DE LA CERNA v. POTOT b.
"while each of the testators is yet living, he or she will continue to
December 23, 1964 | REYES, JBL, J.| Wills > Joint Wills
PETITIONERS: PAULA DE LA CERNA
RESPONDENTS: FLORENDO, ET AL.
SUMMARY:
Spouses de la Cerna executed a joint will in favor of their niece. When
Bernabe (the husband) died the Gervasia (widow) and Manuela (niece and
heir) submitted the will to probate before the CFI which found the will as
valid. Upon the death of Gervasia the same will was submitted for probate
and the CFI declared the will as null and void for being contrary to the
prohibition against joint wills. The CA reversed holding that the decision of
the CFI declaring the will as valid (when Bernabe died) was final and
conclusive on its execution. The SC affirmed the CA decision holding that
even if the CFI made an error of law in declaring the joint will as valid, this
decision was not appealed to and thus it became final. But the SC noted
that this decision is only conclusive as to the Bernabe’s part in the conjugal
partnership and not Gervasia’s which must be reexamined and adjudicated
to her intestate heirs.
DOCTRINE:
- A final decree of probate has conclusive effect as to a last will and
testament despite the fact that the Civil Code already decreed the
invalidity of joint wills, whether in favor of the joint testators,
reciprocally, or in favor of a third party
- The validity of the joint will, in so far as the estate of the one of the
testators was concerned, must be, on his/her death, reexamined
and adjudicated de novo, since a joint will is considered a separate
will of each testator
FACTS:
1. On May 9, 1939, the spouses, Bernabe de la Serna and Gervasia
Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that:
a. "our two parcels of land acquired during our marriage together with
all improvements thereon shall be given to Manuela Rebaca, our
niece, whom we have nurtured since childhood, because God did
not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot", and
enjoy the fruits of the two lands aforementioned"
2. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was
submitted to probate by said Gervasia and Manuela before the Court of
First Instance of Cebu which declared the document as the last will and
testament of dela Serna which gave rights to Gervasia (widow and other
testator) to enjoy the fruits described and gave rights to the parcels of
land and its improvements to Manuela Rebeca de Potot
3. Upon the death of Gervasia Rebaca, another petition for the probate of
the same will insofar as Gervasia was concerned was filed, but for
failure of the petitioner, Manuela R. Potot to appear, the case was
dismissed.
a. CFI declared the testament null and void, for being executed
contrary to the prohibition of joint wills in the Civil Code (Art. 669,
Civil Code of 1889 and Art. 818, Civil Code of the Philippines)
4. CA reversed on the ground that the decree of probate in 1939 was
issued by a court of probate jurisdiction and conclusive on the due
execution of the testament
a. “The law prohibits the making of a will jointly by two or more
persons either for their reciprocal benefit or for the benefit of a third
person. However, this form of will has long been sanctioned by use,
and the same has continued to be used; and when one such joint
last will and testament has been admitted to probate by final order
of a Court of competent jurisdiction, there seems to be no
alternative except to give effect to the provisions thereof that are not
contrary to law”
5. Hence the present appeal by the heirs of the intestate Bernabe de la
Cerna
ISSUE: WN the decision of the probate court rendered conclusive the
execution of the joint will - YES
HELD:
1. SC affirmed the CA decision holding that the final decree of probate,
entered in 1939 by CFI (when Bernabe de la Cerna died) has
conclusive effect as to his last will and testament despite the fact
that even then the Civil Code already decreed the invalidity of joint
 wills, whether in favor of the joint testators, reciprocally, or in favor
of a third party (Art. 669, old Civil Code).
2. The error thus committed by the probate court was an error of law,
that should have been corrected by appeal, but which did not affect
the jurisdiction of the probate court, nor the conclusive effect of its
final decision, however erroneous.
3. A final judgment rendered on a petition for the probate of a will is
binding upon the whole world; public policy and sound practice
demand that at the risk of occasional errors judgment of courts
should become final at some definite date fixed by law.
4. Petitioners, as heirs and successors of the late Bernabe de la Cerna,
are concluded by the 1939 decree admitting his will to probate.
5. But the Court of Appeals should have taken into account also, to
avoid future misunderstanding, that the probate decree in 1989
could only affect the share of the deceased husband, Bernabe de la
Cerna. It could not include the disposition of the share of the wife,
Gervasia Rebaca, who was then still alive.
6. It follows that the validity of the joint will, in so far as the estate of
the wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will
of each testator.
7. Thus regarded, the holding of the court of First Instance of Cebu
that the joint will is one prohibited by law was correct as to the
participation of the deceased Gervasia Rebaca in the properties in
question.
8. Therefore, the undivided interest of Gervasia Rebaca should pass
upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is shown
to exist, or unless she be the only heir intestate of said Gervasia.
Dacanay v. Florendo
1950 | J. Ozaeta
PETITIONERS: Testate estate of Isabel V. Florendo, deceased. TIRSO
DACANAY, petitioner-appellant
RESPONDENTS: FLORENDO, ET AL., oppositor-appellees
SUMMARY: Surviving spouse Tirso sought to probate his and his deceased
spouse’s joint and reciprocal will. Court denied as joint wills are prohibited.
DOCTRINE: (REASON WHY JOINT WILLS ARE PROHIBITED) When a will is
made jointly or in the same instrument, the spouse who is more aggressive,
stronger in will or character and dominant is liable to dictate the terms of the
will for his or her own benefit or for that of third persons whom he or she
desires to favor. And, where the will is not only joint but reciprocal, either
one of the spouses who may happen to be unscrupulous, wicked, faithless
or desperate, knowing as he or she does the terms of the will whereby the
whole property of the spouses both conjugal and paraphernal goes to the
survivor, may be tempted to kill or dispose of the other.
FACTS:
1. Tirso Dacanay, Isabel V. Florendo’s surviving spouse, is seeking to
probate said joint and reciprocal will, which provides in substance
that whoever of the spouses, joint testators, shall survive the other,
shall inherit all the properties of the latter, with an agreement as to
how the surviving spouse shall dispose of the properties in case of
his or her demise. Isabels relatives opposed the probate of said will.
2. TC dismissed on the ground that said will is null and void ab initio as
having been executed in violation of article 669 of the Civil Code.
From that order the proponent of the will has appealed.
3. Tirso argues that article 669 of the Civil Code has been repealed by
Act. No. 190, which he claims provides for and regulates the
extrinsic formalities of wills, contending that whether two wills
should be executed conjointly or separately is but a matter of
extrinsic formality.
ISSUE: W/N the said joint and reciprocal will may be probated in view of
article 669 of the Civil Code → NO.
RULES: ART. 669. Two or more persons cannot make a will conjointly or in
the same instrument, either for their reciprocal benefit or for the benefit of a
third person.
HELD:
1. The prohibition of Art 669 is directed against the execution of a joint
will, or the expression by two or more testators of their wills in a
single document and by one act, rather than against mutual or
reciprocal wills, which may be separately executed. Upon this
premise, however, appellant argues that article 669 of the Civil Code
has been repealed by Act. No. 190, which he claims provides for
and regulates the extrinsic formalities of wills, contending that
whether two wills should be executed conjointly or separately is but
a matter of extrinsic formality.
2. See DOCTRINE
AFFIRMED
OTHER NOTES: in In re Will of Victor Bilbao was cited. In that case, the
spouses executed a will conjointly, whereby they directed that "all of our
respective private properties both real and personal, and all of our conjugal
properties, and any other property belonging to either or both of us, be
given and transmitted to anyone or either of us, who may survive the other,
or who may remain the surviving spouse of the other." That will was denied
probate by the because it was prohibited by article 669 of the Civil Code.
The surviving spouse as proponent of the joint will also contended that said
article of the Civil Code has been repealed by sections 614 and 618 of the
Code of Civil Procedure, Act No. 190.
ORTEGA v. VALMONTE
Dec. 16, 2005| G.R. No. 157451| Testamentary Capacity
SUMMARY: Placido Valmonte worked and lived in the US until he retired. He
came back to the Philippines and married Josefina (28 y.o.) when he was 80.
About two years later, he died leaving a will which bequeathed his share of
their residential house and lot co-owned by him with his sister, and all his
other real and personal properties to Josefina. Alleging there was fraud in its
execution, petitioner Leticia, assails the validity of Placido Valmonte’s will,
challenging the testator’s state of mind at the time. The Court held that the
petitioners failed to prove fraud. The fact that other relatives are excluded in
the will does not affect its due execution. The discrepancy in the date the will
was signed and the date of the formal execution of the will does not
invalidate it either. Regarding Placido’s testamentary capacity, the Court held
that he was of sound mind by the standards laid down in Article 799, despite
being 83 at the time of execution.
DOCTRINE: According to Article 799, the three things that the testator must
have the ability to know to be considered of sound mind are as follows: (1)
the nature of the estate to be disposed of, (2) the proper objects of the
testator’s bounty, and (3) the character of the testamentary act
FACTS:
● Placido toiled and lived for a long time in the United States until he
finally reached retirement. In 1980, Placido finally came home to stay
in the Philippines, and he lived in San Antonio Village, Makati, which
he owned in common with his sister Ciriaca Valmonte.
● Two years after his arrival 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 on October 8, 1984 due
to abnormal enlargement of the right side of the heart.
● Placido executed a notarial last will and testament written in English
and consisting of two pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. (Basically he wants to be
buried in the Catholic Cemetery. Leaving everything to his wife, his
share of the house and lot co-owned by him and his sister, all his
remaining real and personal properties, and appointing her as sole
executrix.)
● This was opposed by Leticia on the grounds of:
○ 1. Non-compliance with the legal solemnities and formalities
in the execution and attestation of the will; and 2. Mental
 incapacity of the testator at the time of the execution of
the will as he was then in an advanced state of senility.
● Josefina testified that she had no knowledge of the existence of the
last will and testament of her husband, but just serendipitously found
it in his attache case after his death.
● Josefina declared too that the testator never suffered mental
infirmity because despite his old age he went alone to the market
which is two to three kilometers from their home cooked and cleaned
the kitchen and sometimes if she could not accompany him, even
traveled to Manila alone to claim his monthly pension.
● Josefina also asserts that her husband was in good health and
that he was hospitalized only because of a cold but which
eventually resulted in his death.
● The Notary Public Sarmiento testified that though it appears that the
will was signed by the testator and his witnesses on June 15, 1983,
the day when it should have been executed had he not gone out of
town, the formal execution was actually on August 9, 1983. (His wife
asked Placido and his witnesses to come back.) He reasoned that he
no longer changed the typewritten date of June 15, 1983 because he
did not like the document to appear dirty.
● The notary public also testified that to his observation the
testator was physically and mentally capable at the time he
affixed his signature on the will.
● RTC disallowed probate but the CA admitted the will to probate.
Issues:
1. Whether the signature of Placido Valmonte in the subject will
was procured by fraud or trickery, and that Placido Valmonte
never intended that the instrument should be his last will and
testament– NO.
● Leticia alleges that respondent conspired with the notary public and
the three attesting witnesses in deceiving Placido to sign it.
● Petitioner contends that it was ―highly dubious for a woman at the
prime of her young life [to] almost immediately plunge into marriage
with a man who [was] thrice her age x x x and who happened to be
[a] Fil-American pensionado,‖ thus casting doubt on the intention of
respondent in seeking the probate of the will.
● Fraud ―is a trick, secret device, 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 the fraud, he would not have
made.
● We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution.
Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented.
● It is a settled doctrine that the omission of some relatives does not
affect the due execution of a will. That the testator was tricked into
signing it was not sufficiently established by the fact that he had
instituted his wife, who was more than fifty years his junior, as the
sole beneficiary; and disregarded petitioner and her family, who were
the ones who had taken ―the cudgels of taking care of [the testator]
in his twilight years.‖
● Moreover, as correctly ruled by the appellate court, 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 x x x be executed and acknowledged on the same occasion.‖
2. Whether Placido Valmonte has testamentary capacity at the time he
allegedly executed the subject will– YES.
● According to Article 799, the three things that the testator must have
the ability to know to be considered of sound mind are as follows: (1)
the nature of the estate to be disposed of, (2) the proper objects of
the testator’s bounty, and (3) the character of the testamentary act.
Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the
time of the execution of his will.
● It must be noted that 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 locations.
● As regards the proper objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. As we have stated earlier, 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.
● Alsua-Betts v. CA:
○ Between the highest degree of soundness of mind and
memory which unquestionably carries with it full
testamentary capacity, and that degrees of mental aberration
generally known as insanity or idiocy, there are numberless
degrees of mental capacity or incapacity and while on one
hand it has been held that mere weakness of mind, or partial
imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has
understanding and memory sufficient to enable him to know
what he is about to do and how or to whom he is disposing
of his property. To constitute a sound and disposing mind, it
is not necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held that
testamentary incapacity does not necessarily require that a
person shall actually be insane or of unsound mind.
SUROZA v. HONRADO
December 19, 1981 | Aquino, J. | Wills > Forms > In general
PETITIONER: NENITA DE VERA SUROZA
RESPONDENT: JUDGE REYNALDO P. HONRADO of the Court of First
Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy
Clerk of Court
SUMMARY: Marcelina Suroza’s will was admitted by Judge Honrado to
probate despite the English document being read in translated Filipino to
Marcelina and merely thumbmarked by her. SC ruled that it was a void will.
DOCTRINE: The will should be written in a language known to the
testator. See Ratio 2.
FACTS:
1. In 1973, Marcelina Suroza supposedly executed a notarial will
bequeathing her house and lot to Marilyn Suroza. In 1974, Marcelina died.
Marina Paje was named as executrix in the said will and she petitioned CFI
Rizal for the to will be admitted to probate. Presiding judge Honrado
admitted the will and assigned Paje as the administratrix. Honrado also
issued an ejectment order against occupants of the house and lot subject
of the will.
2. Nenita Suroza, daughter in law of Marcelina (her husband was
confined in Veteran’s Hospital), learned of the probate proceeding when
she received the ejectment order (as she was residing in said house and
lot).
3. Nenita opposed the probate proceeding, alleging that the said notarial
will is void as:
a. the instituted heir Marilyn Suroza is actually Marilyn Sy,
stranger to Marcelina,
b. the only son of Marcelina, Agapito Suroza, is still alive as
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 he only
notarized the will to accommodate the request of a lawyer friend
 on condition that Marcelina appear before him later, which she did NOBLE v. ABAJA
not do. Jan. 31, 2005 |Carpio, J. |Forms In General
4. Honrado continued with probate despite opposition until testamentary
proceeding closed and the property transferred to Marilyn Sy. Nenita filed
Testate Estate of the Late Alipio Abada, Belinda Caponong-Noble vs.
this administrative case against Honrado on the ground of misconduct.
Alipio Abaja and Noel Abellar

ISSUE: Whether Honrado is guilty of misconduct for admitting into probate

SUMMARY: Alipio Abada and Paula Toray died in the 1940s. In 1968,
a void will—YES.
their grandson, Alipio, filed a petition for the probate of the last will
and testament of Abada, where Abada named Eulogio Abaja (Alipio’s
DISPOSITIVE: WHEREFORE, for inefficiency in handling the testate case
father) as one of his heirs. Naturally, the petition for the probate
of Marcelina S. Suroza, a fine equivalent to his salary for one month is
proceedings was opposed by Nicanor Caponong and other intestate
imposed on respondent judge (his compulsory retirement falls on
heirs of Abada who are his nephews, nieces, and grandchildren. They
December 25, 1981). The case against respondent Yuipco has become
alleged that the will of Abada failed to comply with formal
moot and academic because she is no longer employed in the judiciary.
requirements of the will and hence are invalid. RTC and CA both ruled
Since September 1, 1980 she has been assistant city fiscal of Surigao City.
in favour of Alipio and allowed probate proceedings. SC ruled
She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
similarly. The main argument of the petitioners were 1: that the
Matter No. 2044-CFI)
attestation clause in the will failed to state the number of pages on
which the will is written, and 2: that the attestation clause fails to state
HELD:
expressly that the testator signed the will and its every page in the
1. Despite the valid claim raised by Nenita, Honrado continued with the
presence of three witnesses. On the first argument, the Court said that
testamentary proceeding, showing wrongful intent. He maybe criminally
there is a phrase which can be found in the left margin of each and
liable for knowingly rendering an unjust judgment or interlocutory order or
every one of the two pages shows that the will consists of two pages.
rendering a manifestly unjust judgment or interlocutory order by reason of
On the second argument, the Court said that while indeed the
inexcusable negligence or ignorance.
attestation clause did not indicate the number of witnesses, the
2. The will is written in English and was thumb marked by an obviously
Substantial Compliance rule is rightly applicable in this case and that
illiterate Marcelina. It could have readily been perceived that that the will is
the will clearly shows four signatures: that of Abada and of three other
void. In the opening paragraph of the will, it was stated that English was a
persons. It is reasonable to conclude that there are three witnesses to
language “understood and known” to the testatrix. In its concluding
the will. (Note: The Will is Spanish)
paragraph, the will was read to the testatrix “and translated into Filipino
DOCTRINE: An attestation clause is made for the purpose of
language.” That could only mean that the will was written in a language not
preserving, in permanent form, a record of the facts attending the
known to the illiterate testatrix and it is void as Article 804 of the Civil Code
execution of the will, so that in case of failure of the memory of the
orders that every will must be executed in a language or dialect known to
subscribing witnesses, or other casualty, they may still be proved. A
the testator. Had Honrado been careful, he could have noted not only the
will, therefore, should not be rejected where its attestation clause
anomaly as to the language of the will but also that there was something
serves the purpose of the law.
wrong in instituting to Marilyn Sy as sole heiress and giving nothing at all to
Agapito who was still alive.
FACTS:
1. Alipio Abada (Abada) died in May 1940. His widow, Paula
Toray (Toray) died in September 1943.
2. In 1968, Alipio C. Abaja (Alipio) filed with the then Court of First
Instance of Negros Occidental (now RTC-Kabankalan) a petition for the
probate of the last will and testament (will) of Abada wherein Abada named
as his testamentary heirs his natural children Eulogio Abaja (Eulogio) and
Rosario Cordova. Alipio is the son of Eulogio.
3. Nicanor Caponong (Caponong) opposed the petition on the
ground that Abada left no will when he died in 1940. Caponong further
alleged that the will, if Abada really executed it, should be disallowed for
failing to comply with the formal requisites. The intestate heirs of Abada also
opposed using the same grounds. (These oppositors are nephews, nieces,
and grandchildren of Abada and Toray.
4. On 13 September 1968, Alipio filed another petition before the
RTC-Kabankalan for the probate of the last will and testament of Toray.
Similarly, this was opposed by the previously mentioned oppositors. In an
Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the
will of Toray. Since the oppositors did not file any motion for
reconsideration, the order allowing the probate of Torays will became final
and executor
5. RTC-Kabankalan rendered a Resolution allowing the probate
of the will of Abada.
6. CA affirmed the resolution of the RTC.
7. SC denies the petition. The will is not defective and probate
proceedings must be allowed.
ISSUE AND RATIO:
1. What laws apply to the probate of the last will of Abada? Civil Code
of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure?
Abada executed his will on 4 June 1932. The laws in force at that time are
the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of
Civil Procedure which governed the execution of wills before the enactment
of the New Civil Code.
Under the applicable law, there was a requirement of attestation, which is
the main issue here. (Note: Pasted below are the other requisites in case
ma’am asks)
2. Whether the will of Abada requires acknowledgment before a notary
public? No.
The petitioners cited Art 806 of the Civil Code requiring the acknowledgment
of a notary public. However, this was erroneous as what they cited was
actually Art. 806 of the New Civil Code, not the old Civil Code which is the
applicable law here. Art 806 of the New Civil Code was taken from Art 685
of the Old Civil Code, however, the Code of Civil Procedure repealed Article
685 of the Old Civil Code. Under the Code of Civil Procedure, the
intervention of a notary is not necessary in the execution of any will.
Therefore, Abadas will does not require acknowledgment before a notary
public.
3. Whether the will must expressly state that it is written in a language
or dialect known to the testator? No.
There is no statutory requirement to state in the will itself that the
testator knew the language or dialect used in the will. This is a matter that a
party may establish by proof aliunde.
4. Main Issue: Whether the will of Abada has an attestation clause, and
if so, whether the attestation clause complies with the requirements of
the applicable laws? There is and it does.
A. As to allegation 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.
B. As to allegation that the attestation clause fails to state
expressly that the testator signed the will and its every page in the
presence of three witnesses and the lower court erred in applying the
substantial compliance rule
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, petitioners 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.
SC ruled to apply the liberal construction in the probate of Abadas
will. Abadas will clearly shows four signatures: that of Abada and of three
other persons. It is reasonable to conclude that there are three witnesses to
the will.
C. Court laid out some doctrines on the substantial compliance rule:
This Court has applied the rule on substantial compliance even
before the effectivity of the New Civil Code.
Dichoso de Ticson v. De Gorostiza - the Court recognized that there
are two divergent tendencies in the law on wills, one being based on strict
construction and the other on liberal construction. In Dichoso, the Court
noted that Abangan v. Abangan the basic case on the liberal construction,
is cited with approval in later decisions of the Court.
Adeva vda. De Leynez v. Leynez - It is, of course, not possible to lay
down a general rule, rigid and inflexible, which would be applicable to all
cases. More than anything else, the facts and circumstances of record are
to be considered in the application of any given rule… 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.
D. On the question of whether or not the number of witnesses can be
answered by the presentation of evidence aliunde? No it cannot.
However, the examination of the will itself in this case was sufficient to
determine the number hence the petition must still be denied.
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. 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.
---------
Under Section 618 of the Code of Civil Procedure, the requisites of a
will are the following:
(1) The will must be written in the language or dialect known by
the testator;
(2) The will must be signed by the testator, or by the testators
name written by some other person in his presence, and by
his express direction;
(3) The will must be attested and subscribed by three or more
credible witnesses in the presence of the testator and of
each other;
(4) The testator or the person requested by him to write his name
and the instrumental witnesses of the will must sign each
and every page of the will on the left margin;
(5) The pages of the will must be numbered correlatively in letters
placed on the upper part of each sheet;
(6) The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator
signed the will and every page of the will, or caused some
other person to write his name, under his express direction,
in the presence of three witnesses, and the witnesses
witnessed and signed the will and all pages of the will in the
presence of the testator and of each other.
 MATIAS v. SALUD
June 23, 1958 | REYES, JBL, J.| Wills > Forms > Notarial will; manner of
signing
PETITIONERS: AUREA MATIAS
RESPONDENTS: BASILIA SALUD
SUMMARY:
Gabina executed a will, leaving most of her properties to Matias. Salud
opposed, claiming, among others that the fingerprint that Gabina affixed on
the will was not a valid signature, as the identifying ridges were not visible.
SC held otherwise, and said that the fingerprint has been held to be a valid
signature.
DOCTRINE:
See Held #s 4-6. (Semi-verbatim from the case since it seemed important).
FACTS:
1. This is is an appeal from the Order of the CFI, Cavite denying probate of
the will of Gabina Raquel.
2. Gabina left no descendants/ascendants, and allegedly executed a
will prepared by Atty. Abunag in the presence of 3 witnesses (Gonzales,
Samala, and Samonte).
3. The will is composed of 3 pages. On the lower half of the second
page, preceding the attestation clause, appears the signature “Gabina
Raquel” which is admitted to be authentic. Alongside it is a smudge in
violet ink, with blurred ridge lines, claimed by the proponents to be a
thumbmark affixed by the testatrix. On the third page, at the end of the
attestation clause appear the signatures appearing on the left margin of
each page; and on the upper part of each page’s left margin appears a
violet ink smudge similar to the one previously described, accompanied
by the written words “Gabina Raquel” and underneath said name “by
Lourdes Samonte.”
4. In the will, Gabina allegedly bequeathed most of her properties, valued at
around P160k, to her niece, Matias, allegedly to compensate her for the
services she has rendered for over 30 years. She also left other properties in
favour of her other nieces and nephews, including respondent Salud.
5. The will, as well as the attestation were in Spanish. It was admitted,
however, that Gabina had testamentary capacity since she had mastered
Spanish, and she knew how to sign her name, despite being 90 years old
and suffering from herpes zoster.
6. Petitioner: Gabina instructed Atty. Abunag to draft the will (Jan. 27,
1950), and that she had summoned the witnesses to her home. The will
was read to them by Abunag, to which Gabina expressed conformity.
Gabina thumbmarked the foot of each page on the left margin, and
upon the insistence of Abunag, tried to sign her name, but was not able
to sign all the pages as her right shoulder was hurting. Abunag then
had Samonte sign “Gabina Raquel by Lourdes Samonte” next to the
thumbmarks.
7. Court took note that Gonzales (64 years old) did not testify as she was
suffering from high blood pressure (and that her memory was impaired), and
the excitement might kill her.
8. Salud, a niece of Gabina, opposed the probate of the will. CFI ruled for
Salud, and denied the probate on the ff. grounds: (1) attestation clause did
not state that Gabina and the witnesses signed each and every page of the
will; and while the left margins of each page exhibit the words “Gabina
Raquel by Lourdes Samonte,” the attestation does not express that Lourdes
was expressly directed to sign for Gabina; (2) Matias did not adequately
explain the nonproduction of witness Modesta Gonzalez, contrary to sec.
11, Rule 77 of the Rules of Court; (3) alleged signing and thumbmarking by
the deceased was not done in the presence of the witnesses, nor did the
latter sign in the presence of Gabina; (4) fraud and bad faith attended the
execution of the will.
9. CFI gave credence to testimony by expert witness Capt. Jose
Fernandez of the Phil. Constabulary, to wit: (1) the fingerprints were
impressed over the name of Gabina, and after the name was written,
contrary to what the witnesses asserted; (2) the words “Gabina Raquel by
Lourdes Samonte” were falsified and appear to have been written over a
previous tracing; (3) the person who wrote “Gabina Raquel by Lourdes
Samonte” is different from the one who wrote “Lourdes Samonte” as
signature of an attesting witness; (4) the signature “Lourdes Samonte” on
the left margin of page 3 of the testament was written only after that of
Felipa Samala when the testimony for the proponent was that they were
written in the reverse order; and (5) the pen used in signing “Gabina Raquel”
at the foot of the will had separated nibs, while the other signatures in the
document were written with a round point pen, again contrary to the
contention for the proponent that only one pen was used.
ISSUE: WN the will of the late Gabina Raquel may be subject to probate
proceedings: - YES
HELD:
1. (As to the testimony of Fernandez) The conclusions of Fernandez are not
clearly supported by the facts. As to the finding that the fingerprints were
affixed after the writing of the name, Fernandez failed to take into account
the time difference between the affixing of the fingerprints and the writing of
the names. Thus, the spreading out of the ink would only happen, according
to recognized authorities, when the ink is not dry. In this case, the ink has
already dried up when the names were affixed. The absence of spread
does not prove that the stamping ink lines were made after the writing was
done.
2. (As to alleged forgery of Samonte’s signature on the 3 rd page) the lighter
shade of the underlying characters strongly indicates that the overwriting
was made to correct ink failure or other imperfection in the first writing. The
expert’s opinion is also discredited by the fact that Samonte testified in
favor of the will, there would then be no sense in forging Samonte’s
signature. As to the different orders of their signatures on the different
pages, such does not signify that the execution of the testament was in any
way abnormal or fraudulent.
3. (As to the fact that Gonzales did not testify) While Gonzalez was not
placed on the stand, the proponent made no secret of her whereabouts, nor
of the reason why she was not asked to testify: the record shows that both
Dr. Bellaflor and Dr. Sanchez agreed that Gonzalez was suffering from
hypertension, that she was in the danger zone, and might collapse and die
as a consequence of a little excitement on her part. The trial court, having
expressly made of record that “it would not like to assume responsibility for
whatever might happen to this woman, could not logically hold proponent to
account for not risking her death.
the legal requisite that the will should be signed by the testator is
satisfied by a thumbprint or other mark affixed by him; and that where
such mark is affixed by the decedent, it is unnecessary to state in the
attestation clause that another person wrote the testator’s name at his
request. While in some of these cases the signing by mark was
described in the will or in the attestation clause, it does not appear that
the Court ever held that the absence of such description is a fatal
defect.
5. Respondent relies on the case of Garcia v. Lacuesta, wherein this
Court denied probate holding that a will signed with a cross written
after the testator’s name is not a sufficient signature. But in that case
no showing was made that the cross mark was the testator’s habitual
signature nor was any explanation given why he should use a cross
when he knew how to sign. In this case, however, it was shown that the
herpes zoster that afflicted the right arm and shoulder of testatrix made
writing a difficult and painful act, to the extent that, after writing one
signature on the second page, she dropped the pen because of an
attack of pain that lasted many minutes and evidently discourage
attempts to sign.
6. As to the clarity of the ridge impressions, it is so dependent on
aleatory circumstances (consistency of the ink, overinking, slipping of
the finger, etc.) as to require a dexterity that can be expected of very
few persons; and we do not believe testators should be required to
possess the skill of trained officers. It is to be conceded that where a
testator employs an unfamiliar way of signing, and both the attestation
clause and the will are silent on the matter, such silence is a factor to
be considered against the authenticity of the testament; but the failure
to describe the unusual signature by itself alone is not sufficient to
refuse probate when the evidence for the proponent fully satisfies the
court (as it does satisfy us in this case) that the will was executed and
witnessed as required by law.

4. (As to whether the fingerprint could count as a valid signature)

Respondent claims that the fingerprint cannot be valid since it does not
show distinct identifying ridge lines. This Court has repeatedly held that
 GARCIA v LACUESTA
NOVEMBER 29, 1951 |PARAS, C. J.| MANNER OF SIGNING
PETITIONERS: ROSARIO GARCIA
RESPONDENTS: JULIANA LACUESTA
SUMMARY: (note: super short lang ng case so redundant magbigay ng long
summary just read the digest) Atty. Javier signed the named on the
testator’s behalf on the will, and the testator signed using an “X” mark. The
will’s attestation clause is being questioned for being fatally defective. SC
held the attestation clause is fatally defective. (see doctrine)
DOCTRINE:
● 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, 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.
● A cross signature does not have the same effect as a thumb mark.
FACTS:
1. A will with an attestation clause[1] 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. The named of
the testator, Antero Mercado has an “X” mark written right after it.
2. CFI allowed the will
3. CA reversed. Stating attestation clause failed:
a. 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;
b. 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;
c. to certify that the three witnesses signed the will in all the
pages thereon in the presence of the testator and of each
other.
4. Petitioner argues that express direction not needed because cross
written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Said cross
signature being as good a a thumbmark which is held sufficient by
the SC in other cases.
ISSUE: W/N attestation clause was defective. YES
HELD:
1. 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.
a. 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.
b. The cross cannot and does not have the trustworthiness of
a thumbmark.
NOTE: other issues was not deliberated upon because the 1st issue already
makes the attestation clause defective
[1] 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.
 BARUT v. CABACUNGAN
February 15, 1912 | Moreland, J. | Wills > Forms > Notarial Will; manner of
signing | TAN
PETITIONERS: PEDRO BARUT
RESPONDENTS: FAUSTINO CABACUNGAN, ET AL
SUMMARY: Maria Salomon died. In her last will, she stated that being
unable to read or write, she asked Severo Agayan to sign her name on her
behalf. Some relatives of Maria Salomon argues that Severo Agayan should
have signed his own name as well. Court disagrees.
DOCTRINE: With respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his own or
not. The important thing is that it clearly appears that the name of the
testatrix was signed at her express direction in the presence of three
witnesses and that they attested and subscribed it in her presence and in
the presence of each other.
FACTS:
1. Maria Salomon died on the 7th day of November, 1908, in the
pueblo of Sinait, Ilocos Sur, leaving a last will and testament. In this
will, the testatrix revoked all former wills she made. She also stated
in said will that being unable to read or write, the same had been
read to her by Ciriaco Concepcion and Timotea Inoselda and that
she had instructed Severo Agayan to sign her name to it as
testatrix.
2. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M.
Jimenez are alleged to have been witnesses to the execution
thereof.
3. By the terms of said will Pedro Barut received the larger part of
decedent's property. During his application to probate the last will
and testament, a number of the relatives of the deceased opposed
on various grounds
a. That the handwriting of the person who allegedly
signed the name of the testatrix to the will for and
on her behalf looked more like the handwriting of
one of the other witnesses to the will than that of
the person whose handwriting it was alleged to be.
b. That the person who signed the name of the
testatrix failed to sign his own.
ISSUES/HELD:
1. W/N the dissimilarity in handwriting of the person who allegedly
signed the name of the testatrix for and on her behalf would
invalidate the will? NO
2. W/N the person who signs the name of the testatrix for and on her
behalf needs to sign his own name as well? NO.
RATIO:
1. ISSUE 1: We do not believe that the mere dissimilarity in writing
thus mentioned by the court is sufficient to overcome the
uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her
request and in her presence and in the presence of all the
witnesses to the will. It is immaterial who writes the name of the
testatrix provided it is written at her request and in her presence
and in the presence of all the witnesses to the execution of the will.
2. ISSUE 2: Section 618 of the Code of Civil Procedure reads as
follows:
a. No will, except as provided in the preceding
section, shall be valid to pass any estate, real or
personal, nor charge or effect the same, unless it be
in writing and signed by the testator, or by the
testator's name written by some other person in his
presence, and by his expenses direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of
each. . . .
3. From these provisions it is entirely clear that, with respect to the
validity of the will, it is unimportant whether the person who writes
the name of the testatrix signs his own or not. The important thing
is that it clearly appears that the name of the testatrix was signed
at her express direction in the presence of three witnesses and that
they attested and subscribed it in her presence and in the presence
 of each other. That is all the statute requires. It may be wise as a testator nor those interested in an inheritance, and, on the contrary,
practical matter that the one who signs the testator's name signs constitutes another guarantee of the truth and authenticity of the
also his own; but that it is not essential to the validity of the will. letters with which the name and surname of the testator of testatrix
Whether one person or another signed the name of the testatrix in are written, in accordance with his or her desire as expressed in
this case is absolutely unimportant so far as the validity of her will the will.
is concerned. 4. Even though the requisites referred to were not recognized in
4. Nor is such requirement found in any other branch of the law. jurisprudence and were unsupported by any legal doctrine
5. The cases cited by the opposition (Ex parte Santiago (4 Phil. Rep., whatever, yet, since it is in harmony with the juridical usages and
692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs. customs observed in this country, it ought, in the humble opinion of
Concepcion (5 Phil. Rep., 551)) are not in point because in those the writer, to be maintained for the benefit of the inhabitants of the
cases the person who signed the will for the testator wrote his own Islands and for the sake of a good administration of justice,
name to the will instead of writing that of the testator, so that the because it is not a question of a dangerous innovation or of one
testator's name nowhere appeared attached to the will as the one prejudicial to the public good, but a matter of the observance of a
who executed it. convenient, if not a necessary detail, introduced by the
Torres, J. Separate Opinion jurisprudence of the courts and which in the present case has filed
a vacancy left by the positive written law.
1. The undersigned agrees and admits that section 618 of the Code
of Civil Procedure does not expressly require that, when the
testator or testatrix is unable or does not know how to sign, the
person who, in the presence and under the express direction of
either of them, writes in the name of the said testator or testatrix
must also sign his own name thereto, it being sufficient for the
validity of the will that the said person so requested to sign the
testator or testatrix write the name of either in his own handwriting.
2. Torres, J. then cited several cases (Decision no. 4454 and Decision
no. 5149) which prescribe that the person should also sign his own
name.
3. If in various decisions it has been indicated that the person who,
under the express direction of the testator or testatrix, wrote the
latter's or the former's name and surname, should also sign the will
with his own name and surname, and since this suggestion is not
opposed or contrary to the law, the undersigned is of opinion that it
ought not to be modified or amended, but that, on the contrary, it
should be maintained as a requisite established by the
jurisprudence of this court, inasmuch as such a requisite is not
contrary to law, to public order, or to good custom, is in
consonance with a tradition of this country, does not prejudice the
 NERA v. RIMANDO
February 27, 1911 | Carson, J. | Wills > Forms > Notarial will; manner of
signing
PETITIONER: Beatriz Nera, et al.
RESPONDENT: Narcisa Rimando
SUMMARY: A subscribing witness to the will of Pedro Rimando was
alleged to be in a larger room and outside the smaller room where the
affixing of signatures to the will occurred. The will was assailed as invalid
because the testator and subscribing witnesses must sign the will in each
other’s presence. TC admitted the will to probate, and SC affirmed as the
evidence showed that at the time of subscription of signatures, the witness
was actually in the smaller room.
DOCTRINE: See Ratio 2.
FACTS:
1. The will of Pedro Rimando was executed in a small room where the
testator and subscribing witnesses attached their signatures. The question
raised by the evidence was whether one of the witnesses was present in
the room, or whether he was 8-10 feet away outside in a large room
connected to the small room by a curtained doorway and unable to see the
act of the attachment of signatures to the instrument.
RATIO:
1. The evidence shows that "at the moment when the witness Javellana
signed the document he was actually and physically present and in such
position with relation to Jaboneta that he could see everything that took
place by merely casting his eyes in the proper direction and without any
physical obstruction to prevent his doing so." If they have to change their
relative positions or existing mental and physical conditions, then they
would not be able to see each other sign at that moment, and the
instrument would not be valid as a will, as the lines of vision between the
testator and the other subscribing witnesses would be blocked "at the
moment of inscription of each signature."
2. The doctrine in Jaboneta v. Gustilo doctrine is that the signing of the will
in each other’s presence does not mean whether they were actually looking
at the signatures being affixed, but whether they could and were in a
position to look. 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.

2. TC admitted the will to probate, relying on the doctrine laid down in the
case of Jaboneta vs. Gustilo that the fact that one of the subscribing
witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, is not
sufficient in itself to invalidate the execution of the will

ISSUE: Whether the subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument—YES.

DISPOSITIVE: The decree entered by the court below admitting the

instrument propounded therein to probate as the last will and testament of
Pedro Rimando, deceased, is affirmed with costs of this instance against
the appellant.
 ICASIANO v. ICASIANO
June 30, 1964 | Reyes, J.B.L., J. | Wills > Forms > Notarial Will; Manner of
signing
PETITIONER: Celso Icasiano
RESPONDENTS: Natividad Icasiano and Enrique Icasiano
SUMMARY: A special proceeding was held to admit to probate the last will
and testament of Josefa Villacorte. The records reveal that the original of the
will does not contain the signature of one of the attesting witnesses, Atty.
Jose Natividad, on page 3 thereof. However, the duplicate copy of the will
bears the signatures of the testatrix and the three attending witnesses on
every page. Thus, the Court concluded that Atty. Natividad’s failure to affix
his signature is not sufficient to justify the denial of the probate.
DOCTRINE: 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.
FACTS:
1. The present case is an appeal from an order of the CFI of Manila
admitting to probate the alleged true last will and testament of Josefa
Villacorte, marked as Exhibit “A” with its duplicate copy marked as Exhibit
“A-1”, and appointing as executor Celso Icasiano.
2. The special proceeding was begun on October 2, 1958. On October 31,
1958, Natividad Icasiano, Josefa’s daughter, filed her opposition. Josefa’s
son, Enrique Icasiano, adopted Natividad’s opposition on February 18,
1959.
3. The records show that the original of the will, while signed at the end and
in every page, does not contain the signature of one of the attesting
witnesses, Atty. Jose Natividad, on page 3 thereof. However, 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.
4. Atty. Natividad testified on his failure to sign page 3 of the original will,
admitting that he may have lifted two pages instead of one when he signed
the same, but he also affirmed that the said page was signed in his
presence.
ISSUES/HELD:
WON the failure of one witness to affix his signature to one page of the will
is sufficient to justify the denial of the probate – NO
RATIO:
1. The impossibility of substitution of the assailed page is assured not only
by the fact that the testatrix and two other witnesses signed 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.
2, That the failure of Atty. Natividad to sign page 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 proves that no one was aware of the defect at the time.
3. This would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, if the purposes of the law
are otherwise satisfied. In Abangan v. Abangan, it was 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. The Court also ruled in Lopez v.
Liboro that despite the requirement for the correlative lettering of the pages
of a will, the failure to indicate the first page either by letters or numbers is
not a fatal defect.
4. Other matters:
a. The opinion of the expert for respondents, Felipe Logan, that the
signatures of the testatrix appearing in the duplicate of the will were not
written by the same hand which wrote the signatures in the original does not
convince the Court, not merely because it is directly contradicted by the
petitioners’ expert, Martin Ramos. Only three signatures of Josefa were
used as standards, and the comparison charts fail to show radical
differences that would prove forgery, taking into account the advanced age
of the testatrix, the evident variability of her signatures, and the effect of
writing fatigue.
b. 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.
DISPOSITION: The decision appealed from is affirmed.
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL
OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA v ROSAL
November 5, 1982 | GUTIERREZ, JR. J. | Notarial will; manner of signing
PETITIONER: APOLONIO TABOADA
RESPONDENTS: HON. AVELINO S. ROSAL, as Judge of Court of First
Instance of Southern Leyte, (Branch III, Maasin)
SUMMARY: The TC denied the probate of the will of Dorotea Perez for want
of formality in its execution. Its position is that it is not enough that only the
testatrix signs at the end but that the three subscribing witnesses must also
sign at the end, not on the left hand margin as in this case. The SC applied
the rule on liberal construction in this case. The requirements of attestation
and subscription under Art 805 of the CC were satisfied when 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. The attestation clause also failed to
state the number of pages used in writing the will, but it is nevertheless
discernible from the entire will that it is composed of two pages.
DOCTRINE: Perfection in the drafting of a will may be desirable, but
unsubstantial departure from the usual forms should be ignored, especially
where the authenticity of the will is not assailed. There is sufficient
compliance with the requirements of attestation and of subscription when
the instrumental witnesses sign at the left margin of the page of the will
which contains all the testamentary dispositions.
FACTS:
1. Taboada filed a petition for probate and attached the last will and
testament of Dorotea Perez which 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 and at the left hand
margin by the three instrumental witnesses, and the second page
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.
 2. Taboada submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.
3. TC: denied the probate of the will of Dorotea Perez for want of a
formality in its execution. The order was made through then
Presiding Judge Pamatian.
4. MR and motion for the appointment of special administrator: denied
by Judge Rosal who assumed the position of presiding judge.
5. According to the TC, Article 805 of the CC, for a notarial will to be
valid, it is not enough that only the testatrix signs at the "end" but
that the three subscribing witnesses must also sign at the same
place—at the end—not on the left hand margin. Taboada argues
that Article 805 does not make it a condition precedent or a matter
of absolute necessity for witnesses to sign specifically at the end of
the will after the signature of the testatrix.
ISSUES:
Whether or not Article 805 of the CC requires 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 for the
validity of a formal notarial will and thus, the probate of the will should
be denied — NO
signature of the testator exists as a fact. Subscription is the signing
of the witnesses' names upon the same paper
3. Perfection in the drafting of a will may be desirable, but
unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed. The law
is to be liberally construed, the underlying and fundamental
objective being 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.
4. In this case, 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
Vicente Timkang.
5. While the attestation clause failed to state the number of pages
used in writing the will, 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.

RULING:
Petition granted — respondent court is ordered to allow the probate of the
wig and to conduct further proceedings.

RATIO:
1. 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.
2. Attestation consists in witnessing the testator's execution of the will
in order to see and take note mentally that those things which the
statute requires for the execution of a will are done, and that the
 Javellana v. Ledesma
June 30, 1955 | Reyes, JBL, J. | Wills > Forms > Notarial will; acknowledged
PETITIONER-APPELLEE: Felicidad Javellana
OPPOSITOR-APPELLANT: Doña Matea Ledesma
SUMMARY: Matea Ledesma, the sister of the decedent Apolinaria, is
contesting the probate of Apolinaria's will saying (among other accusations)
that it wasn't executed in conformity with the law because the
acknowledgment was done separately from the execution of the will. She
also said that the witnesses to the execution of the will coerced her sister in
its execution. SC affirmed the CFI's decision to probate the will of
Apolinaria, stating that the acknowledgment of the will does not have to be
done at the same time that the will was executed.
DOCTRINE: The NEW Civil Code DOES NOT require that the signing of the
testator, witnesses, and notary should be accomplished in one single act. ||
According to Art. 806 of the new Civil Code, it reveals that while the testator
and the witnesses sign in the presence of each other, all that is required
after is that "every will must be acknowledged before a notary public by the
testator and the witnesses". It does not require that the testator and the
witnesses should acknowledge the testament on the same day or occasion
that it was executed.
FACTS:
1. Deceased Apolinaria Ledesma vda. de Javellana executed a testament on
March 30, 1950, and a codicil on May 29, 1952. These were witnessed by
the Tabianas and Yap.
2. CFI Iloilo admitted the wills to probate on July 23, 1953.
3. Appellant Matea Ledesma (sister of deceased Apolinaria) contested the
probate, stating that the exhibits (testament and codicil) were not executed
in conformity with the law.
● Matea also stated that the testatrix (Apolinaria) lacked the
testamentary capacity to produce the will and that the dispositions
made were done through undue influence.
● Matea argues that CFI erred in refusing to give credence to her
witnesses, Paderogao and Allado, who were the cook and the driver
of Apolinaria. They testified that they allegedly saw and heard that
Yap (one of the witnesses) forced and insisted that Apolinaria sign
the will at the attorney's office (Tabiana). They alleged that
Apolinaria signed the will in Yap's presence alone and returned it
saying that no one would questioned it because the property
involved was exclusively hers.
● Matea contends that the signing of the certificate of
acknowledgment was in Spanish, and that it was appended to the
codicil in Visayan. CONTEXT: The codicil was executed after the
enactment of the New Civil Code, and therefore, had to be
acknowledged before a notary public (Art. 806).
4. CFI Iloilo rejected the testimonies of Paderogao and Allado.
● Yap and the Tabianas asserted under oath that the testament was
executed by Apolinaria and the witnesses Yap and Tabiana in the
presence of each other at her house.
● It is highly unlikely that either Tabiana or Yap should've insisted that
Apolinaria, an infirm lady over 80 years old, should leave her own
house in order to execute her will, when they could've just went to
her.
● According to the Tabianas and Yap, after the codicil was signed by
Apolinaria and the witnesses at the hospital, this was signed and
sealed by notary public Gimotea on the same occasion.
5. Appellant Matea Ledesma appealed the CFI's decision to the Supreme
Court, since the value of the property was over P200,000. Hence this case.
ISSUES:
● WON the acknowledgment clause was signed and the notarial seal
affixed by tnhe notary public WITHOUT the presence of the testatrix
(Apolinaria) and the witnesses (Yap and the Tabianas)? NO, it was
signed and notarized in the presence of Apolinaria and her
witnesses.
● WON as a result, the codicil was thereby rendered invalid and
ineffective? NO, since it complied with the law.
RULING: CFI Ruling admitting the will to probate AFFIRMED. Costs against
Ledesma.
RATIO:
1. Whether or not the notary Gimotea signed the certification of
acknowledgment in the presence of Apolinaria and her witnesses, THIS
DOES NOT AFFECT THE VALIDITY OF THE CODICIL.
2. UNLIKE the Code of 1889 (Art. 699), the NEW Civil Code DOES NOT
require that the signing of the testator, witnesses, and notary should be
accomplished in one single act.
3. Art. 806 of the New Civil Code reveals that while the testator and the
witnesses sign in the presence of each other, all that is required after is that
"every will must be acknowledged before a notary public by the testator and
the witnesses" according to Art. 806.
● This means that the witnesses should avow to the notary/certifying
officer the authenticity of their signatures and the voluntariness of
their actions in executing the testamentary decision.
● In Art. 806 of the New Civil Code, it does not require that the
testator and the witnesses should acknowledge the testament on
the same day or occasion that it was executed.
4. IN THIS CASE: This was complied with. (See bulletpoint 3 under Fact 4)
The subsequent signing and sealing by the notary (Gimotea) of his
certification that the testament was duly acknowledged by the participants
is not part of the acknowledgment itself nor of the testamentary act.
5. So even if the codicil was executed separately from the notary's
acknowledgment, this doesn't violate the rule that the testament should've
been completed without interruption. It WAS completed when it was
executed. It doesn't say that the acknowledgment done by the notary
should've been done along with the execution of the testament.
Ortega v. Valmonte, supra
ORTEGA VS. VALMONTE
Dec. 16, 2005 | Panganiban | Wills > Forms > Notarial Wills > Acknowledged
PET: Leticia Valmonte Ortega
RESP: Josefina Valmonte
SUMMARY: Placido Valmonte married Josefina when he was 80, and she
was 28. Placido executed a notarial will which left Josefina all his property.
Leticia then assailed the probate of his will, saying that its execution was
attended by fraud, and alleging that Josefina conspired with the notary
public. Leticia also posited that it was dubious that Josefina, a young
woman, would marry someone as old as Placido. The Court denied Leticia’s
petition for review and upheld the probate of the will, as she failed to prove
her allegations.
DOCTRINE:
1) The fact that public policy favors the probate of a will does not
necessarily mean that every will presented for probate should be
allowed. The law lays down the procedures and requisites that must be
satisfied for the probate of a will.
2) Moreover, as correctly ruled by the appellate court, 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 x
x x be executed and acknowledged on the same occasion. More
important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the
presence of the testator and of one another. Furthermore, the testator
and the witnesses must acknowledge the will before a notary public. In
any event, we agree with the CA that 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 the instrumental
witnesses.
FACTS
1. Background: Placido married Josefina when he was 80,
and she was 28. Placido had come back from the US after
working there.
2. Placido executed a notarial last will and testament
written in English and consisting of two (2) pages, and dated
June 15, 1983 but acknowledged only on August 9, 1983. The
first page contains the entire testamentary dispositions and a
part of the attestation clause, and was signed at the end or
bottom of that page by the testator and on the left hand margin
by the three instrumental witnesses. The second page contains
the continuation of the attestation clause and the
acknowledgment, and was signed by the witnesses at the end
of the attestation clause and again on the left hand margin. It
provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO
VALMONTE IN THE NAME OF THE LORD AMEN:
I, PLACIDO VALMONTE, of legal age,
married to Josefina Cabansag Valmonte, and a
resident of 9200 Catmon Street, Makati, Metro
Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this
to be my last will and testament:
1. It is my will that I be buried in the Catholic
Cemetery, under the auspices of the Catholic
Church in accordance with the rites and said
Church and that a suitable monument to be erected
and provided my by executrix (wife) to perpetuate
my memory in the minds of my family and friends;
2. I give, devise and bequeath unto my
loving wife, JOSEFINA C. VALMONTE, one half (1/2)
portion of the follow-described properties, which
belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on
plan Psd-28575, LRC, (GLRO),
situated in Makati, Metro Manila,
described and covered by TCT No.
123468 of the Register of Deeds of
Pasig, Metro-Manila registered
jointly as co-owners with my
deceased sister (Ciriaca Valmonte),
having share and share alike;
b. 2-storey building standing on the
above-described property, made of
strong and mixed materials used as
my residence and my wife and
located at No. 9200 Catmon Street,
Makati, Metro Manila also covered
by Tax Declaration No. A-025-
00482, Makati, Metro-Manila, jointly
in the name of my deceased sister,
Ciriaca Valmonte and myself as co-
owners, share and share alike or
equal co-owners thereof;
3. All the rest, residue and remainder of
my real and personal properties, including my
savings account bank book in USA which is in the
possession of my nephew, and all others
whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C.
Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be
exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto
set my hand this 15thday of June 1983 in Quezon
City, Philippines.
3. Leticia, one of Placido’s children, opposed the probate of this
will, and the appointment of Josefina as executrix of such. Leticia
declared that Josefina should not inherit alone because aside from her
there are other children from the siblings of Placido who are just as
entitled to inherit from him. She attacked the mental capacity of the
 testator, declaring that at the time of the execution of the notarial will the
testator was already 83 years old and was no longer of sound mind.
4. The CA allowed the probate of Placido’s will; hence petitioner
appeals.
ISSUE: W/N the CA erred in admitting the will of Placido – NO
HELD:
1. The fact that public policy favors the probate of a will does not
mean that every will presented for probate should be allowed. The law
lays down the procedures and requisites that must be satisfied for the
probate of a will.
Article 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of affixing his
signature thereto.
2. NO FRAUD. Petitioner failed to substantiate her claim of a grand
conspiracy in the commission of a fraud. There was no showing that the
witnesses of the proponent stood to receive any benefit from the
allowance of the will. The testimonies of the three subscribing witnesses
and the notary are credible evidence of its due execution. Their
testimony favoring it and the finding that it was executed in accordance
with the formalities required by law should be affirmed, absent any
showing of ill motives.
Petition DENIED.
GUERRERO v. BIHIS
April 17, 2007 | CORONA, J.| Wills > Forms > Notarial will; acknowledged
PETITIONERS: BELLA A. GUERRERO
RESPONDENTS: RESURRECCION A. BIHIS
SUMMARY: Felisa Tamio de Buenaventura executed a will and
acknowledged the same in her residence in Quezon City before Atty. Directo
who was a commissioned notary public in Caloocan City. After the death of
Felisa, Petitioner Bella field for the probate of the will, however, the
respondent Resurreccion opposed saying that it did not comply with Art. 806
of the code since the Atty. Directo was bereft of jurisdiction (he can only
exercise his functions in Caloocan). The SC agreed with the respondent
holding that the will is void for not complying with acknowledgement
requirement since the notary public before whom it was acknowledged did
not have jurisdiction.
DOCTRINE:
- An acknowledgment is the act of one who has executed a deed in
going before some competent officer and declaring it to be his act or
deed.In the case of a notarial will, that competent officer is the notary
public.
- A notary public's commission is the grant of authority in his favor to
perform notarial acts. It is issued "within and for" a particular
territorial jurisdiction and the notary public's authority is co-extensive
with it.
- Outside the place of his commission, he is bereft of power to
perform any notarial act; he is not a notary public. Any notarial act
outside the limits of his jurisdiction has no force and effect.
FACTS:
1. On February 19, 1994, Felisa Tamio de Buenaventura, mother of
petitioner Bella A. Guerrero and respondent Resurreccion A. Bihis,
died
2. On May 24, 1994, Petitioner Bella filed a petition for the probate of
the last will and testament of the decedent which alleged that at the
time of the execution of the will, the testatrix was 79 years old, of
sound and disposing mind, not acting under duress, fraud or undue
influence and was capacitated to dispose of her estate by will.
 3. Respondent Resurreccion opposed her elder sister's petition on the
ground that the will was not executed and attested as required by
law
4. TC petitioner as special administratrix of the decedent's estate and
took her oath as temporary special administratrix and letters of
special administration were issued to her.
5. On January 17, 2000, after petitioner presented her evidence,
respondent filed a demurrer thereto alleging that petitioner's
evidence failed to establish that the decedent's will complied with
Articles 804 and 805 of the Civil Code.
6. The TC denied the probate of the will ruling that Article 806 of the
Civil Code was not complied with because the will was
"acknowledged" by the testatrix and the witnesses at the testatrix's,
residence before Atty. Macario O. Directo who was a commissioned
notary public for and in Caloocan City.
7. CA dismissed the appeal, thus this petition.
ISSUE: WN the will "acknowledged" by the testatrix and the instrumental
witnesses before a notary public acting outside the place of his commission
satisfy the requirement under Article 806 of the Civil Code? NO
RULE:
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.
HELD:
1. One of the formalities required by law in connection with the
execution of a notarial will is that it must be acknowledged before a
notary public by the testator and the witnesses, if not complied with
then the will is void and cannot be accepted for probate.
2. An acknowledgment is the act of one who has executed a deed in
going before some competent officer and declaring it to be his act or
deed.In the case of a notarial will, that competent officer is the notary
public.
a. The acknowledgment of a notarial will coerces the testator
and the instrumental witnesses to declare before an officer
of the law, the notary public, that they executed and
subscribed to the will as their own free act or deed.
b. Such declaration is under oath and under pain of perjury
c. It also provides a further degree of assurance that the
testator is of a certain mindset in making the testamentary
dispositions
3. Acknowledgment can only be made before a competent officer, that
is, a lawyer duly commissioned as a notary public.
a. SECTION 240. Territorial jurisdiction. - The jurisdiction of a
notary public in a province shall be co-extensive with the
province. The jurisdiction of a notary public in the City of
Manila shall be co-extensive with said city. No notary shall
possess authority to do any notarial act beyond the limits of
his jurisdiction.
b. A notary public's commission is the grant of authority in his
favor to perform notarial acts. It is issued "within and for" a
particular territorial jurisdiction and the notary public's
authority is co-extensive with it.
c. Outside the place of his commission, he is bereft of power
to perform any notarial act; he is not a notary public. Any
notarial act outside the limits of his jurisdiction has no force
and effect.
4. Since Atty. Directo was not a commissioned notary public for and in
Quezon City, he lacked the authority to take the acknowledgment of
the testatrix and the instrumental witnesses. The testatrix and her
witnesses could not have validly acknowledged the will before him.
Thus, Felisa Tamio de Buenaventura's last will and testament was, in
effect, not acknowledged as required by law.
5. The Court cannot turn a blind eye to Atty. Directo's participation in
the preparation, execution and unlawful "acknowledgment" of Felisa
Tamio de Buenaventura's will. Had he exercised his notarial
commission properly, the intent of the law to effectuate the
.
decedent's final statements Hence, Atty. Directo should show cause
why he should not be administratively sanctioned as a member of
the bar and as an officer of the court.
 Lee v. Tambago
Lee v. Tambago (2008)
SUMMARY: Petitioner challenges the will of his late father Vicente Sr. as
notarized by Atty. Tambago. He notes that the residence certificates of his
father and the witnesses had defects. There were also just 2 witnesses.
Court here held that the will is invalid because of the defects cited by
Petitioner. The law provides requirements to be followed to make a notarial
will valid. Atty. Tambago was suspended from practice and perpetually
disqualified from reappointment as notary public.
DOCTRINE: A notarial will must be subscribed at the end by the testator
himself with the attestation and subscription of 3 or more credible witnesses
in the presence of the testator and of one another.The Civil Code likewise
requires that a will must be acknowledged before a notary public by the
testator and the witnesses.
FACTS:
1. Petitioner Manuel Lee charged respondent Atty. Tambago with a
violation of the Notarial Law and Ethics for notarizing a will that is
alleged to be spurious in nature even containing forged signatures
of his deceased father Vicente Lee Sr, and 2 other witnesses.
2. The will contained the decedent’s wish to bequeathed his entire
estate to his wife Lim Hock Lee except for a parcel of land given to
devisee Vicente Jr and Elena, both half-siblings of petitioner Manuel.
3. Complainant cites 2 defects in the will:
a. The residence certificate of the testator in the
acknowledgement of the will was dated January 5, 1962 but
the will was purportedly executed and acknowledged on
June 30, 1965. The decedent’s signature in a Deed of
Donation was entirely different from his signature in this will.
b. There was also no notation of the residence certificates of
the 2 witnesses, Noynay and Grajo. Their signature were
allegedly forged and copied from their respective voter’s
affidavits.
4. The case was forwarded to the IBP Commissioner for investigation
who in turn found respondent guilty for violating the old notarial law
and subsequently suspending him for 3 months. The IBP Board of
Governors, adopted and approved the suspension from the practice
of law for 1 year and his notarial commission was revoked and
disqualified from reappointment as notary public for 2 years.
ISSUE: WoN the notarial will of Vicente Sr. is valid
RULING:
1. Yes. The law provides for certain formalities that must be followed
to consider a will valid to close the door on bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their
truth and authenticity
2. A notarial will must be subscribed at the end by the testator himself
with the attestation and subscription of 3 or more credible witnesses
in the presence of the testator and of one another. Here, there were
only 2 witnesses.
3. The Civil Code likewise requires that a will must be acknowledged
before a notary public by the testator and the witnesses. An
acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be
his act or deed. It involves an extra step undertaken whereby the
signatory actually declares to the notary public that the same is his
or her own free act and deed. Applied to this case, there was no
notation of the residence certificates of the notarial witnesses in the
acknowledgement as well as the discrepancy of the decedent’s
residence certificate.
4. Defects in the observance of the solemnities prescribed by the law
render the entire will invalid.
5. Respondent is suspended to practice law for a period of 1 year and
his notarial commission is revoked and is perpetually disqualified
from reappointment as a notary public.
 GABUCAN v. MANTA
(pls check if it’s the right case, because parang ang short? Sorry, I left
my syllabus :(( )
Jan 28, 1980 | AQUINO, J.| Wills > Forms > Notarial will; Acknowledged
PETITIONERS: JOSE ANTONIO GABUCAN
RESPONDENTS: HON. JUDGE MANTA, JOSEFA VDA. DE YSALINA &
NELDA ENCLONAR
SUMMARY: Probate Court dismissed probate proceeding on the ground
that there was no doc stamp affixed on the will. SC reversed the decision
and held that the probate court should have merely required that the
petitioner affix the doc stamp to the notarial acknowledgment of the will,
which is the taxable portion of the document.
.
DOCTRINE: See Held #s 3 and 4.
2. 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.
3. That procedure may be implied from the provision of section 238 that
the non-admissibility of the document, which does not bear the
requisite documentary stamp, subsists only "until the requisite stamp
or stamps shall have been affixed thereto and cancelled."
4. Thus, it was held that the documentary stamp may be affixed at the
time the taxable document is presented in evidence. If the promissory
note does not bear a documentary stamp, the court should have allowed
plaintiff's tender of a stamp to supply the deficiency. Note the holding in
Azarraga vs. Rodriguez that the lack of the documentary stamp on a
document does not invalidate such document.

FACTS:
1. This is about the dismissal of a petition for probate of a notarial will on
the ground that it does not bear a 35-centavo documentary stamp, which was
held by the respondent Judge to be inadmissible in evidence pursuant to
Sec. 238 of the Old Tax Code (Sec. 250 of 1977 Tax Code). The said
provision disqualifies documents not affixed with the documentary stamp as
evidence.
2. The probate court assumed that the notarial acknowledgment of the said
will is subject to the doc stamp. Respondent judge refused to reconsider,
despite manifestation that the petitioner has already attached the required
doc stamp to the original copy of the will.
3. Petitioner filed mandamus to compel judge to allow the former’s appeal.
Such petition was treated as a special civil action for certiorari under Rule 65
of the Rules of Court, and as an appeal in the interest of substantial and
speedy justice under RA 5440.

ISSUE: WN the dismissal was proper on the ground that a doc stamp was
not affixed: - NO
HELD:
1. We hold that the lower court manifestly erred in declaring that, because
no documentary stamp was affixed to the will, there was "no will and
testament to probate" and, consequently, the alleged "action must of
necessity be dismissed".
 CAGRO v. CAGRO
April 29, 1953 | Paras, C, J. | Wills > Forms > Notarial will; substantial
compliance
PETITIONER: Testate estate of the late Vicente Cargo, Jesusa Cagro
RESPONDENTS: Pelagio Cagro, et al.
SUMMARY: Vicente Cagro’s will was opposed on the ground that the
witnesses’s signatures did not appear after the attestation clause. The
Court held that the will was therefore fatally defective and that the
unsigned clause was not considered an act of the witnesses, adding that
the clause could be fraudulently added later.
DOCTRINE: 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 at the
bottom.
FACTS:
1. Vicente Cagro died in Laoangan, Pambujan, Samar, on February 14,
1949. In his one-page will, the signatures of the three witnesses are on the
left-hand margin and not at the bottom..
2. Vicente’s will was admitted to probate by CFI Samar, hence this
appeal. The oppositors’ objection is that the will is invalid since the
signatures of the instrumental witnesses do not appear after the attestation
clause.
ISSUE: Whether the will is fatally defective, because its attestation clause
is not signed by the witnesses—YES.
DISPOSITIVE: The appealed decision is reversed and the probate of the
will in question denied. So ordered with costs against the petitioner and
appellee.
RATIO:
1. An unsigned attestation clause is not considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof
negatives their participation. If the unsigned clause is admitted to probate
as sufficient, it would be easy to add such clause later without the testator
or witnesses.
2. The signatures on the left-hand margin do not count as substantial
compliance with the attestation clause but are a separate requirement.
DISSENTS:
BAUTISTA ANGELO, J.: The will in question has substantially complied
with the formalities of the law and, therefore, should be admitted to
probate.
1. The witnesses testified not only that the will was signed by the testator
in their presence and in the presence of each other but also that when they
did so, the attestation clause was already written thereon. Their testimony
has not been contradicted.
2. The oppositors’ objection is too technical. Liberal interpretation of wills
is applicable.
a. In Abangan vs. Abangan, the Court said that when the testamentary
dispositions are on only one sheet signed at the bottom, the requirement of
the signatures on the left hand margin was not necessary. The purpose of
the law to avoid the substitution of the sheets of the will has been
accomplished. Here, the purpose of the majority to evade latter addition of
the attestation clause is accomplished, as the witnesses’ uncontradicted
testimony shows such clause was already written in the will when the same
was signed.
b. When an interpretation of a will safeguards against bad faith and fraud
and allows the right to make a will, any other interpretation that demands
useless and frustrative requisites for the will must be disregarded.
3. The liberal trend of the New Civil Code (Articles 788 and 791) in the
matter of interpretation of wills applies. In case of doubt, the will is to be
given an interpretation that prevents intestacy.
TUASON, J.: The law on wills does not provide that the attesting witness
should sign the clause at the bottom. In the absence of such provision,
there is no reason why signatures on the margin are not good. A letter is
not any the less the wrtter's simply because it was signed, not at the
conventional place but on the side or on top.
 Gil v. Murciano
TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE
1
GIL, administratrix-appellee, vs. PILAR GIL VDA. DE MURCIANO
March 1, 1951| J. Jugo | Substantial compliance
SUMMARY: (Procedural) The case involves a 1951 Decision penned by
Justice Jugo, with a Dissenting Opinion by Justice Tuazon, then a 1953
Resolution of the 1951 case, wherein the Tuazon dissent was adopted as the
body and the 1951 Decision penned by Jugo became the dissent.
(Factual) The CFI Manila admitted to probate the alleged will & testament of
decedent Carlos Gil. This is opposed by Pilar Gil vda de Marciano, who
argued that the will is void since the attestation clause did not state that the
alleged testator signed the will. The attestation clause only declares that it
was signed by the witnesses. In the 1951 case, the SC in a 6-5 vote ruled
that this defect rendered the will void and upheld a strict compliance with the
black letter law. Justice Tuazon dissented. On reconsideration in 1953, the
SC in a 6-5 vote ruled that the will, although not strictly in conformity with the
requirements of the law, was still valid as it is substantial compliance.
DOCTRINE: There is no reason why wills should not be executed by
complying substantially with the clear requisites of the law, leaving it to the
courts to supply essential elements. The right to dispose of property by will is
not natural but statutory, and statutory requirements should be satisfied.
FACTS:
1. (See SUMMARY for relevant facts.; The contents of the will and a
substantial part of the case are in Spanish)
2. The original of the will was filed in the CFI Manila in 1943; in 1945,
before the will came up for probate, it was destroyed by fire or
looters; that in the probate proceeding after liberation, the parties
submitted an agreed statement of facts in which the will was
reproduced as copied in the record on appeal in another case
docketed in this court on appeal and decided on April 30, 1948. The
controversy there concerned the right of a nephew of the testator to
impugn the will, it being alleged that he was not a legal heir and had
no interest in the probate.
3. Attestation Clause (English Google translate): WE the undersigned,
we certify: that the preceding testament written in the Castilian
language that canoe the testator, composed of two pages useful with
the clause of witnessing paginated correlatively in letters and
1
READ IN THE ORIGINAL IF YOU CAN!!!!
numbers in the upper part of the box , As well as all the leaves of the
same, in our presence and that each one of us have witnessed and
signed this document and all the leaves of the same in the presence
2
of the testator and in the one of each of us
4. Counsel for vda de Gil contends that the phrase "han sido firmadas
por el testador" (―have been signed by the testator‖) or equivalent
expression between the words "del mismo" (―of the same‖) and the
words "en nuestra presencia" (―in our presence‖) should be inserted
if the attestation clause is to be complete and have sense. With this
insertion the attestation clause would read ". . ., asi como todas las
hojas del mismo han sido firmadas por el testador en nuestra
presencia . . ." (―As all the leaves of it have been signed by the
testator in our presence‖)
ISSUE: W/N the absence of a statement in the attestation clause that the will
was signed by the testator would render the will void → YES (1951); NO
(1953)
HELD OF THE 1951 DECISION/1953 DISSENT:
1. The attestation clause above quoted does not state that the alleged
testor signed the will. It declares only that it was signed by the
witnesses. This is a fatal defect, for the precise purpose of the
attestation clause is to certify that the testator signed the will, this
being the most essential element of the clause. Without it there is no
attestation at all. It is said that the court may correct a mere clerical
error. This is too much of a clerical error for it effects the very
essence of the clause. Alleged errors may be overlooked or correct
only in matters of form which do not affect the substance of the
statement.
2. It is claimed that the correction may be made by inference. If we cure
a deficiency by means of inferences, when are we going to stop
2
NOSOTROS los que suscribimos, todos mayores de edad,
certificamos: que el testamento que precede escrito en la lengua
castellana que canoce la testador, compuesto de dos paginas utiles con
la clausula de atestigamiento paginadas correlativamente en letras y
numeros en la parte superior de la casilla, asi como todas las hojas del
mismo, en nuestra presencia y que cada uno de nosotros hemos
atestiguado y firmado dicho documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de nosotros.
 making inferences to supply fatal deficiencies in wills? Where are we
to draw the line? Following that procedure we would be making
interpolations by inferences, implication, and even by
internalcircumtantial evidence. This would be done in the face of the
clear, uniquivocal, language of the statute as to how the attestation
clause should be made. It is to be supposed that the drafter of the
alleged will read the clear words of the statute when he prepared it.
For the court to supply alleged deficiencies would be against the
evident policy of the law.
3. It is contended that the deficiency in the attestation clause is cured
by the last paragraph of the body of the alleged will, which we have
quoted above. At first glance, it is queer that the alleged testator
should have made an attestation clause, which is the function of the
witness. But the important point is that he attests or certifies his own
signature, or, to be accurate, his signature certifies itself. It is evident
that one cannot certify his own signature, for it does not increase the
evidence of its authenticity. It would be like lifting one's self by his
own bootstraps. Consequently, the last paragraph of the will cannot
cure in any way the fatal defect of the attestation clause of the
witnesses. Adding zero to an insufficient amount does not make it
sufficient.
HELD OF THE 1953 RESOLUTION/1951 DISSENT:
1. There is insinuation that the appellee in agreeing that the will read as
it was "reproduced in the record on Appeal" above mentioned is
bound by the agreement. This is not an absolute rule. The binding
effect of a stipulation on the parties does not go to the extent of
barring them or either of them from impeaching it on the score of
clerical error or clear mistake.
2. The problem posed by the omission in question is governed, not by
the law of wills which requires certain formalities to be observed in
the execution, but by the rules of construction applicable to statues
and documents in general. And this rule would obtain even if the
omission had occurred in the original document and not in the copy
alone. In either case, the court may and should correct the error by
supplying the omitted word or words.
3. Referring to "the lack of attestation clause required by law," this
court, in a unanimous decision in banc, through Mr. Justice Villamor
said (syllabus): "When the attestation clause is signed by the
witnesses to the instruments besides the testator, such attestation
clause is valid and constitutes a substantial compliance with the
provisions of section 1 of Act No. 2645, even though the facts recited
in said attestation appear to have been make by the testator
himself."
4. If the witnesses here purposely omitted or forgot that the testator
signed the will in their presence, the testator said that he did and the
witnesses by their signatures in the will itself said it was so. No
extraneous proof was necessary and none was introduced or taken
into consideration.
5. To regard the letter rather than the spirit of the will and of the law
behind it was the thing that led to unfortunate consequences. It was
the realization of the injustice of the old way that impelled this court,
so we believe, to forsake the antiquated, outworn worship of form in
preference to substance.
6. There is no reason why wills should not be executed by complying
substantially with the clear requisites of the law, leaving it to the
courts to supply essential elements. The right to dispose of property
by will is not natural but statutory, and statutory requirements should
be satisfied.
7. If the sole purpose of the statute is to make it certain that the testator
has definite and complete intention to pass his property, and to
prevent, as far as possible, any chance of substituting one
instrument for another, What better guaranty of the genuineness of
the will can there be than a certification by the testator himself in the
body of the will so long as the testator's signature is duly
authenticated? Witnesses may sabotage the will by muddling it or
attestation clause.
 Caneda v. CA
FACTS:
1. 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 before 3 witnesses. He was assisted by his
lawyer, Atty. Emilio Lumontad.
2. In the will, it was declared that the testator was leaving by way of
legacies and devises his real and personal properties to several people
all of whom do not appear to be related to the testator.
3. 4 months later, Mateo Caballero himself filed a case seeking the probate
of his last will and testament, but numerous postponements pushed back
the initial hearing of the probate court regarding the will.
4. On May 29, 1980, the testator passed away before his petition could be
heard by the probate court. Thereafter one legatee, Benoni Cabrera,
sought appointment as special administrator of the testator’s estate.
5. Petitioners, claiming to be nephews and nieces of the testator, instituted
a second petition for intestate proceedings. They also opposed the
probate of the will and the appointment of an administrator for his estate.
6. Benoni Cabrera died and was replaced by William Cabrera as special
administrator and gave an order that the testate proceedings for the
probate of the will had to be heard and resolved first.
7. In the course of the proceedings, petitioners opposed to the allowance of
the testator’s will on the ground that on the alleged date of its execution,
the testator was already in poor state of health such that he could not
have possibly executed the same. Also the genuineness of the signature
of the testator is in doubt.
8. On the other hand, one attesting witnesse and the notary public testified
that the testator executed the will in their presence while he was of
sound and disposing mind and that the testator was in good health and
was not unduly influenced in any way in the execution of his will.
9. Probate court then rendered a decision declaring the will in question as
the last will and testament of the late Mateo Caballero. CA affirmed the
probate court’s decision stating that it substantially complies with Article
805. Hence this appeal.
ISSUE:
W/N the attestation clause in the will of the testator is fatally defective or can
be cured under the art. 809.
HELD:
1. No. It does not comply with the provisions of the law. Ordinary or
attested wills are governed by Arts. 804 to 809. The will must be
acknowledged before a notary public by the testator and the attesting
witnesses. The attestation clause need not be written in a language
known to the testator or even the attesting witnesses.
2. 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.
3. The attestation clause, therefore, provides strong legal guaranties for the
due execution of a will and to insure the authenticity thereof.
4. It is contended by petitioners that the attestation clause in the will failed
to specifically state the fact that the attesting witnesses witnessed 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. And the Court agrees.
5. The attestation clause 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.
6. The phrase, ―and he has signed the same and every page thereof, on
the space 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.‖
7. Clearly lacking is the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of one another.
That the absence of the 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 probated.
8. Also, Art. 809 does not apply to the present case because
the attestation clausetotally 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. The defect in this case is not only with respect to the
form or the language of the attestation clause. The defects must be
remedied by intrinsic evidence supplied by the will itself which is clearly
lacking in this case.
9. Therefore, the probate of the will is set aside and the case for the
intestate proceedings shall be revived.
10. Article 809 cannot be used to cure the defects of the will when it does not
pertain to the form or language of the will. This is because there is not
substantial compliance with Article 805.
 AZUELA v CA
April 12, 2006 |G.R. No. 122880| Notarial Will: Substantial Compliance
SUMMARY: Felix Azuela sought to admit to probate the will of Eugenia
Igsolo. The three witnesses affixed their signatures on the left-hand margin of
the pages, but not at the bottom of the attestation clause. It was opposed by
the lawyer of the 12 legitimate heirs of the decedent, claiming that the will is
forgery and that it was not executed and attested to in accordance to law.
RTC admitted it to probate. CA reversed. The SC ruled that there was no
substantial compliance, the errors were fatal to the will.
FACTS:
● Felix Azuela sought to admit to probate the 2 page notarial will of
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is
the son of the cousin of the decedent. She died in 1982 at the age of 80.
The three witnesses to the will affixed their signatures on the left-hand
margin of both pages, but not at the bottom of the attestation clause.
● Oppositor to the probate of the will: Geralda Castillo – lawyer of 12
legitimate children of decedent. Supposedly, the decedent was widow of
Bonifacio Igsolo and the mother of a legitimate daughter who
predeceased her by 3 months. Her objections:
1. 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 petitioner’s right to
occupy the properties of the decedent.
2. The will was not executed and attested to in accordance with law.
She pointed out that decedent’s 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.
● RTC admitted the will to probate, favoring the testimonies of three
witnesses and calling 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.‖
● CA reversed RTC
Issue: Whether the WILL is valid – NO
Petitioner: 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."
The attestation clause does not contain number of pages
● As admitted by petitioner himself, the attestation clause fails to state
the number of pages of the will.
● CA explained the two cases used by petitioner in arguing for validity
of the will Singson v Florentino and Taboada v Rosal. Although they
did not contain the number of pages in the attestation clause, they
were found in the last part of the body of the will, and
acknowledgment part, respectively.
● Article 809 of present Civil Code provides for interpretation of the
attestation clause. Petitioner argues in his favor that the Code
Commission opted for liberalization. Court, however, said that
liberalization is "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.‖
● CA also cited JBL Reyes’ comment on said Article 809: ―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.‖
● 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. 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.
● Compliance with these requirements affords the public a high degree GARCIA v. VASQUEZ
of comfort that the testator himself or herself had decided to convey March 28, 1969 | Fernando, J. | Wills > Forms > Notarial will; disabled
property post mortem in the manner established in the will. The testators
transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the
PETITIONERS: REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
testator’s incontestable desires, and not for the indulgent admission
PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME ROSARIO
of wills to probate.
RESPONDENTS: HON. CONRADO M. VASQUEZ, as Judge of the Court of
First Instance of Manila, Branch and CONSUELO GONZALES VDA. DE
PRECILLA
SUMMARY: Gliceria’s Spanish will was assailed by the oppositors as
invalid, since Gliceria had such poor eyesight that she could not read its
provisions. The SC said the will was invalid for noncompliance with Art.
808 of the New Civil Code.
DOCTRINE: See Ratio 1.

FACTS:
1. Gliceria del Rosario executed 2 wills. One was a twelve-page will in
June 1956, written in Spanish, a language she knew and spoke. The other
one-page will was executed in December 1960, written in Tagalog. The
witnesses to the 1960 will declared that the will was first read 'silently' by
the testatrix before signing it.
2. Gliceria’s niece Consuelo Gonzales petitioned CFI Manila for probate of
Gliceria’s 1960 will and her appointment as special administratrix of the
latter’s P100,000 estate. The probate court admitted the will.
3. There were five groups of oppositors all claiming to be heirs of Doña
Gliceria as relatives within the fifth civil degree. 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 the will is valid—NO.

RATIO:
1. 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 opportunity to object if
the provisions therein are not in accordance with his wishes.

2. The testimony of her opthalmologist established that notwithstanding
an operation to remove the cataract in her left eye and being fitted with
glasses, this did not improve her vision. Her vision remained mainly for
viewing distant objects (20/60 right eye, 20/300 left eye) and not for reading.
There was no evidence that her vision improved at the time of the execution
of the second will. Hence, she was incapable of reading her own will.
Alvarado v. Gaviola
FACTS:
1. On 5 November 1977, 79-year old Brigido Alvarado executed a
notarial will entitled “Huling Habilin” wherein he disinherited an
illegitimate son, petitioner CesarAlvarado, and expressly revoked a
previously executed holographic will at the time awaiting probate
before the RTC of Laguna.
2. According to Bayani Ma. Rino, private respondent, he was present
when the said notarial will was executed, together with
three instrumental witnesses and the notary public, where the
testator did not read the will himself, suffering as he did from
glaucoma.
3. Rino, a lawyer, drafted the eight-page document and read the same
aloud before the testator, the three instrumental witnesses and the
notary public, the latter four following the reading with their own
respective copies previously furnished them.
4. Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng 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. Said codicil was likewise not read by
Brigido Alvarado and was read in the same manner as with the
previously executed will.
5. When the notarial will was submitted to the court for
probate, Cesar Alvarado filed his opposition as he said that the will
was not executed and attested; that the testator was insane or
mentally incapacitated due to senility and old age; that the will was
executed under duress, influence of fear or threats; that it was
procured by undue pressure on the part of the beneficiary; and that
the signature of the testator was procured by fraud or trick.
ISSUE:
W/N notarial will of Brigido Alvarado should be admitted to probate despite
allegations of defects in the execution and attestation thereof as testator
was allegedly blind at the time of execution and the double-reading
requirement under Art. 808 of the NCC was not complied with.
HELD:
1. YES. The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the
substantial requirements of 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.
2. Cesar Alvardo was correct in asserting that his father was not totally
blind (of counting fingers at 3 feet) when the will and codicil were
executed, but he can be so considered for purposes of Art. 808.
That Art. 808 was not followed strictly is beyond cavil. However, in
the case at bar, there was substantial compliance where the
purpose of the law has been satisfied: that of making the provisions
known to the testator who is blind or incapable of reading the will
himself (as when he is illiterate) and enabling him to object if they do
not accord with his wishes.
3. Rino 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 acknowledgment take place
4. There is no evidence that the contents of the will and the codicil
were not sufficiently made known and communicated to the
testator.With four persons, mostly known to the testator, 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 were the terms actually appearing on the typewritten
documents.
5. The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will to 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
6. Although there should be strict compliance with the
substantial requirements of 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.
GONZALES v CA
May 25, 1979 | GUERRERO, J.| WITNESSES
PETITIONERS: RIZALINA GABRIEL GONZALES
RESPONDENTS: CA and private-respondents LUTGARDA SANTIAGO
SUMMARY: A will was executed 2 months before the death of the decedent.
The will provided for various amounts to be given out to family of the
decedent who was a widow. Private respondent Lutgarda was named as
universal heir and executor was bequeathed all properties and estate, real or
personal already acquired, or to be acquired, in her testatrix name, after
satisfying the expenses, debts and legacies. Petitioner who is the niece of
the deceased averred that the will was defective because the witnesses who
subscribed by it were not proven to be credible and competent. SC rules in
favor of Lutgarda Santiago stating that as long a witness has all the the
qualifications mentioned in article 820 of the CC and has none of the
disqualifications mentioned in article 821 of the CC then said witness can be
considered as competent and credible.
DOCTRINE:
Credible witnesses as used in the statute relating to wills, means competent
witnesses — that is, such persons as are not legally disqualified from
testifying in courts of justice, by reason of mental incapacity, interest, or the
commission of crimes, or other cause excluding them from testifying
generally, or rendering them incompetent in respect of the particular subject
matter or in the particular suit. Hill vs. Chicago Title & Trust co
instrumental witnesses in Order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be credible, that
is worthy of belief and entitled to credence, it is not mandatory that evidence
be first established on record that the witnesses have a good standing in the
community or that they are honest and upright or reputed to be trustworthy
and reliable, for a person is presumed to be such unless the contrary is
established otherwise.
FACTS:
1. June 24, 1961, Lutgarda Santiago filed for the probate of a will
alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal beneficiary and
executrix.
2. Isabel Andres Gabriel died as a widow on June 7, 1961 at the age of
85
3. Private respondent Lutgarda Santiago and petitioner Rizalina Gabriel
Gonzales are nieces of the deceased Lutgarda along with her family
lived with the deceased at the latter's residence prior and up to the
time of her death.
4. The will which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2)
months prior to the death of Isabel Gabriel.
a. The will itself provided certain amounts be given to her
siblings and other nephews and nieces.
b. With regard to Lutgarda Santiago, who was described in the
will by the testatrix as "aking mahal na pamangkin na aking
pinalaki, inalagaan at minahal na katulad ng isang tunay na
anak" and named as universal heir and executor, were
bequeathed all properties and estate, real or personal
already acquired, or to be acquired, in her testatrix name,
after satisfying the expenses, debts and legacies as
aforementioned.
5. The petition was opposed by Rizalina Gabriel Gonzales, herein
petitioner, assailing the document purporting to be the will of the
deceased on the following grounds:
a. that the same is not genuine; and in the alternative
b. that the same was not executed and attested as required by
law;
c. that, at the time of the alleged execution of the purported wilt
the decedent lacked testamentary capacity due to old age
and sickness; and in the second alternative
d. That the purported WW was procured through undue and
improper pressure and influence on the part of the principal
beneficiary, and/or of some other person for her benefit.
6. Lower Court: Gonzales won
7. CA: reversed and declared the will to be executed by the deceased
and found no defect in the will
8. Petitioner argues:
a. the requirement in Article 806,CC, that the witnesses must
be credible is an absolute requirement which must be
complied with before an alleged last will and testament may
be admitted to probate and that to be a credible witness,
there must be evidence on record that the witness has a
good standing in his community, or that he is honest and
upright, or reputed to be trustworthy and reliable.
b. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and
still not be credible as required by Article 805 of the same
Code.
i. It is further urged that the term "credible" as used in
the Civil Code should receive the same settled and
well- known meaning it has under the Naturalization
Law, the latter being a kindred legislation with the
Civil Code provisions on wigs with respect to the
qualifications of witnesses.
ISSUE: w/n the will was executed and attested as required by law when
there was absolutely no proof that the three instrumental witnesses were
credible witnesses. -YES
HELD:
1. Art. 820 of the CC provides for the witnesses’ qualification[1]
a. Under the law, there is no mandatory requirement that the
witness testify initially or at any time during the trial as to his
good standing in the community, his reputation for
trustworthiness and reliableness, his honesty and
uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the qualifications
enumerated in Article 820 of the Civil Code are complied
with, such that the soundness of his mind can be shown by
or deduced from his answers to the questions propounded to
him, that his age (18 years or more) is shown from his
appearance, testimony , or competently proved otherwise,
as well as the fact that he is not blind, deaf or dumb and that
he is able to read and write to the satisfaction of the Court,
and that he has none of the disqualifications under Article
821 of the Civil Code.
b. Attributes of trustworthiness are presumed of the witness
unless the contrary is proved otherwise by the opposing
party.
2. Credible as used in the CC need not have the same meaning it has
under the Naturalization Law where the law is mandatory that the
petition for naturalization must be supported by two character
witnesses who must prove their good standing in the community,
 reputation for trustworthiness and reliableness, their honesty and
uprightness. In a petition for naturalization the witness is a character
witness.
a. In probate proceedings, the instrumental witnesses are not
character witnesses for they merely attest the execution of a
will or testament and affirm the formalities attendant to said
execution.
3. In the case at bar, the finding that each and everyone of the three
instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and
Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of
Appeals, which findings of fact this Tribunal is bound to accept and
rely upon. Moreover, petitioner has not pointed to any disqualification
of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or
dumb, or cannot read or write.
4. Other Issues delved in but not as important to the lesson:
5. Petitioner cites American authorities that competency and credibility
of a witness are not synonymous terms and one may be a competent
witness and yet not a credible one.
a. It is true that Celso Gimpaya was the driver of the testatrix
and his wife Maria Gimpaya, merely a housekeeper, and that
Matilde Orobia was a piano teacher to a grandchild of the
testatrix But the relation of employer and employee much
less the humble or financial position of a person do not
disqualify him to be a competent testamentary witness.
6. Petitioners also controvert the fact that the certain information on
witnesses was not prepared thoroughly.
a. Findings of fact binding unless it falls under exceptions
provided for law where in SC may review facts
b. the alleged unnaturalness characterizing the trip of the
testatrix to the office of Atty. Paraiso and bringing all the
witnesses without previous appointment for the preparation
and execution of the win and that it was coincidental that
Atty. Paraiso was available at the moment impugns the
finding of the Court of Appeals that although Atty. Paraiso
admitted the visit of Isabel Gabriel and of her companions to
his office on April 15, 1961 was unexpected as there was no
prior appointment with him, but he explained that he was
available for any business transaction on that day and that
Isabel Gabriel had earlier requested him to help her prepare
her will.
7. As to the appellate court's finding that Atty. Paraiso was not
previously furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the document
Exhibit ' L which the petitioner assails as contradictory and
irreconcilable with the statement of the Court that Atty. Paraiso was
handed a list (containing the names of the witnesses and their
respective residence certificates) immediately upon their arrival in
the law office by Isabel Gabriel and this was corroborated by Atty.
Paraiso himself who testified that it was only on said occasion that
he received such list from Isabel Gabriel, We cannot agree with
petitioner's contention.
a. whether Atty. Paraiso was previously furnished with the
names and residence certificates of the witnesses on a prior
occasion or on the very occasion and date in April 15, 1961
when the will was executed, is of no moment for such data
appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses
on April 15, 1961 following the attestation clause duly
executed and signed on the same occasion –
PRESUMPTION OF REGULARITY PREVAILS.
[1] Art. 820. Any person of sound mind and of the age of eighteen years or
more, and not blind, deaf or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in article 806 of this Code. "Art.
821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or
false testimony.
 CRUZ v. VILLASOR
November 26, 1973 | Esguerra, J. | Wills > Forms > Notarial Will; Witnesses |
TAN
PETITIONERS: AGAPITA N. CRUZ
RESPONDENTS: HON. JUDGE GUILLERMO P. VILLASOR, Presiding
Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY
SUMMARY: Valente C. Cruz died. His surviving spouse opposed the
probate of the will because of the three instrumental witnesses, one of them
was the notary public himself. SC agrees as notary public cannot be a
witness.
DOCTRINE: 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.
FACTS:
1. Valente C. Cruz died.
2. The three instrumental witnesses to his will were Deogracias T.
Jamaloas Jr., Dr. Francisco Pañares 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.
3. As the third witness is the notary public himself, Agapita N. Cruz
(Surviving spouse of Valente) argues that the result is that only two
witnesses appeared before the notary public to acknowledge the
will.
4. 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.
ISSUES/HELD: W/N the will is valid considering that one of the three
witnesses was the notary public? NO.
RATIO:
1. 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.
2. To acknowledge before means to avow; to own as genuine, to
assent, to admit; and "before" means in front or preceding in space
or ahead of. 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.
3. The function of a notary public is, among others, to guard against
any illegal or immoral arrangement. 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
4. 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. There are others holding that his
signing merely as notary in a will nonetheless makes him a witness
thereon. 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.
5. 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.