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G.R. No.

103554 May 28, 1993


TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,
AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA *
ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the
Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is
the issue of whether or not the attestation clause contained in the last will and testament
of the late Mateo Caballero complies with the requirements of Article 805, in relation to
Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will and testament at
his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano
Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted
by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will.
1
It was declared therein, among other things, that the testator was
leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel
Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do
not appear to be related to the testator.
2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed
as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of
Cebu seeking the probate of his last will and testament. The probate court set the
petition for hearing on August 20, 1979 but the same and subsequent scheduled
hearings were postponed for one reason to another. On May 29, 1980, the testator
passed away before his petition could finally be heard by the probate court.
3
On February
25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special
administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so
appointed by the probate court in its order of March 6, 1981.
4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had
their said petition intestate proceeding consolidated with Special Proceeding No. 3899-
R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of
the Testator's will and the appointment of a special administrator for his estate.
5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as
Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the
return of the records of Special Proceeding No. 3965-R to the archives since the testate
proceeding for the probate of the will had to be heard and resolved first. On March 26,
1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial
Court of Cebu where it remained until the conclusion of the probate proceedings.
6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the testator was already in the poor
state of health such that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature of the testator
therein.
7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary
public Atty. Filoteo Manigos, testified that the testator executed the will in question in
their presence while he was of sound and disposing mind and that, contrary to the
assertions of the oppositors, Mateo Caballero was in good health and was not unduly
influenced in any way in the execution of his will. Labuca also testified that he and the
other witnesses attested and signed the will in the presence of the testator and of each
other. The other two attesting witnesses were not presented in the probate hearing as
the had died by then.
8

On April 5, 1988, the probate court rendered a decision declaring the will in question as
the last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome
the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told
the Court that indeed Mateo Caballero executed the Last Will and Testament now
marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo
Caballero who initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly underscores the fact that this
was indeed his Last Will. At the start, counsel for the oppositors manifested that he
would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting
expert of the NBI but it would seem that despite their avowal and intention for the
examination of this signature of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the
law.
9

Undaunted by the said judgment of the probate court, petitioners elevated the case in
the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in
question is null and void for the reason that its attestation clause is fatally defective
since it fails to specifically state that the instrumental witnesses to the will witnessed the
testator signing the will in their presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision
10
affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with
Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be considered
as having substantialy complied with the requirements of Art. 805 of the Civil Code.
What appears in the attestation clause which the oppositors claim to be defective is "we
do certify that the testament was read by him and the attestator, Mateo Caballero, has
published unto us the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of the upper part of each
page, as his Last Will and Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and all of us (emphasis
supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to
indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of the
law would have it that the testator signed the will "in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another." If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in
substantial compliance with the requirement of the law."
11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the
same was denied in the latter's resolution of January 14, 1992,
12
hence this appeal now
before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord
with the law and settled jurisprudence on the matter and are now questioning once more, on the same
ground as that raised before respondent court, the validity of the attestation clause in the last will of
Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted,
with the formalities prescribed by law, to control to a certain degree the disposition of his
estate after his death.
13
Under the Civil Code, there are two kinds of wills which a testator may
execute.
14
the first kind is the ordinary or attested will, the execution of which is governed by Articles 804
to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation should state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witness, it shall be interpreted
to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator
and the attesting witness.
15
hence it is likewise known as notarial will. Where the attestator is deaf or
deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he
should designate two persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once,
by anyone of the witnesses thereto, and then again, by the notary public before whom it is
acknowledged.
16

The other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the testator himself. This kind of will, unlike the
ordinary type, requires no attestation by witnesses. A common requirement in both
kinds of will is that they should be in writing and must have been executed in a
language or dialect known to the testator.
17

However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause
likewise need not even be known to the attesting witnesses.
18
The last paragraph of Article
805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the manner
of the execution the same.
19
It is a separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance
with the essential formalities required by law has been observed.
20
It is made for the purpose of
preserving in a permanent form a record of the facts that attended the execution of a particular will, so
that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be
proved.
21

Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will,
22
should state (1) the number of the pages used upon
which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed the
will and every page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which
the will is written is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the pages;
23
whereas the
subscription of the signature of the testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very same instrument executed by
the testator and attested to by the witnesses.
24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause.
25
The attestation clause, therefore,
provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof.
26
As it
appertains only to the witnesses and not to the testator, it need be signed only by them.
27
Where it is left
unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause
on a subsequent occasion in the absence of the testator and its witnesses.
28

In its report, the Code Commission commented on the reasons of the law for requiring
the formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on the law on
wills in this Project consists in the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in expressing his last wishes, but with
sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. . . .
29

2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective signatures of the testator and the
three attesting witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting witnesses
hereto.
30
Since it is the proverbial bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO CABALLERO; has published unto
us the foregoing Will consisting of THREE PAGES, including the Acknowledgment,
each page numbered correlatively in the letters on the upper part of each page, as his
Last Will and Testament and he has the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, in the presence of the said
testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another. "Attestation" and
"subscription" differ in meaning. Attestation is the act of senses, while subscription is the
act of the hand. The former is mental, the latter mechanical, and to attest a will is to
know that it was published as such, and to certify the facts required to constitute an
actual and legal publication; but to subscribe a paper published as a will is only to write
on the same paper the names of the witnesses, for the sole purpose of identification.
31

In Taboada vs. Rizal,
32
we clarified that attestation consists in witnessing the testator's execution of
the will in order to see and take note mentally that those things are done which the statute requires for the
execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is
the signing of the witnesses' names upon the same paper for the purpose of identification of such paper
as the will which was executed by the testator. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed
in the presence of the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of
the express requirements of the third paragraph of Article 805 of the Civil Code for
attestation clauses, fails to specifically state the fact that the attesting witnesses the
testator sign the will and all its pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the presence of the testator and of
each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed
is the fact that while it recites that the testator indeed signed the will and all its pages in
the presence of the three attesting witnesses and states as well the number of pages
that were used, the same does not expressly state therein the circumstance that said
witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the testator
and not the instrumental witnesses as it is immediately preceded by the words "as his
Last Will and Testament." On the other hand, although the words "in the presence of the
testator and in the presence of each and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be interpreted as referring only to
the testator signing in the presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin." What is then clearly lacking, in
the final logical analysis , is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal
defect or imperfection which must necessarily result in the disallowance of the will that
is here sought to be admitted to probate. Petitioners are correct in pointing out that the
aforestated defect in the attestation clause obviously cannot be characterized as merely
involving the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the pertinent provision
thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is not proved that the will was
in fact executed and attested in substantial compliance with all the requirements of
article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof
and at the left margin of each page by the three attesting witnesses, it certainly cannot
be conclusively inferred therefrom that the said witness affixed their respective
signatures in the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes the fact that it was
indeed signed, but it does not prove that the attesting witnesses did subscribe to the will
in the presence of the testator and of each other. The execution of a will is supposed to
be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur
of effectivity.
33

We believe that the further comment of former Justice J.B.L. Reyes
34
regarding Article 809,
wherein he urged caution in the application of the substantial compliance rule therein, is correct and
should be applied in the case under consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings. (Emphasis
ours.)
3. We stress once more that under Article 809, the defects and imperfections must only
be with respect to the form of the attestation or the language employed therein. Such
defects or imperfections would not render a will invalid should it be proved that the will
was really executed and attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and attestation has been held to be
limited to merely an examination of the will itself without resorting to evidence aliunde,
whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the
fact that the attesting witnesses signed each and every page of the will in the presence
of the testator and of each other.
35
In such a situation, the defect is not only in the form or
language of the attestation clause but the total absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is precisely the defect complained of in the
present case since there is no plausible way by which we can read into the questioned attestation clause
statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by
the testator of the will and all of its pages and that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or
relied on by respondents since it presupposes that the defects in the attestation clause
can be cured or supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied within the execution of the will. In
other words, defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts
may be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by the indirection what in
law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of
views as to which manner of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required in the execution of wills. The
formal requirements were at that time embodied primarily in Section 618 of Act No. 190,
the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act. No. 190 and the amendment thereto
were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in
the case of Abangan vs. Abangan,
36
where it was held that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also
emphasized that one must not lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will, hence when an interpretation already given assures such ends,
any other interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be disregarded. The subsequent cases ofAvera vs.
Garcia,
37
Aldaba vs. Roque,
38
Unson vs. Abella,
39
Pecson vs. Coronel,
40
Fernandez vs. Vergel de Dios,
et al.,
41
and Nayve vs. Mojal, et al.
42
all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities
that should be observed in the execution of wills are mandatory in nature and are to be
strictly construed was followed in the subsequent cases of In the Matter of the Estate of
Saguinsin,
43
In re Will of Andrada,
44
Uy Coque vs. Sioca,
45
In re Estate of Neumark,
46
and Sano vs.
Quintana.
47

Gumban vs. Gorecho, et al.,
48
provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause had
failed to state that the witnesses signed the will and each and every page thereof on the left margin in the
presence of the testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants
rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil.,
180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to
contrast and, if possible, conciliate the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which
does not recite that the witnesses signed the will and each and every page thereof on
the left margin in the presence of the testator is defective, and such a defect annuls the
will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal
and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal
and Aguilar, supra, wherein it was held that the attestation clause must estate the fact
that the testator and the witnesses reciprocally saw the signing of the will, for such an
act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was
also held that the fact that the testator and the witnesses signed each and every page of
the will can be proved also by the mere examination of the signatures appearing on the
document itself, and the omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If
we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal, decision was concurred in by only four members
of the court, less than a majority, with two strong dissenting opinions; the Quintana
decision was concurred in by seven members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal decision was promulgated in December,
1924, while the Quintana decision was promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act No.
2645, and in section 634 of the same Code, as unamended. It is in part provided in
section 61, as amended that "No will . . .shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation shallstate the number of sheets or
pages used, upon which the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the testator and of each other."
Codal section 634 provides that "The will shall be disallowed in either of the following
case: 1. If not executed andattested as in this Act provided." The law not alone carefully
makes use of the imperative, but cautiously goes further and makes use of the negative,
to enforce legislative intention. It is not within the province of the courts to disregard the
legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the
extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court
that once more appeared to revive the seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs. Morata,
49
Rodriguez vs. Alcala,
50
Enchevarria vs.
Sarmiento,
51
and Testate Estate of Toray
52
went the way of the ruling as restated inGumban. But De
Gala vs. Gonzales, et al.,
53
Rey vs. Cartagena,
54
De Ticson vs. De Gorostiza,
55
Sebastian vs.
Panganiban,
56
Rodriguez vs. Yap,
57
Grey vs. Fabia,
58
Leynez vs. Leynez,
59
Martir vs. Martir,
60
Alcala vs.
De Villa,
61
Sabado vs.
Fernandez,
62
Mendoza vs. Pilapil,
63
and Lopez vs. Liboro,
64
veered away from the strict interpretation
rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to be in accord with the modern
tendency to give a liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said that
the provisions of Section 618 of the Code of Civil Procedure, as amended regarding the
contents of the attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily
restrained the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has become more
liberal in the interpretation of the formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez
vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June
21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back to
the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization of
the manner of executing wills, article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article
829."
65

The so-called liberal rule, the Court said in Gil vs. Murciano,
66
"does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and
where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void
in any part of the document or supply missing details that should appear in the will itself. They only permit
a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the
existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.
67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly
directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate of the said
decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.






G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following
attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano dialect which is
spoken and understood by the testator, and it bears the corresponding number in letter
which compose of three pages and all them were signed in the presence of the testator
and witnesses, and the witnesses in the presence of the testator and all and each and
every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO
EVANGELISTA
(Sgd.) "ROSENDA
CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express request of the testator in the
presence of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request said testator has
written a cross at the end of his name and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the
pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as
required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing
by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that
the cross is as much a signature as a thumbmark, the latter having been held sufficient by this
Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81
Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we are
not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses,
and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of First Instance of
Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of
the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada,
Petitioner", which denied the probate of the will, the motion for reconsideration and the
motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-
Visayan dialect, the will consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3) instrumental witnesses. The second
page which contains the attestation clause and the acknowledgment is signed at the
end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also required to submit the names of
the intestate heirs with their corresponding addresses so that they could be properly
notified and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation
and/or motion, ex partepraying for a thirty-day period within which to deliberate on any
step to be taken as a result of the disallowance of the will. He also asked that the ten-
day period required by the court to submit the names of intestate heirs with their
addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the
will. However, the motion together with the previous manifestation and/or motion could
not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding judge of the
respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In the same order of denial, the motion for
the appointment of special administrator was likewise denied because of the petitioner's
failure to comply with the order requiring him to submit the names of' the intestate heirs
and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that
the testatrix and all the three instrumental and attesting witnesses sign at the end of the
will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed the will and the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an
the three subscribing witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another because the attesting witnesses to a will
attest not merely the will itself but also the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is found, at the left hand margin
of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic validity
of the wig that the signatures of the subscribing witnesses should be specifically located
at the end of the wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the space or
particular location where the signatures are to be found as long as this space or
particular location wherein the signatures are found is consistent with good faith and the
honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed
at its end by the testator himself or by the testator's name written by another person in
his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation
consists in witnessing the testator's execution of the will in order to see and take note
mentally that those things are, done which the statute requires for the execution of a will
and that the signature of the testator exists as a fact. On the other hand, subscription is
the signing of the witnesses' names upon the same paper for the purpose of
Identification of such paper as the will which was executed by the testator. (Ragsdale v.
Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that
the will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the
will attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from
the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective
permeating the provisions on the law on wills in this project consists in the liberalization
of the manner of their execution with the end in view of giving the testator more freedom
in expressing his last wishes but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and improper pressure and influence
upon the testator. This objective is in accord with the modern tendency in respect to the
formalities in the execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not
for the defect in the place of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present
case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire wig that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at the bottom while
the instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages
including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation clause
must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or
sheets upon which the win is written, which requirement has been held to be mandatory
as an effective safeguard against the possibility of interpolation or omission of some of
the pages of the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil.
405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by
a consideration or examination of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets or pages upon which the will
is written, however, the last part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar
liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control where the purpose of the law to
guarantee the Identity of the testament and its component pages is sufficiently attained,
no intentional or deliberate deviation existed, and the evidence on record attests to the
fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may
sabotage the will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent
court which denied the probate of tile will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special administrator are set aside. The
respondent court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.
SO ORDERED

Taboada vs. Rosal GR L-36033. November 5, 1982
FACTS Petitioner Apolonio Taboada filed a petition for probate of the will of the late Dorotea perez. The will
consisted of two pages, the first page containing all the testamentary dispositions of the testator and was signed at
the end or bottom of the page by the testatrix alone and at the left hand margin by the three instrumental witnesses.
The second page consisted of the attestation clause and the acknowledgment was signed at the end of the
attestation clause by the three witnesses and at the left hand margin by the testatrix. The trial court disallowed the will
for want of formality in its execution because the will was signed at the bottom of the page solely by the testatrix,
while the three witnesses only signed at the left hand margin of the page. The judge opined that compliance with the
formalities of the law required that the witnesses also sign at the end of the will because the witnesses attest not only
the will itself but the signature of the testatrix. Hence, this petition.

ISSUE Was the object of attestation and subscription fully when the instrumental witnesses signed at the left
margin of the sole page which contains all the testamentary dispositions?
HELD
(SHORT RULING)

On certiorari, the Supreme Court held a) that the objects of attestation and subscription were fully met and satisfied in
the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly identified by a subscribing witness to be the same
will executed by the testatrix; and b) that the failure of the attestation clause to state the number of pages used in
writing the will would have been a fatal defect were it not for the fact that it is really and actually composed of only two
pages duly signed by the testatrix and her instrumental witnesses.

(LONG RULING [VERBATIM])

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator
himself or by the testator's name written by another person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done which the statute requires for
the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which
was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law
on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective
is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code
Commission, p. 103).
The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so
when the will was properly identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order

G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's
will executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which
contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in
the name and under the direction of the testatrix) and by three witnesses. The following sheet
contains only the attestation clause duly signed at the bottom by the three instrumental
witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three
witnesses, nor numbered by letters; and these omissions, according to appellants' contention,
are defects whereby the probate of the will should have been denied. We are of the opinion that
the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by the
testator and three witnesses in the presence of each other, Act No. 2645 (which is the one
applicable in the case) evidently has for its object (referring to the body of the will itself) to avoid
the substitution of any of said sheets, thereby changing the testator's dispositions. But when
these dispositions are wholly written on only one sheet signed at the bottom by the testator and
three witnesses (as the instant case), their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets and must have referred
to the sheets which the testator and the witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that this sheet, already signed at the
bottom, be signed twice. We cannot attribute to the statute such an intention. As these
signatures must be written by the testator and the witnesses in the presence of each other, it
appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be unneccessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would add nothing. We cannot assume that
the statute regards of such importance the place where the testator and the witnesses must sign
on the sheet that it would consider that their signatures written on the bottom do not guaranty
the authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed
on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know
whether any sheet of the will has been removed. But, when all the dispositive parts of a will are
written on one sheet only, the object of the statute disappears because the removal of this
single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying
the will in question, the signatures of the testatrix and of the three witnesses on the margin and
the numbering of the pages of the sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add that same is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and not to
the testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which
contains all the testamentary dispositions and is signed at the bottom by the testator and three
witnesses and the second contains only the attestation clause and is signed also at the bottom
by the three witnesses, it is not necessary that both sheets be further signed on their margins by
the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain
these primordal ends. But, on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will. So when
an interpretation already given assures such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely unnecessary, useless and frustative of the
testator's last will, must be disregarded. lawphil. net
As another ground for this appeal, it is alleged the records do not show that the testarix knew
the dialect in which the will is written. But the circumstance appearing in the will itself that same
was executed in the city of Cebu and in the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this
dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs
against the appellants. So ordered.

G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document
and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as
such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to
be published for three (3) successive weeks, previous to the time appointed, in the newspaper
"Manila chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to
which proponent objected. Hence, on November 18, 1958, the court issued an order appointing
the Philippine Trust Company as special administrator. 1wph 1. t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but
on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition,
alleging that the decedent left a will executed in duplicate with all the legal requirements, and
that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July
30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings the court issued the order
admitting the will and its duplicate to probate. From this order, the oppositors appealed directly
to this Court, the amount involved being over P200,000.00, on the ground that the same is
contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last
will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three instrumental witnesses, namely:
attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will
was actually prepared by attorney Fermin Samson, who was also present during the execution
and signing of the decedent's last will and testament, together with former Governor Emilio
Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres and
Natividad were in the Philippines at the time of the hearing, and both testified as to the due
execution and authenticity of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who
actually prepared the document. The latter also testified upon cross examination that he
prepared one original and two copies of Josefa Villacorte last will and testament at his house in
Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one
unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the
end and in every page, it does not contain the signature of one of the attesting witnesses, Atty.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended
and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will
and its duplicate were subscribed at the end and on the left margin of each and every page
thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in
the testatrix's presence and in that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the original); that pages of the original and
duplicate of said will were duly numbered; that the attestation clause thereof contains all the
facts required by law to be recited therein and is signed by the aforesaid attesting witnesses;
that the will is written in the language known to and spoken by the testatrix that the attestation
clause is in a language also known to and spoken by the witnesses; that the will was executed
on one single occasion in duplicate copies; and that both the original and the duplicate copies
were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June
2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that
he may have lifted two pages instead of one when he signed the same, but affirmed that page
three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the
same occasion as the original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and pressure because the
testatrix was deceived into adopting as her last will and testament the wishes of those who will
stand to benefit from the provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact
of the deceased and not enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and not to oppose the probate
of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed
both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three attesting witnesses, the notary public
who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the
will and its duplicate were executed in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a language known to and
spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appearing in the duplicate original were not written by
the same had which wrote the signatures in the original will leaves us unconvinced, not merely
because it is directly contradicted by expert Martin Ramos for the proponents, but principally
because of the paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond the writer's range of
normal scriptural variation. The expert has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we
feel that with so few standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that
would justify the charge of forgery, taking into account the advanced age of the testatrix, the
evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed
right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering the standard and challenged writings were
affixed to different kinds of paper, with different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of
the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United
States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are
more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14
Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for
making a testament; otherwise, the decedent might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other property and that they should respect the
distribution made in the will, under penalty of forfeiture of their shares in the free part do not
suffice to prove fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion
of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses
are valid or not is a matter to be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their joining as grounds for opposing
probate shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature
to one page of a testament, due to the simultaneous lifting of two pages in the course of signing,
is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is
assured not only the fact that the testatrix and two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness
over whose conduct she had no control, where the purpose of the law to guarantee the identity
of the testament and its component pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause and the acknowledgment
before the Notary Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot
by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan
vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the
pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect
(Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require
satisfaction of the legal requirements in order to guard against fraud and bid faith but without
undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here
into a dilemma; if the original is defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and
can be probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original testament was inadvertent and not
intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication
does not affect the jurisdiction of the probate court, already conferred by the original publication
of the petition for probate. The amended petition did not substantially alter the one first filed, but
merely supplemented it by disclosing the existence of the duplicate, and no showing is made
that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and
appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that
the amendment deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.

G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
D E C I S I O N
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of
Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is written
is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is
fatally defective. And perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to
deny probate. A notarial will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog
of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in
the due execution of the notarial will. Article 806 likewise imposes another safeguard to the
validity of notarial wills that they be acknowledged before a notary public by the testator and
the witnesses. A notarial will executed with indifference to these two codal provisions opens
itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court
(RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the
notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of
the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-
hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa
kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at
kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon,
yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na
nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling
habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat
at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng
Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8
1

The three named witnesses to the will affixed their signatures on the left-hand margin of both
pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad.
Petitioner prayed that the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself
as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.
2
Geralda Castillo claimed that
the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a
defense in several court cases filed by oppositor against petitioner, particularly for forcible entry
and usurpation of real property, all centering on petitioners right to occupy the properties of the
decedent.
3
It also asserted that contrary to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing
abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio
Igsolo, who died in 1965,
4
and the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.
5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in
accordance with law. She pointed out that decedents signature did not appear on the second
page of the will, and the will was not properly acknowledged. These twin arguments are among
the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.
6
The
RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino
Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of a will x x x with the end in view of giving
the testator more freedom in expressing his last wishes;"
7
and from this perspective, rebutted
oppositors arguments that the will was not properly executed and attested to in accordance with
law.
After a careful examination of the will and consideration of the testimonies of the subscribing
and attesting witnesses, and having in mind the modern tendency in respect to the formalities in
the execution of a will, i.e., the liberalization of the interpretation of the law on the formal
requirements of a will with the end in view of giving the testator more freedom in expressing his
last wishes, this Court is persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after
the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng
Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa
amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng
kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in letters
placed on upper part of each page and that the attestation did not state the number of pages
thereof, it is worthy to note that the will is composed of only two pages. The first page contains
the entire text of the testamentary dispositions, and the second page contains the last portion of
the attestation clause and acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her
signature on the left margin of the second page, which contains only the last portion of the
attestation clause and acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will.
8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his
since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court
of Appeals reversed the trial court and ordered the dismissal of the petition for probate.
9
The
Court of Appeals noted that the attestation clause failed to state the number of pages used in
the will, thus rendering the will void and undeserving of probate.
10

Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of
pages used in a notarial will be stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the substantial compliance rule."
11

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which
we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other person to write
his name, under his express direction, in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with
the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation
clause to state the number of pages of the will. But an examination of the will itself reveals
several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.
12
There was an incomplete attempt to comply with this requisite, a space having been
allotted for the insertion of the number of pages in the attestation clause. Yet the blank was
never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca
13
and In re: Will of Andrada.
14
In Uy Coque, the Court noted that
among the defects of the will in question was the failure of the attestation clause to state the
number of pages contained in the will.
15
In ruling that the will could not be admitted to probate,
the Court made the following consideration which remains highly relevant to this day: "The
purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement of the total number of
sheets such removal might be effected by taking out the sheet and changing the numbers at the
top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in
the attestation clause the falsification of the document will involve the inserting of new pages
and the forging of the signatures of the testator and witnesses in the margin, a matter attended
with much greater difficulty."
16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state
the number of sheets or pages used. This consideration alone was sufficient for the Court to
declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."
17
It
was further observed that "it cannot be denied that the x x x requirement affords additional
security against the danger that the will may be tampered with; and as the Legislature has seen
fit to prescribe this requirement, it must be considered material."
18

Against these cited cases, petitioner cites Singson v. Florentino
19
and Taboada v. Hon.
Rosal,
20
wherein the Court allowed probate to the wills concerned therein despite the fact that
the attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does
not state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118
SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned appeal at bench. This is so because, in the case
of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the
subject Will did not state the number of pages used in the will, however, the same was found in
the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which
the will is written, which requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada,
42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30;
Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendiof
these cases seems to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it will have the effect
of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more liberal view
has been adopted to prevent the will of the testator from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in
the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the
fact that, in this case, it is discernible from the entire will that it is really and actually composed
of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the testamentary dispositions is signed by the
testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists
of two pages including this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part
of the Will. The will does not even contain any notarial acknowledgment wherein the number of
pages of the will should be stated.
21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.
22
Reliance on these cases remains apropos, considering
that the requirement that the attestation state the number of pages of the will is extant from
Section 618.
23
However, the enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the attestation clause is concerned,
that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code
states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their execution with the end in view of
giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with
the [modern tendency] in respect to the formalities in the execution of wills."
24
However,
petitioner conveniently omits the qualification offered by the Code Commission in the very same
paragraph he cites from their report, that such liberalization be "but with sufficient safeguards
and restrictions to prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator."
25

Caneda v. Court of Appeals
26
features an extensive discussion made by Justice Regalado,
speaking for the Court on the conflicting views on the manner of interpretation of the legal
formalities required in the execution of the attestation clause in wills.
27
Uy
Coque and Andrada are cited therein, along with several other cases, as examples of the
application of the rule of strict construction.
28
However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under Article
809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should
be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings.
29
(Emphasis
supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other,
30
the other omission cited by Justice
J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct
the allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself."
31
Thus, a failure by the attestation
clause to state that the testator signed every page can be liberally construed, since that
fact can be checked by a visual examination; while a failure by the attestation clause to
state that the witnesses signed in one anothers presence should be considered a fatal
flaw since the attestation is the only textual guarantee of compliance.
32

The failure of the attestation clause to state the number of pages on which the will was
written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages.
33
The failure to state the number of pages equates
with the absence of an averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as
was the situation in Singson and Taboada. However, in this case, there could have been
no substantial compliance with the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the
members of the Code Commission in incorporating Article 805, the fact remains that
they saw fit to prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial wills.
34
Compliance with these
requirements, however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey property post
mortem in the manner established in the will.
35
The transcendent legislative intent, even
as expressed in the cited comments of the Code Commission, is for the fruition of the
testators incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they
do not appear at the bottom of the attestation clause which after all consists of their
averments before the notary public.
Cagro v. Cagro
36
is material on this point. As in this case, "the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin."
37
While
three (3) Justices
38
considered the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear
at the bottom of the attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation
clause is "a memorandum of the facts attending the execution of the will" required by
law to be made by the attesting witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses, since
the omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-
hand margin conform substantially to the law and may be deemed as their signatures to
the attestation clause. This is untenable, because said signatures are in compliance
with the legal mandate that the will be signed on the left-hand margin of all its pages. If
an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses.
39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the will,
from the requisite that the will be "attested and subscribed by [the instrumental
witnesses]." The respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing forms part of the
will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses undertakings in the
clause, since the signatures that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such clause.
Without diminishing the value of the instrumental witnesses signatures on each and
every page, the fact must be noted that it is the attestation clause which contains the
utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number
of pages used upon which the will is written; the fact that the testator had signed the will
and every page thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof in the will that
the witnesses have stated these elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should
also hinge. The requirement under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses" has also not been complied
with. The importance of this requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805 and entrusted into a separate
provision, Article 806. The non-observance of Article 806 in this case is equally as
critical as the other cited flaws in compliance with Article 805, and should be treated as
of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan
ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."
40
By
no manner of contemplation can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going before some
competent officer or court and declaring it to be his act or deed.
41
It involves an extra
step undertaken whereby the signor actually declares to the notary that the executor of
a document has attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to
the usual language thereof. A jurat is that part of an affidavit where the notary certifies
that before him/her, the document was subscribed and sworn to by the
executor.
42
Ordinarily, the language of the jurat should avow that the document was
subscribed and sworn before the notary public, while in this case, the notary public
averred that he himself "signed and notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and swearing in of the executors
of the document, which in this case would involve the decedent and the instrumental
witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act.
43
The acknowledgment coerces the
testator and the instrumental witnesses to declare before an officer of the law that they
had executed and subscribed to the will as their own free act or deed. Such declaration
is under oath and under pain of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious wills, or those executed without the
free consent of the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions to those persons
he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under
Article 806. A notarial will that is not acknowledged before a notary public by the testator
and the witnesses is fatally defective, even if it is subscribed and sworn to before a
notary public.
There are two other requirements under Article 805 which were not fully satisfied by the
will in question. We need not discuss them at length, as they are no longer material to
the
disposition of this case. The provision requires that the testator and the instrumental
witnesses sign each and every page of the will on the left margin, except the last; and
that all the pages shall be numbered correlatively in letters placed on the upper part of
each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-called "logical end"
44
of
the will on its first page. Also, the will itself is not numbered correlatively in letters on
each page, but instead numbered with Arabic numerals. There is a line of thought that
has disabused the notion that these two requirements be construed as
mandatory.
45
Taken in isolation, these omissions, by themselves, may not be sufficient
to deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they may be of
a general lack of due regard for the requirements under Article 805 by whoever
executed the will.
All told, the string of mortal defects which the will in question suffers from makes the
probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED

MANUEL L. LEE, A.C. No. 5281
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.

ATTY. REGINO B. TAMBAGO,
Respondent. Promulgated:
February 12, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

R E S O L U T I O N
CORONA, J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the
ethics of the legal profession for notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the decedent Vicente Lee,
Sr., never executed the contested will. Furthermore, the spurious will contained the
forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses
to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his wife
Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and
Elena Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent on June
30, 1965.
[1]
Complainant, however, pointed out that the residence certificate
[2]
of
the testator noted in the acknowledgment of the will was dated January 5,
1962.
[3]
Furthermore, the signature of the testator was not the same as his signature
as donor in a deed of donation
[4]
(containing his purported genuine signature).
Complainant averred that the signatures of his deceased father in the will and in the
deed of donation were in any way (sic) entirely and diametrically opposed from
(sic) one another in all angle[s].
[5]


Complainant also questioned the absence of notation of the residence certificates of
the purported witnesses Noynay and Grajo. He alleged that their signatures had
likewise been forged and merely copied from their respective voters affidavits.

Complainant further asserted that no copy of such purported will was on file in the
archives division of the Records Management and Archives Office of the National
Commission for Culture and the Arts (NCCA). In this connection, the certification
of the chief of the archives division dated September 19, 1999 stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed
by BARTOLOME RAMIREZ on June 30, 1965 and is available in this Office[s]
files.
[6]



Respondent in his comment dated July 6, 2001 claimed that the complaint against
him contained false allegations: (1) that complainant was a son of the decedent
Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged
that complainant was not a legitimate son of Vicente Lee, Sr. and the last will and
testament was validly executed and actually notarized by respondent per
affidavit
[7]
of Gloria Nebato, common-law wife of Vicente Lee, Sr. and
corroborated by the joint affidavit
[8]
of the children of Vicente Lee, Sr., namely
Elena N. Lee and Vicente N. Lee, Jr. xxx.
[9]


Respondent further stated that the complaint was filed simply to harass him
because the criminal case filed by complainant against him in the Office of the
Ombudsman did not prosper.

Respondent did not dispute complainants contention that no copy of the will was
on file in the archives division of the NCCA. He claimed that no copy of the
contested will could be found there because none was filed.

Lastly, respondent pointed out that complainant had no valid cause of action
against him as he (complainant) did not first file an action for the declaration of
nullity of the will and demand his share in the inheritance.

In a resolution dated October 17, 2001, the Court referred the case to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation.
[10]


In his report, the investigating commissioner found respondent guilty of
violation of pertinent provisions of the old Notarial Law as found in the Revised
Administrative Code. The violation constituted an infringement of legal ethics,
particularly Canon 1
[11]
and Rule 1.01
[12]
of the Code of Professional Responsibility
(CPR).
[13]
Thus, the investigating commissioner of the IBP Commission on Bar
Discipline recommended the suspension of respondent for a period of three
months.

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with
modification, the Report and Recommendation of the Investigating Commissioner of
the above-entitled case, herein made part of this Resolution as Annex A; and,
finding the recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering Respondents failure to comply with the
laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is
hereby suspended from the practice of law for one year and Respondents notarial
commission is Revoked and Disqualified from reappointment as Notary Public for
two (2) years.
[14]



We affirm with modification.

A will is an act whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate, to take effect after
his death.
[15]
A will may either be notarial or holographic.

The law provides for certain formalities that must be followed in the execution of
wills. The object of solemnities surrounding the execution of wills is to close the
door on bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity.
[16]


A notarial will, as the contested will in this case, is required by law to be
subscribed at the end thereof by the testator himself. In addition, it should be
attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another.
[17]


The will in question was attested by only two witnesses, Noynay and Grajo. On
this circumstance alone, the will must be considered void.
[18]
This is in consonance
with the rule that acts executed against the provisions of mandatory or prohibitory
laws shall be void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a notary
public by the testator and the witnesses.
[19]
The importance of this requirement is
highlighted by the fact that it was segregated from the other requirements under
Article 805 and embodied in a distinct and separate provision.
[20]


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.
[21]
The acknowledgment in
a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long
after his demise and (2) to assure that his estate is administered in the manner that
he intends it to be done.

A cursory examination of the acknowledgment of the will in question shows that
this particular requirement was neither strictly nor substantially complied with. For
one, there was the conspicuous absence of a notation of the residence certificates
of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the
notation of the testators old residence certificate in the same acknowledgment was
a clear breach of the law. These omissions by respondent invalidated the will.

As the acknowledging officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. As we held
inSantiago v. Rafanan:
[22]


The Notarial Law is explicit on the obligations and duties of notaries public. They are
required to certify that the party to every document acknowledged before him had
presented the proper residence certificate (or exemption from the residence tax); and
to enter its number, place of issue and date as part of such certification.


These formalities are mandatory and cannot be disregarded, considering the degree
of importance and evidentiary weight attached to notarized documents.
[23]
A notary
public, especially a lawyer,
[24]
is bound to strictly observe these elementary
requirements.

The Notarial Law then in force required the exhibition of the residence certificate
upon notarization of a document or instrument:

Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract,
deed, or other document acknowledged before a notary public shall have certified thereon that
the parties thereto have presented their proper [cedula] residence certificate or are exempt from
the [cedula] residence tax, and there shall be entered by the notary public as a part of such
certificate the number, place of issue, and date of each [cedula] residence certificate as
aforesaid.
[25]



The importance of such act was further reiterated by Section 6 of the Residence
Tax Act
[26]
which stated:

When a person liable to the taxes prescribed in this Act acknowledges any document before a
notary public xxx it shall be the duty of such person xxx with whom such transaction is had or
business done, to require the exhibition of the residence certificate showing payment of the
residence taxes by such person xxx.


In the issuance of a residence certificate, the law seeks to establish the true and
correct identity of the person to whom it is issued, as well as the payment of
residence taxes for the current year. By having allowed decedent to exhibit an
expired residence certificate, respondent failed to comply with the requirements of
both the old Notarial Law and the Residence Tax Act. As much could be said of
his failure to demand the exhibition of the residence certificates of Noynay and
Grajo.


On the issue of whether respondent was under the legal obligation to furnish a
copy of the notarized will to the archives division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the testator and
the witness. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (emphasis supplied)

Respondents failure, inadvertent or not, to file in the archives division a copy of
the notarized will was therefore not a cause for disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the necessary
entries pertaining to the will in his notarial register. The old Notarial Law required
the entry of the following matters in the notarial register, in chronological order:

1. nature of each instrument executed, sworn to, or acknowledged before him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the
instrument.
[27]



In an effort to prove that he had complied with the abovementioned rule,
respondent contended that he had crossed out a prior entry and entered instead the
will of the decedent. As proof, he presented a photocopy of his notarial register. To
reinforce his claim, he presented a photocopy of a certification
[28]
stating that the
archives division had no copy of the affidavit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is shown
that the original is unavailable. The proponent must first prove the existence and
cause of the unavailability of the original,
[29]
otherwise, the evidence presented will
not be admitted. Thus, the photocopy of respondents notarial register was not
admissible as evidence of the entry of the execution of the will because it failed to
comply with the requirements for the admissibility of secondary evidence.

In the same vein, respondents attempt to controvert the certification dated
September 21, 1999
[30]
must fail. Not only did he present a mere photocopy of the
certification dated March 15, 2000;
[31]
its contents did not squarely prove the fact
of entry of the contested will in his notarial register.

Notaries public must observe with utmost care
[32]
and utmost fidelity the basic
requirements in the performance of their duties, otherwise, the confidence of the
public in the integrity of notarized deeds will be undermined.
[33]


Defects in the observance of the solemnities prescribed by law render the entire
will invalid. This carelessness cannot be taken lightly in view of the importance
and delicate nature of a will, considering that the testator and the witnesses, as in
this case, are no longer alive to identify the instrument and to confirm its
contents.
[34]
Accordingly, respondent must be held accountable for his acts. The
validity of the will was seriously compromised as a consequence of his breach of
duty.
[35]


In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. The following derelictions of duty on the
part of a notary public shall, in the discretion of the proper judge of first instance, be
sufficient ground for the revocation of his commission:

xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his notarial
register touching his notarial acts in the manner required by law.

xxx xxx xxx


(f) The failure of the notary to make the proper notation regarding cedula
certificates.
[36]



These gross violations of the law also made respondent liable for violation of his
oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the
Rules of Court
[37]
and Canon 1
[38]
and Rule 1.01
[39]
of the CPR.


The first and foremost duty of a lawyer is to maintain allegiance to the Republic of
the Philippines, uphold the Constitution and obey the laws of the land.
[40]
For a
lawyer is the servant of the law and belongs to a profession to which society has
entrusted the administration of law and the dispensation of justice.
[41]


While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law, a lawyer should
moreover make himself an example for others to emulate.
[42]
Being a lawyer, he is
supposed to be a model in the community in so far as respect for the law is
concerned.
[43]


The practice of law is a privilege burdened with conditions.
[44]
A breach of these
conditions justifies disciplinary action against the erring lawyer. A disciplinary
sanction is imposed on a lawyer upon a finding or acknowledgment that he has
engaged in professional misconduct.
[45]
These sanctions meted out to errant
lawyers include disbarment, suspension and reprimand.

Disbarment is the most severe form of disciplinary sanction.
[46]
We have held in a
number of cases that the power to disbar must be exercised with great
caution
[47]
and should not be decreed if any punishment less severe such as
reprimand, suspension, or fine will accomplish the end desired.
[48]
The rule then
is that disbarment is meted out only in clear cases of misconduct that seriously
affect the standing and character of the lawyer as an officer of the court.
[49]


Respondent, as notary public, evidently failed in the performance of the elementary
duties of his office. Contrary to his claims that he exercised his duties as Notary
Public with due care and with due regard to the provision of existing law and had
complied with the elementary formalities in the performance of his duties xxx, we
find that he acted very irresponsibly in notarizing the will in question. Such
recklessness warrants the less severe punishment of suspension from the practice
of law. It is, as well, a sufficient basis for the revocation of his commission
[50]
and
his perpetual disqualification to be commissioned as a notary public.
[51]



WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the
Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional
Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old
Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one
year and his notarial commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as a notary public.

Let copies of this Resolution be furnished to all the courts of the land, the
Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as
made part of the personal records of respondent.

SO ORDERED

G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO
LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate
Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986
1
of the First Civil Cases
Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated
27 June 1983
2
of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament
3
with codicil
4
of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled
"Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time awaiting probate before
Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final draft of
the will himself. Instead, private respondent, as the lawyer who drafted the 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 the 29th day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in
the notarial will to generate cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read the
final draft of the codicil. Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental witnesses (same as those of the
notarial will) and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's
death on 3 January 1979 by private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan, Laguna.
5
Petitioner, in turn, filed an Opposition
on the following grounds: that the will sought to be probated was not executed and attested as required
by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was executed under duress, or influence of fear and
threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was
procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal was that the deceased was
blind within the meaning of the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading required by Art. 808 of the Civil
Code was admittedly not complied with, probate of the deceased's last will and codicil
should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the
following findings: that Brigido Alvarado was not blind at the time his last will and codicil
were executed; that assuming his blindness, the reading requirement of Art. 808 was
substantially complied with when both documents were read aloud to the testator with
each of the three instrumental witnesses and the notary public following the reading with
their respective copies of the instruments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there was substantial compliance since
its purpose of making known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of
Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the
double-reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado
was not totally blind at the time the will and codicil were executed. However, his vision
on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma
which he had been suffering from for several years and even prior to his first
consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a
"blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute),
6
the contents of which were interpreted in
layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent.
7
Dr. Roasa
explained that although the testator could visualize fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977, the day of his first consultation.
8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that
the testator could still read on the day the will and the codicil were executed but chose
not to do so because of "poor eyesight."
9
Since the testator was still capable of reading at that
time, the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his
"poor,"
10
"defective,"
11
or "blurred"
12
vision making it necessary for private respondent to do the actual
reading for him.
The following pronouncement in Garcia vs. Vasquez
13
provides an insight into the scope of the
term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with
his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to
those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that Brigido Alvarado comes within
the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer who drafted the will and
codicil did so confortably with his instructions. Hence, to consider his will as validly
executed and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read
twice; once, by one of the instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before signing and to give him an
opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and
an instrumental witness, it was the lawyer (private respondent) who drafted the eight-
paged will and the five-paged codicil who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner maintains
that the only valid compliance or compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness read the contents of the will and
codicil to Brigido, probate of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable
where the purpose of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible as to destroy the
testamentary privilege.
14

In the case at bar, private respondent read the testator's will and codicil aloud in the
presence of the testator, his three instrumental witnesses, and the notary public. Prior
and subsequent thereto, the testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and acknowledgement
take place. There is no evidence, and petitioner does not so allege, that the contents of
the will and codicil were not sufficiently made known and communicated to the testator.
On the contrary, with respect to the "Huling Habilin," the day of the execution was not
the first time that Brigido had affirmed the truth and authenticity of the contents of the
draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes even
prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for
the purpose of securing his conformity to the draft.
15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental
witnesses and the testator's physician) asked the testator whether the contents of the
document were of his own free will. Brigido answered in the affirmative.
16
With four
persons following the reading word for word with their own copies, it can be safely concluded that the
testator was reasonably assured that what was read to him (those which he affirmed were in accordance
with his instructions), were the terms actually appearing on the typewritten documents. This is especially
true when we consider the fact that the three instrumental witnesses were persons known to the testator,
one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since
childhood.
The spirit behind the law was served though the letter was not. Although there should
be strict compliance with the substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be brushed aside when they do
not affect its purpose and which, when taken into account, may only defeat the testator's
will.
17

As a final word to convince petitioner of the propriety of the trial court's Probate Order
and its affirmance by the Court of Appeals, we quote the following pronouncement
in Abangan v. Abangan,
18
to wit:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's will, must
be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his
"Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside
fro the mere reason that a legal requirement intended for his protection was not followed
strictly when such compliance had been rendered unnecessary by the fact that the
purpose of the law, i.e., to make known to the incapacitated testator the contents of the
draft of his will, had already been accomplished. To reiterate, substantial compliance
suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of
Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case
has remained pending, this decision is immediately executory. Costs against petitioner.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

LETICIA VALMONTE ORTEGA, G.R. No. 157451
Petitioner,
Present:

Panganiban, J.,
Chairman,
- versus - Sandoval-Gutierrez,
Corona,
Carpio Morales,
and Garcia, JJ

JOSEFINA C. VALMONTE, Promulgated:
Respondent.
December 16, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x


DECISION


PANGANIBAN, J.:


he law favors the probate of a will. Upon those who oppose it
rests the burden of showing why it should not be allowed. In the
present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed
the probate of the will.
T
The Case

Before the Court is a Petition for Review
[1]
under Rule 45 of the Rules of
Court, seeking to reverse and set aside the December 12, 2002
Decision
[2]
and the March 7, 2003 Resolution
[3]
of the Court of Appeals
(CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:

WHEREFORE, the appeal is GRANTED, and the Decision appealed from
is REVERSED and SET ASIDE. In its place judgment is rendered approving and
allowing probate to the said last will and testament of Placido Valmonte and
ordering the issuance of letters testamentary to the petitioner Josefina Valmonte.
Let this case be remanded to the court a quo for further and concomitant
proceedings.
[4]




The assailed Resolution denied petitioners Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

x x x: Like so many others before him, 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 the house and lot located at
#9200 Catmon St., San Antonio Village, Makati, which he owned in common with
his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years
after his arrival from the United States and at the age of 80 he wed Josefina who
was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr.
on February 5, 1982. But in a little more than two years of wedded bliss, Placido
died on October 8, 1984 of a cause written down as COR PULMONALE.

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 15
th
day of June 1983 in
Quezon City, Philippines.


The allowance to probate of this will was opposed by Leticia on the grounds
that:

1. Petitioner failed to allege all assets of the testator, especially those found in
the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs of
the testator; or to give them proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal solemnities and
formalities were not complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution
he being in an advance sate of senility;

5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the
instrument should be his will at the time of affixing his signature thereto;


and she also opposed the appointment as Executrix of Josefina alleging her want
of understanding and integrity.

At the hearing, the petitioner Josefina testified and called as witnesses the
notary public Atty. Floro Sarmiento who prepared and notarized the will, and the
instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and
Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary
Jane Ortega testified.

According to Josefina after her marriage with the testator they lived in her
parents house at Salingcob, Bacnotan, La Union but they came to Manila every
month to get his $366.00 monthly pension and stayed at the said Makati
residence. There were times though when to shave off on expenses, the testator
would travel alone. And it was in one of his travels by his lonesome self when
the notarial will was made. The will was witnessed by the spouses Eugenio and
Feliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefina
said 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. It
was only then that she learned that the testator bequeathed to her his properties
and she was named the executrix in the said will. To her estimate, the value of
property both real and personal left by the testator is worth more or less
P100,000.00. 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.

Notary Public Floro Sarmiento, the notary public who notarized the testators
will, testified that it was in the first week of June 1983 when the testator together
with the three witnesses of the will went to his house cum law office and
requested him to prepare his last will and testament. After the testator instructed
him on the terms and dispositions he wanted on the will, the notary public told
them to come back on June 15, 1983 to give him time to prepare it. After he had
prepared the will the notary public kept it safely hidden and locked in his drawer.
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
August 9, 1983, and which they did. Before the testator and his witnesses
signed the prepared will, the notary public explained to them each and every
term thereof in Ilocano, a dialect which the testator spoke and understood. He
likewise explained 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. 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.

The attesting witnesses to the will corroborated the testimony of the notary
public, and testified that the testator went alone to the house of spouses Eugenio
and Feliza Gomez at GSIS Village, Quezon City and requested them to
accompany him to the house of Atty. Floro Sarmiento purposely for his intended
will; that after giving his instructions to Atty. Floro Sarmiento, they were told to
return on June 15, 1983; that they returned on June 15, 1983 for the execution of
the will but were asked to come back instead on August 9, 1983 because of the
absence of the notary public; that the testator executed the will in question in
their presence while he was of sound and disposing mind and that he was strong
and in good health; that the contents of the will was explained by the notary
public in the Ilocano and Tagalog dialect and that all of them as witnesses
attested and signed the will in the presence of the testator and of each other.
And that during the execution, the testators wife, Josefina was not with them.

The oppositor 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. She knew whereof she
spoke because in 1983 Placido lived in the Makati residence and asked Leticias
family to live with him and they took care of him. During that time, the testators
physical and mental condition showed deterioration, aberrations and senility.
This was corroborated by her daughter Mary Jane Ortega for whom Placido took
a fancy and wanted to marry.

Sifting through the evidence, the court a quo held that [t]he evidence adduced,
reduces the opposition to two grounds, namely:

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

It then found these grounds extant and proven, and accordingly
disallowed probate.
[5]





Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of the notary
public and the subscribing witnesses who had acknowledged the due
execution of the will. Moreover, it held that the testator had testamentary
capacity at the time of the execution of the will. It added that his sexual
exhibitionism and unhygienic, crude and impolite ways
[6]
did not make
him a person of unsound mind.

Hence, this Petition.
[7]



Issues

Petitioner raises the following issues for our consideration:

I.

Whether or not the findings of the probate court are entitled to great respect.

II.

Whether or not 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.

III.

Whether or not Placido Valmonte has testamentary capacity at the time he
allegedly executed the subject will.
[8]




In short, petitioner assails the CAs allowance of the probate of the will of
Placido Valmonte.

This Courts Ruling

The Petition has no merit.


Main Issue:
Probate of a Will

At the outset, we stress that only questions of law may be raised in a
Petition for Review under Section 1 of Rule 45 of the Rules of Court. As
an exception, however, the evidence presented during the trial may be
examined and the factual matters resolved by this Court when, as in the
instant case, the findings of fact of the appellate court differ from those of
the trial court.
[9]


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.
[10]
Verily, Article 839 of the Civil Code states the instances when a
will may be disallowed, as follows:
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.

In the present case, petitioner assails the validity of Placido
Valmontes will by imputing fraud in its execution and challenging the
testators state of mind at the time.


Existence of Fraud in the
Execution of a Will

Petitioner does not dispute the due observance of the formalities in
the execution of the will, but maintains that the circumstances surrounding
it are indicative of the existence of fraud. Particularly, she alleges that
respondent, who is the testators wife and sole beneficiary, conspired with
the notary public and the three 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.

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,
[11]
thus casting doubt on the intention of respondent in
seeking the probate of the will. Moreover, it supposedly defies human
reason, logic and common experience
[12]
for an old man with a severe
psychological condition to have willingly signed a last will and testament.

We are not convinced. 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.
[13]


We stress that the party challenging the will bears the burden of proving
the existence of fraud at the time of its execution.
[14]
The burden to show
otherwise shifts to the proponent of the will only upon a showing of
credible evidence of fraud.
[15]
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.
[16]
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.
[17]


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.
[18]
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.
[19]
Furthermore, the testator and the witnesses must acknowledge
the will before a notary public.
[20]
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.
[21]


The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted
by the CA -- are reproduced respectively as follows:

Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the
testator and his witnesses were supposed to be in your office?
A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?
A They did as of agreement but unfortunately, I was out of town.

x x x x x x x x x

Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when the
document was acknowledged?
A Yes sir.

Q What about the date when the testator and the three witnesses affixed their
respective signature on the first and second pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.

Q Why did you not make the necessary correction on the date appearing on
the body of the document as well as the attestation clause?
A Because I do not like anymore to make some alterations so I put it in my
own handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985,
pp. 8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983,
whereas in the acknowledgement it is dated August 9, 1983, will you look at this
document and tell us this discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the two
witnesses; that was first week of June and Atty. Sarmiento told us to return on
the 15
th
of June but when we returned, Atty. Sarmiento was not there.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go
back?
A We returned on the 9
th
of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were
your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985,
pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

x x x x x x x x x

A The reason why we went there three times is that, the first week of June
was out first time. We went there to talk to Atty. Sarmiento and Placido Valmonte
about the last will and testament. After that what they have talked what will be
placed in the testament, what Atty. Sarmiento said was that he will go back on
the 15
th
of June. When we returned on June 15, Atty. Sarmiento was not there
so we were not able to sign it, the will. That is why, for the third time we went
there on August 9 and that was the time we affixed our signature. (tsn, October
13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what
transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.

Q For what purpose?
A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)
[22]


Notably, 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.
[23]
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.
[24]



Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil
Code gives the following guidelines:

Article 798. In order to make a will it is essential that the testator be of sound
mind at the time of its execution.

Article 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or shattered by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know
the nature of the estate to be disposed of, the proper objects of his bounty, and
the character of the testamentary act.

Article 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the will; but
if the testator, one month, or less, before making his will was publicly known to
be insane, the person who maintains the validity of the will must prove that the
testator made it during a lucid interval.


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
testators 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.
Worth reiterating in determining soundness of mind is Alsua-Betts v.
CA,
[25]
which held thus:

"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."
[26]



WHEREFORE, the Petition is DENIED, and the assailed Decision and
Resolution of the Court of Appeals are AFFIRMED. Costs against
petitioner.


Guerrero vs BihisG.R. No. 174144 April 17, 2007Facts:
Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero andrespondent
Resurreccion A. Bihis, died. Guerrero filed for probate in the RTCQC. Respondent Bihis
opposed her elder sisters petition on the following
grounds: the will was not executed and attested as required by law; itsattestation clause
and acknowledgment did not comply with the requirementsof the law; the signature of
the testatrix was procured by fraud and petitioner and her children procured the will
through undue and improper pressure andinfluence. 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 bythe
testatrix and the witnesses at the testatrixs residence at No. 40 Kanlaon
Street, Quezon City before Atty. Macario O. Directo who was a commissionednotary
public for and in Caloocan City.
ISSUE:

Did the will acknowledged by the testatrix and t
he instrumental witnessesbefore a notary public acting outside the place of his
commission satisfy therequirement 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 thetestator and the
witnesses. This formal requirement is one of theindispensable requisites for the validity
of a will. In other words, a notarial willthat is not acknowledged before a notary public by
the testator and theinstrumental 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 theprovince.
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 notarialact beyond the limits of his
jurisdiction.Sine Atty. Directo was not a commissioned notary public for and in
QuezonCity, he lacked the authority to take the acknowledgment of the testratix andthe
instrumental witnesses. In the same vain, the testratix and theinstrumental witnesses
could not have validly acknowledged the will beforehim. Thus, Felisa Tamio de Bu
enaventuras last will and testament was, in
effect, not acknowledged as required by law

G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND
BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the
probate of the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de
Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the
brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he delivered to the lower
court a document purporting to be the holographic Will of the deceased Bibiana Roxas
de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he
found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21,
22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61 " and states: "This is my win which I want to be respected although it is
not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas
de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated
"FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both
recognized the handwriting of their mother and positively Identified her signature. They
further testified that their deceased mother understood English, the language in which
the holographic Will is written, and that the date "FEB./61 " was the date when said Will
was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"
assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix
acted by mistake and/or did not intend, nor could have intended the said Will to be her
last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia
that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that the law requires that the
Will should contain the day, month and year of its execution and that this should be
strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the
order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de
Jesus, is hereby disallowed for not having been executed as required by the law. The
order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will
of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of
the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688
of the Old Civil Code require the testator to state in his holographic Win the "year,
month, and day of its execution," the present Civil Code omitted the phrase Ao mes y
dia and simply requires that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will
is void for non-compliance with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The respondent contends that Article
810 of the Civil Code was patterned after Section 1277 of the California Code and
Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that
the required date includes the year, month, and day, and that if any of these is wanting,
the holographic Will is invalid. The respondent further contends that the petitioner
cannot plead liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of holographic Wills are
strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of
the statutory requirements regarding the due execution of Wills. We should not overlook
the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of
which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of the law on
wigs in this Project consists in the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in expressing his last wishes, but with
sufficien safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the formalities in
the execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27
SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that
which the law can make. For this reason, intestate succession is nothing more than a
disposition based upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed
in substantial compliance with the formalities of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated, said Win should be admitted to probate
(Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be considered
in the application of any given rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination should, in the absence of
any suggestion of bad faith, forgery or fraud, lean towards its admission to probate,
although the document may suffer from some imperfection of language, or other non-
essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded
by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. ...
In particular, a complete date is required to provide against such contingencies as that
of two competing Wills executed on the same day, or of a testator becoming insane on
the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith
and fraud in its execution nor was there any substitution of Wins and Testaments. There
is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the testatrix herself and in a language known to
her. There is also no question as to its genuineness and due execution. All the children
of the testatrix agree on the genuineness of the holographic Will of their mother and that
she had the testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that the holographic
Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is
not sufficient compliance with Article 810 of the Civil Code. This objection is too
technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order allowing the probate of the holographic Will
of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.

G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO
LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-
appellants,
vs.
COURT OF APPEALS,
1
GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-
appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.

PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one Melecio
Labrador is dated, as provided for in Article 810
2
of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador
died in the Municipality of Iba, province of Zambales, where he was residing, leaving
behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title
No. P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus,
Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a
holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs),
Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the
probate docketed as Special Proceeding No. 922-I of the alleged holographic will of the
late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted
by his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground
that the will has been extinguished or revoked by implication of law, alleging therein that
on September 30, 1971, that is, before Melecio's death, for the consideration of Six
Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916
and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-
21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for
only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and
Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land
which Sagrado allegedly had already acquired by devise from their father Melecio
Labrador under a holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the fact that the
aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court
rendered a joint decision dated February 28, 1985, allowing the probate of the
holographic will and declaring null and void the Deed of Absolute sale. The court a
quo had also directed the respondents (the defendants in Civil Case No. 934-I) to
reimburse to the petitioners the sum of P5,000.00 representing the redemption price for
the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from
December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10,
1988 modified said joint decision of the court a quo by denying the allowance of the
probate of the will for being undated and reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the
Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE
PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO
LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted
as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known
place as Tagale.
And this place that is given as the share to him, there is a measurement of more or less
one hectare, and the boundary at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known
as the SEA as it is, and the boundary on the NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right time for me to
partition the fishponds which were and had been bought or acquired by us, meaning
with their two mothers, hence there shall be no differences among themselves, those
among brothers and sisters, for it is I myself their father who am making the
apportionment and delivering to each and everyone of them the said portion and
assignment so that there shall not be any cause of troubles or differences among the
brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month of
March, 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no other than MELECIO
LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled
and nothing will happen along these troubles among my children, and that they will be in
good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut
trees and all others like the other kind of bamboo by name of Bayog, it is their right to
get if they so need, in order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be
equal portion of each share among themselves, and or to be benefitted with all those
property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I
am signing my signature below hereof, and that this is what should be complied with, by
all the brothers and sisters, the children of their two mothers JULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although
the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with
Article 810. It is worthy of note to quote the first paragraph of the second page of the
holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month
of March, 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no other than MELECIO
LABRADOR, their father. (emphasis supplied) (p. 46,Rollo)
The law does not specify a particular location where the date should be placed in the
will. The only requirements are that the date be in the will itself and executed in the
hand of the testator. These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and
his beneficiaries entered into an agreement among themselves about "the partitioning
and assigning the respective assignments of the said fishpond," and was not the date of
execution of the holographic will; hence, the will is more of an "agreement" between the
testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with Article 783 which defines a will as
"an act whereby a person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of the
execution of the will is plain from the tenor of the succeeding words of the paragraph.
As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio
Labrador who plainly knew that what he was executing was a will. The act of partitioning
and the declaration that such partitioning as the testator's instruction or decision to be
followed reveal that Melecio Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the testamentary act as a means to
control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the
redemption price as erroneous, respondent court's conclusion is incorrect. When private
respondents sold the property (fishpond) with right to repurchase to Navat for P5,000,
they were actually selling property belonging to another and which they had no authority
to sell, rendering such sale null and void. Petitioners, thus "redeemed" the property from
Navat for P5,000, to immediately regain possession of the property for its disposition in
accordance with the will. Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988
is hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and
ALLOWED probate. The private respondents are directed to REIMBURSE the
petitioners the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.
BONILLA deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination
pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal
for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed
by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias
and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule 75,
section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it was
not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509;
and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike
ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of
February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of
more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellant's petition is contrary to
law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that
the appeal does not involve question of fact and alleged that the trial court committed
the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found
can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the court after its due
execution has been proved. The probate may be uncontested or not. If uncontested, at
least one Identifying witness is required and, if no witness is available, experts may be
resorted to. If contested, at least three Identifying witnesses are required. However, if
the holographic will has been lost or destroyed and no other copy is available, the will
can not be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a photostatic copy
or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have seen and/or read
such will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the
probate court," Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting of the
deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's
motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.

EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA PATIGAS, respondents.
D E C I S I O N
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals
[1]
and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the authenticity of testators holographic will has
been established and the handwriting and signature therein (exhibit S) are
hers, enough to probate said will. Reversal of the judgment

appealed from
and the probate of the holographic will in question be called for. The rule is
that after plaintiff has completed presentation of his evidence and the
defendant files a motion for judgment on demurrer to evidence on the ground
that upon the facts and the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf (Sec. 1 Rule 35
Revised Rules of Court). Judgment may, therefore, be rendered for appellant
in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered
allowing the probate of the holographic will of the testator Matilde Seo Vda.
de Ramonal.
[2]

The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a
petition
[3]
for probate of the holographic will of the deceased, who died on January 16,
1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal,
was of sound and disposing mind when she executed the will on August 30, 1978, that
there was no fraud, undue influence, and duress employed in the person of the testator,
and the will was written voluntarily.
The assessed value of the decedents property, including all real and personal property
was about P400,000.00, at the time of her death.
[4]

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition
[5]
to the petition for probate, alleging that the holographic will was a forgery
and that the same is even illegible. This gives an impression that a third hand of an
interested party other than the true hand of Matilde Seo Vda. de Ramonal executed
the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on the will after
every disposition is out of the ordinary. If the deceased was the one who executed the
will, and was not forced, the dates and the signature should appear at the bottom after
the dispositions, as regularly done and not after every disposition. And assuming that
the holographic will is in the handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries, or through fraud and
trickery.
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a demurrer
[6]
to
evidence, claiming that respondents failed to establish sufficient factual and legal basis
for the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for
probate of the document (Exhibit S) on the purported Holographic Will of the
late Matilde Seo Vda. de Ramonal, is denied for insufficiency of evidence
and lack of merits.
[7]

On December 12, 1990, respondents filed a notice of appeal,
[8]
and in support of their
appeal, the respondents once again reiterated the testimony of the following witnesses,
namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4)
Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account
of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the
special proceedings for the probate of the holographic will of the deceased was
filed. He produced and identified the. records of the case. The documents presented
bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of
laying the basis for comparison of the handwriting of the testatrix, with the writing
treated or admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and
identify the voters affidavit of the decedent. However, the voters affidavit was not
produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal
was her aunt, and that after the death of Matildes husband, the latter lived with her in
her parents house for eleven (11) years, from 1958 to 1969. During those eleven (11)
years of close association with the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde Seo Vda. de
Ramonal) in collecting rentals from her various tenants of commercial buildings, and the
deceased always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried personal
letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda.
de Ramonal, she left a holographic will dated August 30, 1978, which was personally
and entirely written, dated and signed, by the deceased and that all the dispositions
therein, the dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de
Oro, he was a practicing lawyer, and handled all the pleadings and documents signed
by the deceased in connection with the intestate proceedings of her late husband, as a
result of which he is familiar with the handwriting of the latter. He testified that the
signature appearing in the holographic will was similar to that of the deceased, Matilde
Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the
application of the deceased for pasture permit and was familiar with the signature of the
deceased, since the deceased signed documents in her presence, when the latter was
applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long period of
time she became familiar with the signature of the deceased. She testified that the
signature appearing in the holographic will is the true and genuine signature of Matilde
Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd)Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline
R. Calugay
(Sgd) Matilde Vda de Ramonal
"August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of
Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no
longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision
[9]
ruling that the appeal
was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of
Appeals held:
x x x even if the genuineness of the holographic will were contested, we are
of the opinion that Article 811 of our present civil code can not be interpreted
as to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied. Since
no witness may have been present at the execution of the holographic will,
none being required by law (art. 810, new civil code), it becomes obvious that
the existence of witnesses possessing the requisite qualifications is a matter
beyond the control of the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be witnesses who know the
handwriting and signature of the testator and who can declare (truthfully, of
course, even if the law does not express) that the will and the signature are in
the handwriting of the testator. There may be no available witness acquainted
with the testators hand; or even if so familiarized, the witness may be
unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of
article 811 may thus become an impossibility. That is evidently the reason
why the second paragraph of article 811 prescribes that
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to.
As can be seen, the law foresees the possibility that no qualified witness may
be found (or what amounts to the same thing, that no competent witness may
be willing to testify to the authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (CF Cabang vs.
Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not
be ignored that the requirement can be considered mandatory only in case of
ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present
(art.10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Art.811, the resort to expert evidence is conditioned by the
words if the court deem it necessary, which reveal that what the law deems
essential is that the court should be convinced of the wills
authenticity. Where the prescribed number of witnesses is produced and the
court is convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the court may
still, and in fact it should resort to handwriting experts. The duty of the court,
in fine, is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be carried
into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic
will were contested, Article 811 of the civil code cannot be interpreted as to
require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of the having the probate
denied. No witness need be present in the execution of the holographic
will. And the rule requiring the production of three witnesses is merely
permissive. What the law deems essential is that the court is convinced of the
authenticity of the will. Its duty is to exhaust all available lines of inquiry, for
the state is as much interested in the proponent that the true intention of the
testator be carried into effect. And because the law leaves it to the trial court
to decide if experts are still needed, no unfavorable inference can be drawn
from a partys failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.
[10]

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and
other witnesses definitely and in no uncertain terms testified that the handwriting and
signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the
respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been able
to present credible evidence to prove that the date, text, and signature on the holographic will
were written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic
will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code
are permissive or mandatory. The article provides, as a requirement for the probate of
a contested holographic will, that at least three witnesses explicitly declare that the
signature in the will is the genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word shall connotes a mandatory order. We have ruled that shall in
a statute commonly denotes an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word shall, when used in a statute is
mandatory.
[11]

Laws are enacted to achieve a goal intended and to guide against an evil or mischief
that aims to prevent. In the case at bar, the goal to achieve is to give effect to the
wishes of the deceased and the evil to be prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine
the true intent of the deceased. An exhaustive and objective consideration of the
evidence is imperative to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly
that they were familiar with the handwriting of the testator. In the case of Augusto Neri,
clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record
of Special Proceedings No. 427 before said court. He was not presented to declare
explicitly that the signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to
identify the signature of the deceased in the voters affidavit, which was not even
produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets.
[12]

x x x
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?
A. Yes, sir.
[13]

x x x
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as
one of the receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is a signature of Matilde vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept
records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.
[14]

x x x
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale
which you said what else did you do to acquire familiarity of the signature of Matilde Vda De
Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde
Q. To whom?
A. To her creditors.
[15]

x x x
Q. You testified that at the time of her death she left a will. I am showing to you a document
with its title tugon is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit S, there is that handwritten tugon, whose handwriting is this?
A. My aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.
[16]

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which
she either mailed or gave to her tenants. She did not declare that she saw the
deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that
the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno
vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mothers possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the
possession of your mother?
A. 1985.
[17]

x x x
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and
therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.
[18]

In her testimony it was also evident that Ms. Binanay kept the fact about the will from
petitioners, the legally adopted children of the deceased. Such actions put in issue her
motive of keeping the will a secret to petitioners and revealing it only after the death of
Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely and she could go to
her building to collect rentals, is that correct?
A. Yes, sir.
[19]

x x x
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.
[20]

x x x
Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you
identified a document marked as Exhibit R. This is dated January 8,1978 which is only about
eight months from August 30,1978. Do you notice that the signature Matilde Vda de Ramonal is
beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly
and she was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and you just tried to
explain yourself out because of the apparent inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and
the signature was written on a fluid movement. x x x And in fact , the name Eufemia R. Patigas
here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing
in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you
will notice the hesitancy and tremors, do you notice that?
A. Yes, sir.
[21]

Evangeline Calugay declared that the holographic will was written, dated and signed in
the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for
the period of 22 years. Could you tell the court the services if any which you rendered to
Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and then to her
transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of
Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.
[22]

x x x
Q. Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30, 1978 there
is a signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.
[23]

So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I
am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.
[24]

x x x
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
legitimate children?
A. As far as I know they have no legitimate children.
[25]

x x x
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is
that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court
before.
[26]

x x x
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as
exhibit N of the estate of Justo Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.
[27]

x x x
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the
other assistance wherein you were rendering professional service to the deceased Matilde Vda
de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to
show that I have assisted then I can recall.
[28]

x x x
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over this document,
Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit S?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the
court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.
[29]

x x x
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely
supposing that it seems to be her signature because it is similar to the signature of the project of
partition which you have made?
A. That is true.
[30]

From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson,
[31]
ruling that the requirement
is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,
[32]
we said that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as
to attain these primordial ends. But, on the other hand, also one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the exercise of the right
to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the
will of the testator, which is why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of
Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five
years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of
the deceased with other documents signed and executed by her during her
lifetime. The only chance at comparison was during the cross-examination of Ms.
Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents
which contained the signature of the deceased with that of the holographic will and she
is not a handwriting expert. Even the former lawyer of the deceased expressed doubts
as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different
when compared with other documents written by the testator. The signature of the
testator in some of the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,
[33]
and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980,
[34]
and a letter dated June 16, 1978,
[35]
the strokes are different. In
the letters, there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain
that the holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
No costs.
SO ORDERED.
Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals
1
in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94,
2
in Sp. Proc.
No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who
died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence, and was
in every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's
body nor the signature therein was in decedent's handwriting; it contained alterations
and corrections which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will
to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the will for its failure to
comply with the formalities prescribed by law nor for lack of testamentary capacity of the
testatrix.
For one, no evidence was presented to show that the will in question is different from
the will actually executed by the testatrix. The only objections raised by the oppositors .
. . are that the will was not written in the handwriting of the testatrix which properly
refers to the question of its due execution, and not to the question of identity of will. No
other will was alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the will presented
for probate must be accepted, i.e., the will submitted in Court must be deemed to be the
will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court
that the holographic will in question was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have convincingly shown
knowledge of the handwriting of the testatrix have been presented and have explicitly
and categorically identified the handwriting with which the holographic will in question
was written to be the genuine handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the holographic will be entirely
written, dated and signed in the handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private respondent)
Clemente Sand himself has testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday celebration in 1981, at or around
which time the holographic will in question was executed by the testatrix. To be of
sound mind, it is sufficient that the testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the proper object of her bounty, and
thecharacter of the testamentary act . . . The will itself shows that the testatrix even had
detailed knowledge of the nature of her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The objects of her bounty were
likewise identified explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there is more than
sufficient showing that she knows the character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of
herein holographic will. While it was alleged that the said will was procured by undue
and improper pressure and influence on the part of the beneficiary or of some other
person, the evidence adduced have not shown any instance where improper pressure
or influence was exerted on the testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time of the execution of the will, i.e., at or
around the time of her birth anniversary celebration in 1981. It was also established that
she is a very intelligent person and has a mind of her own. Her independence of
character and to some extent, her sense of superiority, which has been testified to in
Court, all show the unlikelihood of her being unduly influenced or improperly pressured
to make the aforesaid will. It must be noted that the undue influence or improper
pressure in question herein only refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of another proceeding.
Hence, under the circumstances, this Court cannot find convincing reason for the
disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on succession that in
case of doubt, testate succession should be preferred over intestate succession, and
the fact that no convincing grounds were presented and proven for the disallowance of
the holographic will of the late Annie Sand, the aforesaid will submitted herein must be
admitted to probate.
3
(Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will
was dismissed. The Court of Appeals found that, "the holographic will fails to meet the
requirements for its validity."
4
It held that the decedent did not comply with Articles 813 and 814 of
the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of
the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time
of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend
that the instrument should be his will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 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.
These lists are exclusive; no other grounds can serve to disallow a will.
5
Thus, in a petition
to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its
signing were the voluntary acts of the decedent.
6

In the case at bench, respondent court held that the holographic will of Anne Sand was
not executed in accordance with the formalities prescribed by law. It held that Articles
813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed
the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806
of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself,
7
as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-
compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132
SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined. Manresa gave an identical commentary when he said "la
omission de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985."
8
(Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on
the date of the holographic will or on testator's signature,
9
their presence does not invalidate
the will itself.
10
The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing
and dating of dispositions appear in provisions (Articles 813 and 814) separate from that
which provides for the necessary conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. They
read as follows:
Art. 678: A will is called holographic when the testator writes it himself in the form and
with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to the
year of its execution, written in its entirety by the testator and signed by him, and must
contain a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must identify
them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code and not those found in Articles 813
and 814 of the same Code are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of
the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is
correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will.
11
In the case at bench, decedent herself indubitably stated in her
holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led
oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held
by respondent court, she cannot validly dispose of the whole property, which she shares with her father's
other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon
City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

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