CRUZ v.
VILLASOR would be interested in sustaining the validity of the will as it
FACTS:
1. The CFI of Cebu allowed the probate of the last will and
testament of the late Valenti Cruz. However, the petitioner, the
wife of the testator, opposed the allowance of the will alleging that
it was executed through fraud, deceit, misrepresentation, and
undue influence. He further alleged that the instrument was
executed without the testator having been informed of its
contents and finally, that it was not executed in accordance with
law.
2. One of the witnesses, Angel Tevel Jr. was also the notary before
whom the will was acknowledged. Despite the objection, the
lower court admitted the will to probate on the ground that there
is substantial compliance with the legal requirements of having at
least 3 witnesses even if the notary public was one of them.
ISSUE: WON the will is valid in accordance with Art. 805 and 806
of the NCC
HELD: NO. The will is not valid. The notary public cannot be
considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the said will. An
acknowledging officer cannot serve as witness at the same time.
To acknowledge before means to avow, or to own as genuine, to
assent, admit, and 'before' means in front of or preceding in space
or ahead of. The notary cannot split his personality into two so
that one will appear before the other to acknowledge his
participation in the making of the will. To permit such situation
would be absurd.
Finally, the function of a notary among others is to guard against
any illegal or immoral arrangements, a function defeated if he
were to be one of the attesting or instrumental witnesses. He
directly involves himself and the validity of his own act. He would
be in an inconsistent position, thwarting the very purpose of the
acknowledgment, which is to minimize fraud.
JAVELLANA v. LEDESMA
Doctrine: The subsequent signing and sealing by the notary
of his certification that the testament was duly acknowledged
by the participants therein is no part of the acknowledgment
itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her
witnesses cannot be said to violate the rule that testaments
should be completed without interruption, or, as the Roman
maxim puts it, "uno eodem die ac tempore in eodem loco".
FACTS:
 CFI of Iloilo admitted to probate documents in the Visayan
dialect, as the testament and codicil duly executed by the
deceased Da. Apolinaria Ledesma Vda. de Javellana, on
March 30, 1950, and May 29, 1952, respectively, with
Ramon Tabiana, Gloria Montinola de Tabiana and Vicente
Yap as witnesses.
 The contestant, Da. Matea Ledesma, sister and nearest
surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed
in conformity with law.
 The appeal was made directly to this Court because the
value of the properties involved exceeded 200k.
 Originally the opposition to the probate also charged that
the testatrix lacked testamentary capacity and that the
dispositions were procured through undue influence.
These grounds were abandoned at the hearing in the CFI.
 The contestant argues that the CFI erred in refusing
credence to her witnesses Maria Paderogao and Vidal
 Allado, cook and driver, respectively, of the deceased
Apolinaria Ledesma.
 Both testified that on March 30, 1950, they saw and
heard Vicente Yap (one of the witnesses to the will)
inform the deceased that he had brought the
"testamento" and urge her to go to attorney Tabiana's
office to sign it
 that Apolinaria manifested that she could not go,
because she was not feeling well
 that upon Yap's insistence that the will had to be
signed in the attorney's office and not elsewhere, the
deceased took the paper and signed it in the presence
of Yap alone, and returned it with the statement that
no one would question it because the property
involved was exclusively hers.
ISSUE: WON the fact of the notary signing the certification of
acknowledgment in the presence of the testatrix and the
witnesses, affects the validity of the codicil.
HELD: NO. Unlike the Code of 1889 (Art. 699), the new Civil Code
does not require that the signing of the testator, witnesses and
notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while
testator and witnesses must sign in the presence of each other, all
that is thereafter required is that "every will must be
acknowledged before a notary public by the testator and the
witnesses" (Art. 806); i.e., that the latter should avow to the
certifying officer the authenticity of their signatures and the
voluntariness of their actions in executing the testamentary
disposition.
This was done in this case. The subsequent signing and sealing by
the notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her
witnesses cannot be said to violate the rule that testaments should
be completed without interruption, or, as the Roman maxim puts
it, "uno eodem die ac tempore in eadem loco", and no reversible
error was committed by the lower court in so holding.
Article 806 of the new Civil Code does not contain words requiring
that the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was executed. The
decision admitting the will to probate is affirmed, with costs
against appellant.
Other Notes:
No grounds for reversing the trial Court's rejection of the
improbable story of the contestant Ledesma’s witnesses. It is
squarely contradicted by the concordant testimony of the
instrumental witnesses, Vicente Yap, Atty, Ramón C. Tabiana, and
his wife Gloria Montinola
 highly unlikely, and contrary to usage, that either
Tabiana or Yap should have insisted that Apolinaria,
an infirm lady then over 80 years old, should leave her
own house in order to execute her will
 Contestant's witnesses both claim to have heard the
word "testamento'' for the first time when Yap used it;
and yet they claimed ability to recall that word four
years later, despite the fact that the term meant
nothing to either.
 The cook Maria was positive that Yap brought the will,
and that the deceased alone signed it precisely on
March 30, 1950; but she could remember no other
date, nor give satisfactory explanation why that
particular day stuck in her mind.
 The driver Allado claimed to have heard what
allegedly transpired between Yap and Apolinaria from
the kitchen of the house, but it was proven that the
kitchen was in a different area
  Neither are we impressed by the argument that the
use of some Spanish terms in the codicil and testament
(like legado, partes iguales, plena, proiedad) is proof
that its contents were not understood by the testatrix
(plus appended to the Codicil in Visayan → those
terms are of common use even in the vernacular, and
that the deceased was a woman of wide business
interests.
 Now, the instrumental witnesses (who happen to be
the same ones who attested the will of 1950) asserted
that after the codicil had been signed by the testratrix
and the witnesses at San Pablo Hospital, the same was
signed and sealed by notary public Gimotea on the
same occasion. On the other hand, Gimotea afirmed
that he did not do so, but brought the codicil to his
office, and signed and sealed it there. The variance
does not necessarily imply conscious perversion of
truth on the part of the witnesses, but appears rather
due to a well-established phenomenon, the tendency
of the mind, in recalling past events, to substitute the
usual and habitual for what differs slightly from it.
ORTEGA v. VALMONTE
DOCTRINE: The conflict between the dates appearing on the
will does not invalidate the document, because the law does
not even require that a notarial will be executed and
acknowledged on the same occasion.
The variance in the dates of the will as to its supposed
execution and attestation was satisfactorily and persuasively
explained by the notary public and instrumental witnesses.
FACTS: Two years after the arrival of Placido from the United
States and at the age of 80 he wed Josefina who was then 28 years
old. But in a little more than two years of wedded bliss, Placido
died. Placido executed a notarial last will and testament written in
English and consisting of 2 pages, and dated 15 June 1983¸but
acknowledged only on 9 August 1983. The allowance to probate
of this will was opposed by Leticia, Placido’s sister. According to
the notary public who notarized the testator’s will, after the
testator instructed him on the terms and dispositions he wanted
on the will, the notary public told them to come back on 15 August
1983 to give him time to prepare.
The testator and his witnesses returned on the appointed date but
the notary public was out of town so they were instructed by his
wife to come back on 9 August 1983. The formal execution was
actually on 9 August 1983. He reasoned he no longer changed the
typewritten date of 15 June 1983 because he did not like the
document to appear dirty."
PETITIONER’S ARGUMENT
1. At the time of the execution of the notarial will Placido was
already 83 years old and was no longer of sound mind.
2. Josefina conspired with the notary public and the 3 attesting
witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation
of the will."
ISSUE:
1. Whether or not Placido has testamentary capacity at the time
he allegedly executed the will."
2. Whether or not the signature of Placido in the will was
procured by fraud or trickery."
HELD:
1. YES. Despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares
in them and even their location. As regards the proper objects of
his bounty, it was sufficient that he identified his wife as sole
beneficiary. The omission of some relatives from the will did not
affect its formal validity. There being no showing of fraud in its
execution, intent in its disposition becomes irrelevant.
2. NO. Fraud is a trick, secret devise, false statement, or pretense,
by which the subject of it is cheated. It may be of such character
that the testator is misled or deceived as to the nature or contents
of the document which he executes, or it may relate to some
extrinsic fact, in consequence of the deception regarding which
the testator is led to make a certain will which, but for fraud, he
would not have made.
The party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. The burden to show
otherwise shifts to the proponent of the will only upon a showing
of credible evidence of fraud. Omission of some relatives does not
affect the due execution of a will. Moreover, the conflict between
the dates appearing on the will does not invalidate the document,
because the law does not even require that a notarial will be
executed and acknowledged on the same occasion.
The variance in the dates of the will as to its supposed execution
and attestation was satisfactorily and persuasively explained by
the notary public and instrumental witnesses."
AZUELA v. CA
FACTS: Petitioner Felix Azuela sought to admit to probate the
notarial will of Eugenia E. Igsolo. However, this was opposed by
Geralda Castillo, who was the attorney-in-fact of “the 12
legitimate heirs” of the decedent. According to her, the will was
forged, and imbued with several fatal defects. Particularly, the
issue relevant in this subject is that the will was not properly
acknowledged. The notary public, Petronio Y. Bautista, only wrote
“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981
dito sa Lungsod ng Maynila.”
ISSUE: Whether or not the will is fatally defective as it was not
properly acknowledged before a notary public by the testator and
the witnesses as required by Article 806 of the Civil Code.
RULING: Yes, the will is fatally defective. By no manner of
contemplation can those words be construed as an
acknowledgment.
An acknowledgement 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
signore actually declares to the notary that the executor of a
document has attested to the notary that the same is his/her own
free act and deed.
It might be possible to construe the averment as a jurat, even
though it does not hew to the usual language thereof. A jurat is that
part of an affidavit where the notary certifies that before him/her,
the document was subscribed and sworn to by the executor.
Yet even if we consider what was affixed by the notary public as a
jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be “acknowledged,” and
not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath that the decedent and the
instrumental witnesses executed or signed the will as their own
free act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or
those made beyond the free consent of the testator.

GUERRERO v. BIHIS
FACTS: Felisa Tamio de Buenaventura, mother of petitioner Bella
A. Guerrero and respondent Resurreccion A. Bihis, died. Guerrero
filed for probate in the RTC QC. Respondent Bihis opposed her
elder sister’s petition on the following grounds: the will was not
executed and attested as required by law; its attestation clause
and acknowledgment did not comply with the requirements of the
law; the signature of the testatrix was procured by fraud and
petitioner and her children procured the will through undue and
improper pressure and influence. The trial court 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 at No. 40
Kanlaon Street, Quezon City before Atty. Macario O. Directo who
was a commissioned notary public for and in Caloocan City.
ISSUE: WON 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?
HELD: NO. 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. This formal requirement is one of the indispensable
requisites for the validity of a will. In other words, a notarial will
that is not acknowledged before a notary public by the testator
and the instrumental witnesses is void and cannot be accepted for
probate.
The Notarial law provides: 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.
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.
In the same vain, the testatrix and the instrumental 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.
GARCIA v. VASQUEZ
FACTS: This is a petition for appeal from the CFI of Manila
admitting to probate the will of Gliceria Avelino del Rosario
(“Gliceria”) executed in 1960. Likewise, this is also an appeal to
remove the current administrator, Consuelo Gonzales-Precilla(
“Consuelo”) as special administratrix of the estate on the ground
of Consuelopossesses interest adverse to the estate and to order
the RD of Manila to annotate on the registered lands a notice of Lis
Pendens.
When Gliceria died she had no descendants, ascendants, bros or
sisses and 90 yrs old. After which, her niece, Consuelo petitioned
the court to be the administratrix of the properties. The court
approved this because Consuelo has been was already managing
the properties of the deceased during her lifetime. What the
respondents allege is that in the last years of
the deceased, Consuelo sought the transfer of certain parcels of
land valued at 300k for a sale price of 30k to her husband Alfonso
through fraud and intimidation.
In addition, the oppositors presented evidence
that Consuelo asked the court to issue new Certificates of Titles to
certain parcels of land for the purpose of preparing the inventory
to be used in the probate. Also shown was that NEW TCTs were
issued by the RD for certain lands of
the deceased after Consuelo asked for the old TCTs.
At the end of the probate proceedings, the court ruled that
Counsuelo should be made the administrator, and that the will
was duly executed because of these reasons: NO EVIDENCE HAS
BEEN PRESENTED to establish that the deceased was not of sound
mind, that even though the allegations state that the deceased
prepared another will in 1956 (12pages), the latter is not
prevented from executing another will in 1960 (1page), and that
inconsistencies in the testimonies of the witnesses prove their
truthfulness.
ISSUE: Whether or not the will in 1960 (1 page) duly/properly
executed?
RULING: The will is not valid. Provision of Article 808 mandatory.
Therefore, For all intents and purposes of the rules on probate, the
testatrix was like a blind testator, and the due execution of her will
would have required observance of Article 808. The rationale
behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will himself (as when he is
illiterate) , is to make the provisions thereof known to him, so that
he may be able to object if they are not in accordance with his
wishes. Likewise, the 1970 will was done in Tagalog which
the deceased is not well versed but in Spanish. This creates doubt
as to the due execution of the will and as well as the typographical
errors contain therein which show the haste in preparing the 1
page will as compared to the 12 page will created in 1956 written
in Spanish. ALSO, as to the blindness, there was proof given by the
testimony of the doctor that the deceased could not read at
near distances because of cataracts. (Testatrix’s vision was
mainly for viewing distant objects and not for reading print.)
Since there is no proof that it was read to the deceased twice, the
will was NOT duly executed.
ALSO, Consuelo should be removed as administrator because she
is not expected to sue her own husband to reconvey the lands to
the estate alleged to have been transferred by the deceased to her
own husband. The notice of lis pendens is also not proper where
the issue is not an action in rem, affecting real property or the title
thereto.
ALVARADO v. GAVIOLA
DOCTRINE: Art. 808 applies not only to blind testators but
also to those who are “incapable of reading their wills.”
Substantial compliance suffices where the purpose has been
served.
FACTS:
On 5 November 1977, the 79-year old Brigido Alvarado
executed a notarial will entitled “Huling Habilin” wherein he
disinherited an illegitimate son, petitioner Cesar Alvarado, and
expressly revoked a previously executed holographic will at the
time awaiting probate before the RTC of Sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the
notary public and by private respondent Bayan Rino who were
present at the execution, the testator did not read the final draft
of the will himself. Instead, private respondent Rino, as the lawyer
who drafted the eight paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the
notary public. The latter four followed the reading with their own
respective copies previously furnished them.
Meanwhile, Brigido’s holographic will was subsequently
admitted to probate on 9 December 1977.
On December 29, 1977, a codicil entitled “Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na
May Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed
changing some dispositions in the notarial will to generate cash
for the testator’s eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses were
unchanged. Again, the testator did not personally read the final
draft of the codicil. Instead, it was private respondent who read it
aloud in his presence and in the presence of the same three
instrumental witnesses the notary public who followed the
reading using their own copies.
Private respondent Bayani Rino as executor filed a
petition for the probate of the notarial will and codicil with RTC of complied with? YES.
Laguna.
Petitioner Cesar Alvarado filed an Opposition on the
following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was
insane or otherwise mentally incapacitated to make a will at the
time of its execution due to senility and old age; that the will was
executed under duress, or influence of fear or threats; that it was
procured by undue and improper pressure and influence on the
part of the beneficiary who stands to get the lion’s share of the
testator’s estate; and lastly, that the signature of the testator was Brigido did read his will because of his poor, defective, or blurred
procured by fraud or trick.
When the oppositor-petitioner Alvarado, however, failed
to substantiate the grounds for opposition, a Probate Order was
issued from which an appeal was made to the CA. The main thrust
of the appeal was that the deceased was blind within the meaning“The rationale behind the requirement of reading the will to the testator
of the law at the time his “Huling Habilin” and the codicil attached
thereto were executed; that since the reading required by Art. 808
of the Civil Code was admittedly not complied with, probate of the
deceased’s last will and codicil should have been denied.
On 11 April 1986, the CA rendered the decision that
Brigido Alvarado was not blind at the time his last will and codicil
were executed; that assuming his blindness, the reading
requirement of Art. 808 was substantially complied with when
both documents were read aloud to the testator with each of the
three instrumental witnesses and the notary public following the
reading with their respective copies of the instruments. The
appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its
purpose of making known to the testator the contents of the
drafted will was served.
ISSUES:
1. WON Brigido Alvarado blind for purposes of Art. 808 at the time
his “Huling Habilin” and its codicil were executed? YES.
2. If so, was the double-reading requirement of said article
RULING:
1. There is no dispute that Brigido Alvarado was not totally blind
at the time the will and codicil were executed. However, his vision
on both eyes was only of “counting fingers at three (3) feet” by
reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye
specialist on 14 December 1977.
The fact remains, as testified to by his witnesses, that
vision making it necessary for private respondent Bayani Rino to
do the actual reading for him. The following pronouncement in
Garcia vs. Vasquez provides an insight into the scope of the term
“blindness” as used in Art. 808, to wit:
if he is blind or incapable of reading the will himself (as when he is
illiterate), is to make the provisions thereof known to him, so that
he may be able to object if they are not in accordance with his
wishes x x x x”
Art. 808 applies not only to blind testators but also to those who
are “incapable of reading their wills.” Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his “poor,”
“defective,” or “blurred” vision, there can be no other course for
us but to conclude that Brigido Alvarado comes within the scope
of the term “blind” as it is used in Art. 808. Unless the contents
were read to him, he had no way of ascertaining whether or not
the lawyer who drafted the will and codicil did so conformably
with his instructions.
2. Article 808 requires that in case of testators like Brigido
Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public before
whom the will was acknowledged. The purpose is to make known
to the incapacitated testator the contents of the document before
signing and to give him an opportunity to object if anything is
contrary to his instructions.
In the case at bar, private respondent Bayani 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 acknowledgement take place. There is no
evidence that the contents of the will and codicil were not
sufficiently made known and communicated to the testator. On
the contrary, with respect to the “Huling Habilin,” the day of the
execution was not the first time that Brigido had affirmed the
truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado
already acknowledged that the will was drafted in accordance
with his expressed wishes even prior to 5 November 1977 when
he went to the testator’s residence precisely for the purpose of
securing his conformity to the draft. Moreover, aside from Atty.
Rino, the notary public and the three instrumental witnesses read
the will and codicil, albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente O. Evidente (one of the
three instrumental witnesses and the testator’s physician) asked
the testator whether the contents of the documents were of his
own free will. Brigido answered in the affirmative.
The spirit behind the law was served though the letter was
not. Although there should be strict compliance with the
substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator’s will.
Brigido Alvarado had expressed his last wishes in clear and
unmistakable terms in his “Huling Habilin” and the codicil
attached thereto. Substantial compliance suffices where the
purpose has been served.
ALUAD v. ALUAD
DOCTRINE: “x x x that the donation is mortis causa is fortified
by Matilde’s acts of possession as she continued to pay the
taxes for the said properties which remained under her
name; appropriated the produce; and applied for free patents
for which OCTs were issued under her name.”
The donation being then mortis causa, the formalities of a will
should have been observed but they were not, as it was witnessed
by only two, not three or more witnesses following Article 805 of
the Civil Code. Further, the witnesses did not even sign the
attestation clause the execution of which clause is a requirement
separate from the subscription of the will and the affixing of
signatures on the left-hand margins of the pages of the will.
FACTS:
 Petitioners’ mother, Maria Aluad (Maria), and respondent
Zenaido Aluad were raised by the childless spouses
Matilde Aluad (Matilde) and Crispin Aluad (Crispin).
 Crispin was the owner of six lots identified as Lot Nos. 674,
675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz.
After Crispin died, his wife Matilde adjudicated the lots to
herself. O
 n November 14, 1981, Matilde executed a document
entitled “Deed of Donation of Real Property Inter Vivos”
(Deed of Donation) in favor of petitioners’ mother Maria
covering all the six lots which Matilde inherited from her
husband Crispin. The Deed of Donation provided:
“That, for and in consideration of the love and affection of the DONOR
[Matilde] for the DONEE [Maria], the latter being adopted and
having been brought up by the former the DONOR, by these
presents, transfer and convey, BY WAY OF DONATION, unto the
DONEE the property above-described, to become effective upon
the death of the DONOR, but in the event that the DONEE should
die before the DONOR, the present donation shall be deemed
rescinded and [of] no further force and effect; Provided, however,
that anytime during the lifetime of the DONOR or anyone of them
who should survive, they could use, encumber or even dispose of
any or even all of the parcels of land herein donated.”
 1986: Original Certificates of Title over Lot Nos. 674 and
676 were issued in Matilde’s name.
 1991: Matilde sold Lot No. 676 to respondent Zenaido, by
a Deed of Absolute Sale of Real Property.
 1992: Matilde executed a last will and testament, devising
Lot Nos. 675, 677, 682, and 680 to Maria, and her
“remaining properties” including Lot No. 674 to
respondent.
 Matilde died in 1994, while Maria died on September 24
of the same year.
 1995: Maria’s heirs-herein petitioners filed before the
RTC of Roxas City a Complaint, for declaration and
recovery of ownership and possession of Lot Nos. 674 and
676, and damages against respondent, alleging: That in
1978, they possessed the 2 lands until 1991, when
defendant entered and possessed the 2 lands, claiming it
as his as the adopted son of Crispin Aluad.
 In his Answer: Zenaido claimed that Lot 674 was
adjudicated to him in the Last Will and Testament of
Matilde; while Lot 676 was purchased by him from
Matilde
 RTC: held that Matilde could not have transmitted any
right over Lot Nos. 674 and 676 to respondent, she having
previously alienated them to Maria via the Deed of
Donation.
 CA reversed: it was a donation mortis causa and did not
comply with formalities of a will (Art. 805 – three more
credible witness; in this case 2 lang); Zenaido rightful
owner of Lot 676 while Lot 674 has not yet been probated
ISSUE: W/N the donation to Maria (petitioners’ mother) is one of
mortis causa, and thus must comply with the formalities of a will?
HELD: YES and YES.
The Court finds the donation to petitioners’ mother one of mortis
causa, it having the following characteristics:
(1) It conveys no title or ownership to the transferee before the
death of the transferor; or what amounts to the same thing, that
the transferor should retain the ownership (full or naked) and
control of the property while alive;
(2) That before the death of the transferor, the transfer should be
revocable by the transferor at will, ad nutum; but (3) That the
transfer should be void if the transferor should survive the
transferee.
The phrase in the earlier-quoted Deed of Donation “to become
effective upon the death of the DONOR” admits of no other
interpretation than to mean that Matilde did not intend to transfer
the ownership of the six lots to petitioners’ mother during her
lifetime.
The statement in the Deed of Donation reading “anytime during
the lifetime of the DONOR or anyone of them who should survive,
they could use, encumber or even dispose of any or even all the
parcels of land herein donated” means that Matilde retained
ownership of the lots and reserved in her the right to dispose
them. For the right to dispose of a thing without other limitations
than those established by law is an attribute of ownership.
The phrase in the Deed of Donation “or anyone of them who
should survive” is of course out of sync. For the Deed of Donation
clearly stated that it would take effect upon the death of the donor,
hence, said phrase could only have referred to the donor Matilde.
Petitioners themselves concede that such phrase does not refer to
the donee.
It is well to point out that the last sentence in the disputed
paragraph should only refer to Matilde Aluad, the donor,
because she was the only surviving spouse at the time the
donation was executed on 14 November 1981, as her husband –
Crispin Aluad had long been dead as early as 1975.
As the CA observed, “x x x that the donation is mortis causa is
fortified by Matilde’s acts of possession as she continued to pay
the taxes for the said properties which remained under her name;
appropriated the produce; and applied for free patents for which
OCTs were issued under her name. The donation being then
mortis causa, the formalities of a will should have been observed
but they were not, as it was witnessed by only two, not three or
more witnesses following Article 805 of the Civil Code.
Further, the witnesses did not even sign the attestation clause the
execution of which clause is a requirement separate from the
subscription of the will and the affixing of signatures on the left-
hand margins of the pages of the will. So the Court has
emphasized:
“x x x Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will from the
requisite that the will be “attested and subscribed by [the
instrumental witnesses]. The respective intents behind these two
classes of signature[s] are distinct from each other. The signatures
on the left-hand corner of every page signify, among others, that
the witnesses are aware that the page they are signing forms part
of the will. On the other hand, the signatures to the attestation
clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even
if the instrumental witnesses signed the left-hand margin of the
page containing the unsigned attestation clause, such signatures
cannot demonstrate these witnesses’ undertakings in the clause,
since the signatures that do appear on the page were directed
towards a wholly different avowal.
x x x It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which
the will is written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed the will
and all the pages thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have stated
these elemental facts would be their signatures on the attestation
clause.”
Furthermore, the witnesses did not acknowledge the will before
the notary public, which is not in accordance with the
requirement of Article 806 of the Civil Code that every will must
be acknowledged before a notary public by the testator and the
witnesses.
The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was
not also followed. The Deed of Donation which is, as already
discussed, one of mortis causa, not having followed the formalities
of a will, it is void and transmitted no right to petitioners’ mother.
But even assuming arguendo that the formalities were observed,
since it was not probated, no right to Lot Nos. 674 and 676 was
transmitted to Maria. Matilde thus validly disposed of Lot No. 674
to respondent by her last will and testament, subject of course to
the qualification that her (Matilde’s) will must be probated. With
respect to Lot No. 676, the same had, as mentioned earlier, been
sold by Matilde to respondent on August 26, 1991.
Notes:
As to Petitioners’ argument that assuming that the donation of Lot
No. 674 in favor of their mother is indeed mortis causa, hence,
Matilde could devise it to respondent, the lot should nevertheless
have been awarded to them because they had acquired it by
acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good
faith and in the concept of an owner since 1978
 Petitioners failed to raise the issue of acquisitive
prescription before the lower courts, however, they
having laid their claim on the basis of inheritance from
their mother. As a general rule, points of law, theories, and
issues not brought to the attention of the trial court cannot
be raised for the first time on appeal. For a contrary rule
would be unfair to the adverse party who would have no
opportunity to present further evidence material to the
new theory, which it could have done had it been aware of
it at the time of the hearing before the trial court.