husband, son of Marcelina was confined in the
Veteran’s Hospital), learned of the probate
proceeding when she received the ejectment
order (as she was residing in said house and lot).
Nenita opposed the probate proceeding. She
alleged that the said notarial will is void because
(a) the instituted heir therein Marilyn Suroza is
actually Marilyn Sy and she is a stranger to
Marcelina, (b) the only son of Marcelina,
Agapito Suroza, is still alive and is the
compulsory heir, (c) the notarial will is written
in English a language not known to Marcelina
because the latter was illiterate so much so that
she merely thumbmarked the will, (d) the notary
public who notarized will admitted that
Marcelina never appeared before him and that
he notarized the said will merely to
accommodate the request of a lawyer friend but
with the understanding that Marcelina should
later appear before him but that never
happened.
Honrado still continued with the probate despite
the opposition until testamentary proceeding
closed and the property transferred to Marilyn
Sy.
Nenita then filed this administrative case against
Honrado on the ground of misconduct.
ISSUE: Whether or not Honrado is guilty of
misconduct for admitting into probate a void
will.
HELD: Yes. Despite the valid claim raised by
Nenita, he still continued with the testamentary
proceeding, this showed his wrongful intent. He
may even be criminally liable for knowingly
rendering an unjust judgment or interlocutory
order or rendering a manifestly unjust judgment
or interlocutory order by reason of inexcusable
negligence or ignorance.
The will is written in English and was thumb
marked by an obviously illiterate Marcelina. This
could have readily been perceived by Honrado
that 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.” 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. Had
Honrado 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 to Marilyn Sy as
sole heiress and giving nothing at all to Agapito
who was still alive.
Honrado was fined by the Supreme Court.
IN RE WILL OF ANA ABANGAN. GERTRUDIS
ABANGAN, EXECUTRIX AND APPELLEE, VS.
ANASTACIA ABANGAN ET AL., OPPONENTS AND
APPELLANTS.
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 opponents appealed.
Said document, duly probated as Ana Abangan's
will, i' 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 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
unnecessary; and if they d.o 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.
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 in one sheet only, the object of
the statute disappears because the removal of
this single sheet, although Unnumbered, cannot
be hidden.
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 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 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.
As another ground for this appeal, it is alleged
the records do not show that the testatrix 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.
ALTERNATIVE:
Facts:
1. On September 1917, the CFI of Cebu admitted
to probate Ana Abangan's will executed on July
1916. It is from this decision which the
opponent appealed. It is alleged that the records
do not show the testatrix knew the dialect in
which the will was written.
Issue: Whether or not the will was validly
probated
YES. The circumstance appearing on the will
itself, that it was executed in Cebu City and in
the dialect of the place where the testarix is a
resident is enough to presume that she knew
this dialect in the absence of any proof to the
contrary. On the authority of this case and that
of Gonzales v Laurel, it seems that for the
presumption to apply, the following must
appear: 1) that the will must be in a language or
dialect generally spoken in the place of
execution, and, 2) that the testator must be a
native or resident of the said locality
TESTATE ESTATE OF ABADA vs. ABAJA
FACTS:
Abada and his wife Toray died without
legitimate children. Abaja, filed with CFI of
Negros Occidental a petition for probate of the
will of Abada. The latter allegedly named as his
testamentary heirs his natural children, Eulogio
Abaja and Rosario Cordova. (respondent Abaja
was the son of Eulogio)
One Caponong opposed the position on
the ground that Abaja left no will when he died
and if such was really executed by him it should
be disallowed for the following reasons: (1) it
was not executed and attested as required by
law; (2) it was not intended as the last will of the
testator; and (3) it was procured by undue and
improper pressure and influence on the part of
the beneficiaries. Citing the same grounds
invoked by Caponong, the alleged intestate heirs
of Abada, Joel Abada et. al. also opposed the
petition. The oppositors are the nephews, nieces
and grandchildren of Abada and Toray.
Respondent Abaja filed another petition
for the probate will of Toray. Caponong and Joel
Abada et. al opposed the petition on the same
grounds. Caponong likewise filed a petition
praying for the issuance in his name of letters of
administration of the intestate estate of Abada
and Toray.
RTC admitted the probate will of Toray
since the oppositors did not file any motion for
reconsideration, the order allowing the probate
of Toray’s will became final and executory. The
court also assigned one Caponong-Noble as
special administratix of the estate of Abada and
Toray. Caponong –Noble moved for the dismissal
of the petition for the probate will of Abada
which was denied by the Court.
During the proceeding, the judge found
out that the matter on hand was already
submitted for decision by another judge
admitting the probate will of abada. Since
proper notices to the heirs has been complied
with as well as other requirements, the judge
ruled in favor of the validity of the probate will.
RTC ruled only on the issue raised by the
oppositors in their motions to dismiss the
petition for probate that is whether the will of
Abada has an attestation clause as required by
law. It held that the failure of the oppositors to
raise any other matter forecloses all other
issues. Caponong-Noble filed a notice of appeal.
CA affirmed RTC’s decision.
ISSUE:
Whether or not the CA ruled in
sustaining the RTC admitting the probate will of
Abada.
HELD:
No, CA is correct.
Caponong-Noble proceeds to point out
several defects in the attestation clause.
Caponong-Noble alleges that the attestation
clause fails to state the number of pages on
which the will is written.
The allegation has no merit. The phrase
"en el margen izquierdo de todas y cada una de
las dos hojas de que esta compuesto el mismo"
which means "in the left margin of each and
every one of the two pages consisting of the
same" shows that the will consists of two pages.
The pages are numbered correlatively with the
letters "ONE" and "TWO" as can be gleaned
from the phrase "las cuales estan paginadas
correlativamente con las letras "UNO" y "DOS."
Caponong-Noble further alleges that the
attestation clause fails to state expressly that the
testator signed the will and its every page in the
presence of three witnesses. She then faults the
Court of Appeals for applying to the present
case the rule on substantial compliance found in
Article 809 of the New Civil Code.
The first sentence of the attestation
clause reads: "Suscrito y declarado por el
testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo
tambien el testador firmado en nuestra
presencia en el margen izquierdo de todas y
cada una de las hojas del mismo." The English
translation is: "Subscribed and professed by the
testator Alipio Abada as his last will and
testament in our presence, the testator having
also signed it in our presence on the left margin
of each and every one of the pages of the
same." The attestation clause clearly states that
Abada signed the will and its every page in the
presence of the witnesses.
However, Caponong-Noble is correct in
saying that the attestation clause does not
indicate the number of witnesses. On this point,
the Court agrees with the appellate court in
applying the rule on substantial compliance in
determining the number of witnesses. While the
attestation clause does not state the number of
witnesses, a close inspection of the will shows
that three witnesses signed it.
This Court has applied the rule on
substantial compliance even before the
effectivity of the New Civil Code.
An attestation clause is made for the
purpose of preserving, in permanent form, a
record of the facts attending the execution of
the will, so that in case of failure of the memory
of the subscribing witnesses, or other casualty,
they may still be proved. A will, therefore,
should not be rejected where its attestation
clause serves the purpose of the law. x x x
We rule to apply the liberal construction
in the probate of Abada’s will. Abada’s will
clearly shows four signatures: that of Abada and
of three other persons. It is reasonable to
conclude that there are three witnesses to the
will. The question on the number of the
witnesses is answered by an examination of the
will itself and without the need for presentation
of evidence aliunde. The Court explained the
extent and limits of the rule on liberal
construction, thus:
The so-called liberal rule does not offer
any puzzle or difficulty, nor does it open the
door to serious consequences. The later
decisions do tell us when and where to stop;
they draw the dividing line with precision. They
do not allow evidence aliunde to fill a void in any
part of the document or supply missing details
that should appear in the will itself.l^vvphi1.net
They only permit a probe into the will, an
exploration within its confines, to ascertain its
meaning or to determine the existence or
absence of the requisite formalities of law. This
clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results.
The phrase "en presencia de nosotros" or
"in our presence" coupled with the signatures
appearing on the will itself and after the
attestation clause could only mean that: (1)
Abada subscribed to and professed before the
three witnesses that the document was his last
will, and (2) Abada signed the will and the left
margin of each page of the will in the presence
of these three witnesses.
Finally, Caponong-Noble alleges that the
attestation clause does not expressly state the
circumstances that the witnesses witnessed and
signed the will and all its pages in the presence
of the testator and of each other.
The last part of the attestation clause
states "en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y
del testador." In English, this means "in its
witness, every one of us also signed in our
presence and of the testator." This clearly shows
that the attesting witnesses witnessed the
signing of the will of the testator, and that each
witness signed the will in the presence of one
another and of the testator.
GARCIA v. LACUESTA, ET AL
FACTS:
A will was executed by Antero Mercado wherein
it appears that it was signed by Atty. Florentino
Javiwe who wrote the name of Antero. The
testator was alleged to have written a cross
immediately after his name. The Court of First
Instance found that the will was valid but the
Court of Appeals reversed the lower court’s
decision holding 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. 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 witnesses signed the will in all the pages
thereon in the presence of the testator and of
each other. Hence, this appeal.
ISSUE:
Whether or not the attestation clause is valid.
HELD:
The attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty.
Javier to write the testator’s name under his
express direction, as required by section 168 of
the Code of Civil Procedure. 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, the SC is 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.
Ortega v. Valmonte
478 SCRA 247
FACTS:
Two years after the arrival of Placido from the
United States and at the age of 80 he wed
Josefina who was then 28 years old. But in a
little more than two years of wedded bliss,
Placido died. Placido executed a notarial last will
and testament written in English and consisting
of 2 pages, and dated 15 June 1983 ̧ but
acknowledged only on 9 August 1983. The
allowance to probate of this will was opposed by
Leticia, Placido’s sister.
According to the notary public who notarized
the testator’s will, after the testator instructed
him on the terms and dispositions he wanted on
the will, the notary public told them to come
back on 15 August 1983 to give him time to
prepare.
The testator and his witnesses returned on the
appointed date but the notary public was out of
town so they were instructed by his wife to
come back on 9 August 1983. The formal
execution was actually on 9 August 1983.
He reasoned he no longer changed the
typewritten date of 15 June 1983 because he did
not like the document to appear dirty.
Petitioner’s argument: 1. At the time of the
execution of the notarial will Placido was already
83 years old and was no longer of sound mind.
2. Josefina conspired with the notary public and
the 3 attesting witnesses in deceiving Placido to
sign it. Deception is allegedly reflected in the
varying dates of the execution and the
attestation of the will.
ISSUE:
1. W/N Placido has testamentary capacity at the
time he allegedly executed the will.
2. W/N the signature of Placido in the will was
procured by fraud or trickery.
HELD:
1. YES. Despite his advanced age, he was still
able to identify accurately the kinds of property
he owned, the extent of his shares in them and
even their location. As regards the proper
objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. The
omission of some relatives from the will did not
affect its formal
validity. There being no showing of fraud in its
execution, intent in its disposition becomes
irrelevant.
2. NO. Fraud is a trick, secret devise, false
statement, or pretense, by which the subject of
it is cheated. It may be of such character that
the testator is misled or deceived as to the
nature or contents of the document which he
executes, or it may relate to some extrinsic fact,
in consequence of the deception regarding
which the testator is led to make a certain will
which, but for fraud, he would not have made.
The party challenging the will bears the burden
of proving the existence of fraud at the time of
its execution. The burden to show otherwise
shifts to the proponent of the will
only upon a showing of credible evidence of
fraud. Omission of some relatives does not
affect the due execution of a will. Moreover, the
conflict between the dates appearing on the will
does not invalidate the document, “because the
law does not even require that a notarial will be
executed and acknowledged on the same
occasion. The variance in the dates of the will as
to its supposed execution and attestation was
satisfactorily and persuasively explained by the
notary public and instrumental witnesses.
Ortega v. Valmonte
478 SCRA 247
FACTS:
Two years after the arrival of Placido from the
United States and at the age of 80 he wed
Josefina who was then 28 years old. But in a
little more than two years of wedded bliss,
Placido died.
Placido executed a notarial last will and
testament written in English and consisting of 2
pages, and dated 15 June 1983¸but
acknowledged only on 9 August 1983. The
allowance to probate of this will was opposed by
Leticia, Placido’s sister.
According to the notary public who notarized
the testator’s will, after the testator instructed
him on the terms and dispositions he wanted on
the will, the notary public told them to come
back on 15 August 1983 to give him time to
prepare.
The testator and his witnesses returned on the
appointed date but the notary public was out of
town so they were instructed by his wife to
come back on 9 August 1983. The formal
execution was actually on 9 August 1983.
He reasoned he no longer changed the
typewritten date of 15 June 1983 because he did
not like the document to appear dirty.
Petitioner’s argument:
1. At the time of the execution of the notarial
will Placido was already 83 years old and was no
longer of sound mind.
2. Josefina conspired with the notary public and
the 3 attesting witnesses in deceiving Placido to
sign it. Deception is allegedly reflected in the
varying dates of the execution and the
attestation of the will.
ISSUE:
1. W/N Placido has testamentary capacity at the
time he allegedly executed the will.
2. W/N the signature of Placido in the will was
procured by fraud or trickery.
HELD:
1. YES. Despite his advanced age, he was still
able to identify accurately the kinds of property
he owned, the extent of his shares in them and
even their location. As regards the proper
objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. The
omission of some relatives from the will did not
affect its formal validity. There being no showing
of fraud in its execution, intent in its disposition
becomes irrelevant.
2. NO. Fraud is a trick, secret devise, false
statement, or pretense, by which the subject of
it is cheated. It may be of such character that
the testator is misled or deceived as to the
nature or contents of the document which he
executes, or it may relate to some extrinsic fact,
in consequence of the deception regarding
which the testator is led to make a certain will
which, but for fraud, he would not have made.
The party challenging the will bears the burden
of proving the existence of fraud at the time of
its execution.
The burden to show otherwise shifts to the
proponent of the will only upon a showing of
credible evidence of fraud.
Omission of some relatives does not affect the
due execution of a will.
Moreover, the conflict between the dates
appearing on the will does not invalidate the
document, “because the law does not even
require that a notarial will be executed and
acknowledged on the same occasion.
The variance in the dates of the will as to its
supposed execution and attestation was
satisfactorily and persuasively explained by the
notary public and instrumental witnesses.
Barut vs. Cabacungan
G.R. L-6825 Febriary 15, 1912
Ponente: SC Justice Moreland
Facts:
1.Pedro Barut applied for the probate of the will
of Maria Salomon. It is alleged in the petition
that testatrix died on Nov. 1908 in Sinait, Ilocos
Sur leaving the will dated March 3, 1907. The
said will was witnessed by 3 persons. From the
terms it appears that the petitioner received a
larger part of decedent's property. After this
disposition, the testatrix revoked all other wills
and stated that since she is unable to read nor
write, the will was read to her and that she has
instructed Severino Agapan, one of the
witnesses to sign her name in her behalf.
2. The lower court ruled that the will is not
entitled to probate on the sole ground that the
handwriting of the person who signed the name
of the testatrix does not appear to be that of
Agapan but that of another witness.
Issue: Whether or not a will's validity is affected
when the person instructed by a testator to
write his name did not sign his name
HELD: No, it is immaterial who wrote the name
of the testator provided it is written at her
request and in her present, and in the presence
of the witnesses. This is the only requirement
under Sec. 618 of the Civil Code of procedure at
that time.
Payad vs. Tolentino G.R. No. 42258. January 15,
1936
Victorio Payad filed a petition for the probate of
the will of the decedent Leoncia Tolentino. This
was opposed by Aquilina Tolentino, averring that
said Will was made only after the death of the
testatrix. The lower court denied the probate of
the will on the ground that the attestation
clause was not in conformity with the
requirements of the law since it was not stated
therein that the testatrix caused Atty. Almario to
write her name at her express direction. Hence,
this petition.
Was it necessary that the attestation clause
state that the testatrix caused Atty. Almario to
write her name at her express direction?
The evidence of record establishes the fact the
Leoncia Tolentino, assisted by Attorney Almario,
placed her thumb mark on each and every page
of the questioned will and that said attorney
merely wrote her name to indicate the place
where she placed said thumb mark. In other
words Attorney Almario did not sign for the
testatrix. She signed by placing her thumb mark
on each and every page thereof. “A statute
requiring a will to be ‘signed’ is satisfied if the
signature is made by the testator’s mark.”
(Quoted by this court from 28 R. C. L., p. 117; De
Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It
is clear, therefore, that it was not necessary that
the attestation clause in question should state
that the testatrix requested Attorney Almario to
sign her name inasmuch as the testatrix signed
the will in question in accordance with law.
Payad vs. Tolentino
G.R. No. 42258. January 15, 1936
FACTS :
Victorio Payad filed a petition for the probate of
the will of the decedent Leoncia Tolentino. This
was opposed by Aquilina Tolentino, averring that
said Will was made only after the death of the
testatrix. The lower court denied the probate of
the will on the ground that the attestation
clause was not in conformity with the
requirements of the law since it was not stated
therein that the testatrix caused Atty. Almario to
write her name at her express direction. Hence,
this petition.
I
SSUE :
Was it necessary that the attestation clause
state that the testatrix caused Atty. Almario to
write her name at her express direction?
HELD
The evidence of record establishes the fact the
Leoncia Tolentino, assisted by Attorney Almario,
placed her thumb mark on each and every page
of the questioned will and that said attorney
merely wrote her name to indicate the place
where she placed said thumb mark.
In other words Attorney Almario did not sign for
the testatrix. She signed by placing her thumb
mark on each and every page thereof.
"A statute requiring a will to be 'signed' is
satisfied if the signature is made by the
testator's mark." (Quoted by this court from 28
R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53
Phil., 104, 108.) It is clear, therefore, that it was
not necessary that the attestation clause in
question should state that the testatrix
requested Attorney Almario to sign her name
inasmuch as the testatrix signed the will in
question in accordance with law.
Testate Estate of Cagro vs. Cagro
G.R. L-5826
Facts:
1. The case is an appeal interposed by the
oppositors from a decision of the CFI of Samar
which admitted to probate a will allegedly
executed by Vicente Cagro who died in
Pambujan, Samar on Feb. 14, 1949.
2. The appellants insisted that the will is
defective because the attestation was not signed
by the witnesses at the bottom although the
page containing the same was signed by the
witnesses on the left hand margin.
3. Petitioner contended that the signatures of
the 3 witnesses on the left hand margin conform
substantially to law and may be deemed as their
signatures to the attestation clause.
Issue: Whether or not the will is valid
HELD: Will is not valid. The attestation clause is a
memorandum of the facts attending the
execution of the will. It is 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
negatives their participation.
Moreover, the signatures affixed on the let hand
margin is not substantial conformance to the
law. The said signatures were merely in
conformance with the requirement that the will
must be signed on the left-hand margin of all its
pages. If the attestation clause is unsigned by
the 3 witnesses at the bottom, it would be
easier to add clauses to a will on a subsequent
occasion and in the absence of the testator and
any or all of the witnesses.
The probate of the will is denied.
APOLONIO TABOADA vs. HON. AVELINO ROSAL
118 SCRA 195
November 5, 1982
Facts:
Apolonio Taboada, herein petitioner, filed with
the respondent court a petition for probate of
the will. He attached the subject last will and
testament of the late Dorotea Perez. Written in
the Cebuano-Visayan 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
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 attesting
witnesses and at the left hand margin by the
testatrix.
Since no opposition was filed after the
requirement of publication was complied with,
the clerk of court received the petitioner's
evidence. Accordingly, the petitioner submitted
his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will. The
trial court denied the probate of the will of
Dorotea Perez for want of a formality in its
execution. It also required the petitioner 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.
Petitioner filed a motion for reconsideration of
the order denying the probate of the will and a
manifestation and/or motion ex parte. The said
motions were still pending resolution when
respondent Judge Avelino Rosal assumed the
position of presiding judge of the respondent
court. Subsequently, the new Judge denied all
the filed motions. Hence, this present petition.
Issue:
Whether or not 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
Ruling:
No. 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. 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.
In the case at bar, the objects of attestation and
of subscription were fully met and satisfied
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 the
subscribing witness to be the same will executed
by the testatrix. There was no question of fraud
or substitution behind the questioned order.
Moreover, 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.”
Javellana vs. Ledesma
G.R. No. L-7179
Facts:
1. The CFI of Iloilo admitted to probate a will and
codicil executed by the deceased Apolinaria
Ledesma in July 1953. This testament was
deemed executed on May 1950 and May 1952.
The contestant was the sister and nearest
surviving relative of the deceased. She appealed
from this decision alleging that the will were not
executed in accordance with law.
2. The testament was executed at the house of
the testatrix. One the other hand, the codicil
was executed after the enactment of the New
Civil Code (NCC), and therefore had to be
acknowledged before a notary public. Now, the
contestant, who happens to be one of the
instrumental witnesses asserted that after the
codicil was signed and attested at the San Pablo
hospital, that Gimotea (the notary) signed and
sealed it on the same occasion. Gimotea,
however, said that he did not do so, and that the
act of signing and sealing was done afterwards.
2. One of the allegations was that the certificate
of acknowledgement to the codicil was signed
somewhere else or in the office of the notary.
The ix and the witnesses at the hospital, was
signed and sealed by the notary only when he
brought it in his office.
Issue: Whether or not the signing and sealing of
the will or codicil in the absence of the testator
and witnesses affects the validity of the will
RULING: NO. Unlike in the Old Civil Code of
1899, the NCC does not require that the signing
of the testator, the witnesses and the notary be
accomplished in one single act. All that is
required is that every will must be
acknowledged before a notary public by the
testator and witnesses. The subsequent signing
and sealing is not part of the acknowledgement
itself nor of the testamentary act. Their separate
execution out of the presence of the testator
and the witnesses cannot be a violation of the
rule that testaments should be completed
without interruption.
Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:
Facts:
1. The CFI of Cebu allowed the probate of the
last will and testament of the late Valenti Cruz.
However, the petitioner opposed the allowance
of the will alleging that it was executed through
fraud, deceit, misrepresentation, and undue
influence. He further alleged that the
instrument was executed without the testator
having been informed of its contents and finally,
that it was not executed in accordance with law.
2. One of the witnesses, Angel Tevel Jr. was also
the notary before whom the will was
acknowledged. Despite the objection, the lower
court admitted the will to probate on the ground
that there is substantial compliance with the
legal requirements of having at least 3 witnesses
even if the notary public was one of them.
Issue: Whether or not the will is valid in
accordance with Art. 805 and 806 of the NCC
HELD: NO.
The will is not valid. The notary public cannot be
considered as the third instrumental witness
since he cannot acknowledge before himself his
having signed the said will. An acknowledging
officer cannot serve as witness at the same
time.
To acknowledge before means to avow, or to
own as genuine, to assent, admit, and 'before'
means in front of or preceding in space or ahead
of. The notary cannot split his personality into
two so that one will appear before the other to
acknowledge his participation int he making of
the will. To permit such situation would be
absurd.
Finally, the function of a notary among others is
to guard against any illegal or immoral
arrangements, a function defeated if he were to
be one of the attesting or instrumental
witnesses. He would be interested in sustaining
the validity of the will as it directly involves
himself and the validity of his own act. he would
be in an inconsistent position, thwarting the
very purpose of the acknowledgment, which is
to minimize fraud.
GARCIA v GATCHALIAN
FACTS:
1. This is an appeal taken by Pedro Reyes Garcia
from the decision of the
Court of First Instance of Rizal in Special
Proceedings
- denying the allowance of the will of the
late Gregorio Gatchalian,
on the ground that the attesting
witnesses did not acknowledge
it before a notary public, as required by
law.
2. On March 15, 1967, Gregorio Gatchalian, a
widower of 71 years of age, died in the
municipality of Pasig, Province of Rizal, leaving
no forced heirs.
3. On April 2 of the same year, appellant filed a
petition with the above named court for the
probate of said alleged will (Exhibit "C") wherein
he was instituted as sole heir.
4. Felipe Gatchalian, Aurora G. Camins, Angeles
G. Cosca, Federico G. Tubog, Virginia G. Talanay
and Angeles G. Talanay, appellees herein,
opposed the petition on the ground, among
others:
- that the will was procured by fraud;
that the deceased did not intend the
instrument signed by him to be as his
will;
- and that the deceased was physically
and mentally incapable of making a will
at the time of the alleged execution of
said will.
5. After due trial, the court rendered the
appealed decision finding the document Exhibit
"C" to be the authentic last will of the deceased
but disallowing it for failure to comply with the
mandatory requirement of Article 806 of the
New Civil Code — that the will must be
acknowledged before a notary public by the
testator and the witnesses.
ISSUE:
WON the will was executed in accordance of Art
806 of the New Civil Code?
HELD:
NO
1. Article 806 of the New Civil Code reads as
follows:
Every will must be acknowledged before a
notary public by the testator and 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.
2. We have held heretofore that compliance
with the requirement contained in the above
 legal provision to the effect that a will must be
acknowledged before a notary public by the
testator and also by the witnesses is
indispensable for its validity
- As the document under consideration does not
comply with this requirement, it is obvious that
the same may not be probated.
DISPOSITIVE:
WHEREFORE, the decision appealed from is
affirmed, with costs.
GABUCAN vs MANTA
o DOCUMENTARY STAMP TAX: Rule on
Admissibility of Document as Evidence
FACTS:
This case is about the dismissal of a petition for
the probate of the notarial will of the late
Rogaciano Gabucan on the ground that it does
not bear a thirty-centavo documentary stamp.
The probate court refused to reconsider the
dismissal in spite of petitioner’s manifestation
that he had already attached the documentary
stamp to the original of the will.
ISSUE:
W/N the probate correct was correct in
dismissing the petition on the ground of failure
to affix the documentary stamp to the will
HELD:
The Court held that the lower court manifestly
erred in declaring that, because no documentary
stamp was affixed to the will, there was “no will
and testament to probate” and, consequently,
the alleged “action must of necessity be
dismissed.”
What the probate court should have done was
to require the petitioner or proponent to affix
the requisite thirty-centavo documentary stamp
to the notarial acknowledgment of the will
which is the taxable portion of that document.
The documentary stamp may be affixed at the
time the taxable document is presented in
evidence.
ALTERNATIVE:
TOPIC: Effect of failure to attach stamp to
taxable document, instrument or paper.
DOCTRINE:
A taxable instrument, document or paper which
does not bear the stamp shall not be recorded,
nor shall it or any copy thereof or any record of
transfer of the same be admitted or used in
evidence in any court. The non-admissibility of
the document, which does not bear the
requisite documentary stamp, subsists only
"until the requisite stamp or stamps shall have
been affixed thereto and cancelled." (Sec. 201
NIRC)
FACTS:
The CFI dismissed the probate proceedings for
the will of the late Rogaciano Gabucan. The
proceeding was dismissed because the requisite
documentary stamp was not affixed to the
notarial acknowledgment in the will and, hence,
according to the CFI, it was not admissible in
evidence, citing section 238 of the Tax Code,
now section 201 NIRC 1997.
ISSUE: Whether or not the proceeding should be
dismissed because the will was not duly
stamped.
HELD:
No. The CFI dismissed the case and even the
motion for reconsideration wherein petitioner
was already manifesting that he had already
attached the stamp to the original of the will.
The CFI erred in declaring that, because no
documentary stamp was affixed to the will,
there was "no will and testament to probate"
and, consequently, the alleged "action must of
necessity be dismissed". Instead, the court
should have allowed the petitioner to tender the
stamp in order to correct the deficiency. The
non-admissibility of the document, which does
not bear the requisite documentary stamp,
subsists only "until the requisite stamp or
stamps shall have been affixed thereto and
cancelled."

Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969
Fernando, J (Ponente)
Facts:
1. Gliceria del Rosario executed 2 wills, one in
June 1956, written in Spanish, a language she
knew an spoke. The other will was executed in
December 1960 consisting of only one page, and
written in Tagalog. The witnesses to the 1960
will declared that the will was first read 'silently'
by the testatrix before signing it. The probate
court admitted the will.
2. The oppositors alleged that the as of
December 1960, the eyesight of the deceased
was so poor and defective that she could not
have read the provisions contrary to the
testimony of the witnesses.
Issue: Whether or not the will is valid
RULING: The will is not valid. If the testator is
blind, Art. 808 of the New Civil Code (NCC)
should apply.If the testator is blind or incapable
of reading, he must be apprised of the contents
of the will for him to be able to have the
opportunityto object if the provisions therein
are not in accordance with his wishes.
The testimony of her opthalmologist established
that notwithstanding an operation to remove
her cataract and being fitted with the lenses,
this did not improve her vision. Her vision
remained mainly for viewing distant objects and
not for reading. There was no evidence that her
vision improved at the time of the execution of
the 2nd will. Hence, she was incapable of
reading her own will. The admission of the will
to probate is therefor erroneous.
ALVARADO vs. GAVIOLA
FACTS:
The testator did not read the final draft
of the will himself. Instead, private respondent,
as the lawyer who drafted the 8-paged
document, read the same aloud in the presence
of the testator, the 3 instrumental witnesses and
the notary public. The latter 4 followed the
reading with their own respective copies
previously furnished them.
Said will was admitted to probate. Later
on, a codicil was executed, and by that time, the
testator was already 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.
ISSUE:
Was there substantial compliance to the
reading of the will?
HELD:
Article 808 not only applies to blind
testators, but also to those who, for one reason
or another, are incapable of reading their
wills. Hence, the will should have been read by
the notary public and an instrumental witness.
However, the spirit behind the law was served
though the letter was not. In this case, there
was substantial compliance. Substantial
compliance is acceptable where the purpose of
the law has been satisfied, the reason being that
the solemnities surrounding the execution of
wills are intended to protect the testator from
all kinds of fraud and trickery but are never
intended to be so rigid and inflexible as to
destroy the testamentary privilege.
 In this case, 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.