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G.R. No. L-4067, In re Will of Mercado. Garcia v. Lacuesta et al.

, 90
Phil. 489
Republic of the Philippines
SUPREME COURT Manila
EN BANC
November 29, 1951

G.R. No. L-4067


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. 42258, In re Will of Tolentino. Payad v. Tolentino


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

January 15, 1936

G.R. No. 42258


In re Will of the deceased Leoncia Tolentino.
VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.

Leodegario Azarraga for oppositor-appellant.

GODDARD, J.:

Both parties in this case appeal from an order of the trial court denying the
probate of the alleged will of Leoncia Tolentino, deceased. That court found
that the will in question was executed by the deceased on the date appearing
thereon, September 7, 1933, one day before the death of the testatrix,
contrary to the contention of the oppositor that it was executed after her
death. The court, however, denied probate on the ground that the attestation
clause was not in conformity with the requirements of law in that it is not
stated therein that the testatrix caused Attorney Almario to write her name at
her express direction.

The appeal of the oppositor-appellant is based upon the alleged failure of the
trial court in not finding that the will in question was executed after the death
of Leoncia Tolentino, or that she was mentally and physically incapable of
executing said will one day before her death. After a careful examination of
the evidence on these points we find no reason for setting aside the
conclusion of the trial court as set forth above. The assignments of the
oppositor-appellant are therefore overruled.

As to the contention of the petitioner-appellant, as stated above, the trial


court denied probate of the will on the sole ground that the attestation clause
does not state that the testratrix requested Attorney Almario to write her
name.

The last paragraph of the questioned will reads in part as follows:

En prueba de todo lo cual, firmo el presente testamento con mi marcha


digital, poque no puedo estampar mi firma a causa de mi debilidad, rogando
al abogado M. Almario que poga mi nombre en el sitio donde he de estampar
mi marcha digital . . ..

The evidence of record established the fact that Leoncia Tolentino, assisted
by Attorney Almario, placed her thumb mark on each and every age of time

questioned will and the said attorney merely wrote her name to indicate the
place where she placed said thumb mark. In other words Attorney Almario did
not sign for the testatrix. She signed for placing her thumb mark on each and
every page thereof "A statute requiring a will to be 'signed' is satisfied if the
signature is made by the testator's mark." (Quoted by this court from 28
R.C.L., p, 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It is clear,
therefore, that it was not necessary that the attestation clause in question
should state that the testatrix requested Attorney Almario to sign her name
inasmuch as the testratrix signed the will in question in accordance with law.

The appealed order of the trial court is reversed and the questioned will of
Leoncia Tolentino, deceased, is hereby admitted to probate with the costs of
this appeal against the oppositor-appellant.

G.R. No. 1641, Jaboneta v. Gustilo et al., 5 Phil. 541


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

January 19, 1906

G.R. No. 1641


GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-appellees.

Ledesma, Sumulong and Quintos for appellant.


Del-Pan, Ortigas and Fisher for appellees.

CARSON, J.:

In these proceedings probate was denied the last will and testament of
Macario Jaboneta, deceased, because the lower court was of the opinion from
the evidence adduced at the hearing that Julio Javellana, one of the
witnesses, did not attach his signature thereto in the presence of Isabelo
Jena, another of the witnesses, as required by the provisions of section 618 of
the Code of Civil Procedure.

The following is a copy of the evidence which appears of record on this


particular point, being a part of the testimony of the said Isabeo Jena:

Q.

1641

Who first signed the will?

A.

1641

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

Q.

1641

Who were those others to whom you have just referred?

A.
1641
After the witness Aniceto signed the will I left the house,
because I was in a hurry, and at the moment when I was leaving I saw Julio
Javellana with the pen in his hand in position ready to sign (en actitud de
firmar). I believe he signed, because he was at the table. . . .

Q.
1641
State positively whether Julio Javellana did or did not sign as a
witness to the will.

A.
1641
I can't say certainly, because as I was leaving the house I saw
Julio Javellana with the pen in his hand, in position ready to sign. I believe he
signed.

Q.

1641

Why do you believe Julio Javellana signed?

A.
1641
Because he had the pen in his hand, which was resting on the
paper, though I did not actually see him sign.

Q.

1641

Explain this contradictory statement.

A.
1641
After I signed I asked permission to leave, because I was in a
hurry, and while I was leaving Julio had already taken the pen in his hand, as
it appeared, for the purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand with the pen resting
on the will, moving it as if for the purpose of signing.

Q.
1641
State positively whether Julio moved his hand with the pen as
if for the purpose of signing, or whether he was signing

A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to
have been questioned by any of the parties to the proceedings, but the court,
nevertheless, found the following facts:

On the 26th day of December, 1901, Macario Jaboneta executed under the
following circumstances the document in question, which has been presented
for probate as his will:

Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered


that the document in question be written, and calling Julio Javellana, Aniceto
Jalbuena, and Isabelo Jena as witnesses, executed the said document as his
will. They were all together, and were in the room where Jaboneta was, and
were present when he signed the document, Isabelo Jena signing afterwards
as a witness, at his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then signed as a witness in the
presence of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave,
took his hat and left the room. As he was leaving the house Julio Javellana
took the pen in his hand and put himself in position to sign the will as a

witness, but did not sign in the presence of Isabelo Jena; but nevertheless,
after Jena had left the room the said Julio Javellana signed as a witness in the
presence of the testator and of the witness Aniceto Jalbuena.

We can not agree with so much of the above finding of facts as holds that the
signature of Javellana was not signed in the presence of Jena, in compliance
with the provisions of section 618 of the Code of Civil Procedure. The fact that
Jena was still in the room when he saw Javellana moving his hand and pen in
the act of affixing his signature to the will, taken together with the testimony
of the remaining witnesses which shows that Javellana did in fact there and
then sign his name to the will, convinces us that the signature was affixed in
the presence of Jena. The fact that he was in the act of leaving, and that his
back was turned while a portion of the name of the witness was being
written, is of no importance. He, with the other witnesses and the testator,
had assembled for the purpose of executing the testament, and were
together in the same room for that purpose, and at the moment when the
witness Javellana signed the document he was actually and physically
present and in such position with relation to Javellana that he could see
everything which took place by merely casting his eyes in the proper
direction, and without any physical obstruction to prevent his doing so,
therefore we are of opinion that the document was in fact signed before he
finally left the room.

The purpose of a statutory requirement that the witness sign in the presence
of the testator is said to be that the testator may have ocular evidence of the
identity of the instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental apprehension.
(See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if
the witnesses are together for the purpose of witnessing the execution of the
will, and in a position to actually see the testator write, if they choose to do
so; and there are many cases which lay down the rule that the true test of
vision is not whether the testator actually saw the witness sign, but whether
he might have seen him sign, considering his mental and physical condition
and position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo.,
579.)

The principles on which these cases rest and the tests of presence as
between the testator and the witnesses are equally applicable in determining
whether the witnesses signed the instrument in the presence of each other,

as required by the statute, and applying them to the facts proven in these
proceedings we are of opinion that the statutory requisites as to the
execution of the instrument were complied with, and that the lower court
erred in denying probate to the will on the ground stated in the ruling
appealed from.

We are of opinion from the evidence of record that the instrument


propounded in these proceedings was satisfactorily proven to be the last will
and testament of Macario Jaboneta, deceased, and that it should therefore be
admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of


costs, and after twenty days the record will be returned to the court form
whence it came, where the proper orders will be entered in conformance
herewith. So ordered.

G.R. No. 5971, Nera et al. v. Rimando, 18 Phil. 450


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

February 27, 1911

G.R. No. 5971


BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.


Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution
of the instrument propounded as a will in the court below, is whether one of
the subscribing witnesses was present in the small room where it was
executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was outside, some eight
or ten feet away, in a large room connecting with the smaller room by a
doorway, across which was hung a curtain which made it impossible for one
in the outside room to see the testator and the other subscribing witnesses in
the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing


witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the instrument,
and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will
and testament of the deceased.

The trial judge does not appear to have considered the determination of this
question of fact of vital importance in the determination of this case, as he
was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven, would
not be sufficient in itself to invalidate the execution of the will. But we are
unanimously of opinion that had this subscribing witness been proven to have
been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the inner
room, it would have been invalid as a will, the attaching of those signatures
under circumstances not being done "in the presence" of the witness in the
outer room. This because the line of vision from this witness to the testator
and the other subscribing witnesses would necessarily have been impeded by
the curtain separating the inner from the outer one "at the moment of
inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of
a will is not whether they actually saw each other sign, but whether they
might have been seen each other sign, had they chosen to do so, considering
their mental and physical condition and position with relation to each other at
the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to
each other at the moment of the subscription of each signature, must be
such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may
be held to have executed the instrument in the presence of each other if it
appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The
evidence in the case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document he was actually
and physically present and in such position with relation to Jaboneta that he
could see everything that took place by merely casting his eyes in the proper
direction and without any physical obstruction to prevent his doing so." And
the decision merely laid down the doctrine that the question whether the
testator and the subscribing witnesses to an alleged will sign the instrument
in the presence of each other does not depend upon proof of the fact that
their eyes were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely
casting the eyes in the proper direction they could have seen each other sign.
To extend the doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the purpose for
which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded
therein to probate as the last will and testament of Pedro Rimando, deceased,
is affirmed with costs of this instance against the appellant.

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 parte praying 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.

G.R. No. L-18979, In re Testate Estate of Villacorte. Icasiano v. Icasiano and


Icasiano, 11 SCRA 422
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

June 30, 1964

G.R. No. L-18979


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.

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 proponentsappellees stand to profit from properties held by them as attorneys-in-fact of
the deceased and not enumerated or mentioned therein, while oppositorsappellants 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. 93980

June 27, 1994

CLEMENTE CALDE, petitioner,


vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED,
respondents.

Nestor P. Mondok for petitioner.

Lazaro Padong for private respondents.

PUNO, J.:

This is a petition for review by certiorari of the Decision, dated March 27,
1990, of the Court of appeals 1 in CA-G.R. CV No. 19071, disallowing probate
of the Last Will and Codicil executed by Calibia Lingdan Bulanglang, who died
on March 20, 1976.

The records show that decedent left behind nine thousand pesos (P9,000.00)
worth of property. She also left a Last Will and Testament, dated October 30,
1972, and a Codicil thereto, dated July 24, 1973. Both documents contained
the thumbmarks of decedent. They were also signed by three (3) attesting
witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal
Judge and Notary Public Ex-Officio of Bauko, Mt. Province.

Nicasio Calde, the executor named in the will, filed a Petition for its allowance
before the RTC of Bontoc, Mt. Province, Br. 36. 2 He died during the pendency
of the proceedings, and was duly substituted by petitioner. Private
respondents, relatives of decedent, opposed the Petitioner filed by Calde, on
the following grounds: that the will and codicil were written in Ilocano, a
dialect that decedent did not know; that decedent was mentally
incapacitated to execute the two documents because of her advanced age,
illness and deafness; that decedents thumbmarks were procured through
fraud and undue influence; and that the codicil was not executed in
accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approving
and allowing decedents will and its codicil. The decision was appealed to and
reversed by the respondent Court of Appeals. It held:

. . . (T)he will and codicil could pass the safeguards under Article 805 of the
New Civil Code but for one crucial factor of discrepancy in the color of ink
when the instrumental witnesses affixed their respective signatures. When
subjected to cross-examination, Codcodio Nacnas as witness testified as
follows:

And all of you signed on the same table?

Yes, sir.

Q
And when you were all signing this Exhibit "B" and "B-1", Exhibit "B"
and "B-1" which is the testament was passed around all of you so that each
of you will sign consecutively?

Yes, sir.

Who was the first to sign?

Calibia Lingdan Bulanglang.

Q
After Calibia Lingdan Bulanglang was made to sign I withdraw the
question. How did Calibia Lingdan Bulanglang sign the last will and
testament?

A
She asked Judge Tolete the place where she will affix her thumbmark so
Judge Tolete directed her hand or her thumb to her name.

Q
After she signed, who was the second to sign allegedly all of you there
present?

Jose Becyagen.

With what did Jose Becyagen sign the testament, Exhibit "B" and "B-1"?

Ballpen.

Q
And after Jose Becyagen signed his name with the ballpen, who was
the next to sign?

Me, sir.

Q
And Jose Becyagen passed you the paper and the ballpen, Exhibit "B"
and "B-1" plus the ballpen which used to sign so that you could sign your
name, is that correct?

Yes, sir.

Q
And then after you signed, who was the next to sign the document,
Exhibit "B" and "B-1"?

Hilario Coto-ong.

Q
So you passed also to Hilario Coto-ong the same Exhibit "B" and "B-1"
and the ballpen so that he could sign his name as witness to the document, is
it not?

Yes, sir.

Q
And that is the truth and you swear that to be the truth before the
Honorable Court?

ATTY. DALOG:

He already testified under oath, Your Honor.

COURT:

Witness may answer

Yes, sir.

For his part, Obanan Ticangan likewise admitted during cross-examination in


regard to the codicil that:

Q
When you signed Exhibit "D" and "D-1", did you all sign with the same
ballpen?

One.

Such admissions from instrumental witnesses are indeed significant since


they point to no other conclusion than that the documents were not signed
by them in their presence but on different occasions since the same ballpen
used by them supposedly in succession could not have produced a different
color from blue to black and from black to blue. In fact, the attestation clause
followed the same pattern. The absurd sequence was repeated when they
signed the codicil, for which reason, We have no other alternative but to
disallow the Last Will and Codicil. Verily, if the witnesses and testatrix used
the same ballpen, then their signatures would have been in only one color,
not in various ones as shown in the documents. Moreover, the signatures, in
different colors as they are, appear to be of different broadness, some being
finer than the others, indicating that, contrary to what the testamentary
witnesses declared on the witness stand, not only one ballpen was used, and,
therefore, showing that the documents were not signed by the testatrix and
instrumental witnesses in the presence of one another. . . " (Rollo, pp. 44-46.
Citations omitted.)

Petitioner unsuccessfully moved for reconsideration of the impugned


Decision. His motion was denied by the respondent court in its Order, dated
May 24, 1990.

Thus, this appeal by petitioner who now puts in issue the correctness of the
respondent courts conclusion that both decedents will and codicil were not
subscribed by the witnesses in the presence of the testator and of one
another, contrary to the requirements of Article 805 of the Civil Code. He
contends that:

1.
THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISION OF THE SUPREME COURT BY CONCLUDING BASED ON PURE
SPECULATION OR SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF
JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE THAT THE WILL AND
THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG WERE SIGNED BY
HER AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;

2.
THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISIONS OF THE SUPREME COURT BY DISREGARDING THE PROBATIVE
VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND TESTAMENT
AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG.

The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the
evidence submitted, respondent appellate court erred in concluding that both
decedents Last Will and Testament, and its Codicil were subscribed by the
instrumental witnesses on separate occasions. As a general rule, factual
findings of the Court of Appeals are considered final and conclusive, and
cannot be reviewed on appeal to this court. In the present instance, however,
there is reason to make an exception to that rule, since the finding of the
respondent court is contrary to that of the trial court, viz.:

. . . (Private respondents) pointed out however, that the assertions of


petitioners witnesses are rife with contradictions, particularly the fact that
the latters signatures on the documents in issue appear to have been written
in ballpens of different colors contrary to the statements of said witnesses
that all of them signed with only one ballpen. The implication is that the
subscribing witnesses to the Will and Codicil, and the testatrix did not
simultaneously sign each of the documents in one sitting but did it piecemeal
a violation of Art. 805 of the Code. This conclusion of the (private
respondents) is purely circumstantial. From this particular set of facts,
numerous inferences without limits can be drawn depending on which side of
the fence one is on. For instance, considering the time interval that elapsed
between the making of the Will and Codicil, and up to the filing of the petition
for probate, the possibility is not remote that one or two of the attesting
witnesses may have forgotten certain details that transpired when they
attested the documents in question . . . (Rollo, pp. 36-37.)

A review of the facts and circumstances upon which respondent Court of


Appeals based its impugned finding, however, fails to convince us that the
testamentary documents in question were subscribed and attested by the
instrumental witnesses during a single occasion.

As sharply noted by respondent appellate court, the signatures of some


attesting witnesses in decedents will and its codicil were written in blue ink,
while the others were in black. This discrepancy was not explained by
petitioner. Nobody of his six (6) witnesses testified that two pens were used
by the signatories on the two documents. In fact, two (2) of petitioners
witnesses even testified that only one (1) ballpen was used in signing the two
testamentary documents.

It is accepted that there are three sources from which a tribunal may properly
acquire knowledge for making its decisions, namely: circumstantial evidence,
testimonial evidence, and real evidence or autoptic proference. Wigmore
explains these sources as follows:

If, for example, it is desired to ascertain whether the accused has lost his
right hand and wears an iron hook in place of it, one source of belief on the
subject would be the testimony of a witness who had seen the arm; in
believing this testimonial evidence, there is an inference from the human
assertion to the fact asserted. A second source of belief would be the mark
left on some substance grasped or carried by the accused; in believing this
circumstantial evidence, there is an inference from the circumstance to the
thing producing it. A third source of belief remains, namely, the inspection by
the tribunal of the accuseds arm. This source differs from the other two in
omitting any step of conscious inference or reasoning, and in proceeding by
direct self-perception, or autopsy.

It is unnecessary, for present purposes, to ask whether this is not, after all, a
third source of inference, i.e., an inference from the impressions or
perceptions of the tribunal to the objective existence of the thing perceived.
The law does not need and does not attempt to consider theories of
psychology as to the subjectivity of knowledge or the mediateness of
perception. It assumes the objectivity of external nature; and, for the
purposes of judicial investigation, a thing perceived by the tribunal as
existing does exist.

There are indeed genuine cases of inference by the tribunal from things
perceived to other things unperceived as, for example, from a persons
size, complexion, and features, to his age; these cases of a real use of
inference can be later more fully distinguished . . . But we are here concerned
with nothing more than matters directly perceived for example, that a
person is of small height or is of dark complexion; as to such matters, the
perception by the tribunal that the person is small or large, or that he has a
dark or light complexion, is a mode of acquiring belief which is independent
of inference from either testimonial or circumstantial evidence. It is the
tribunals self-perception, or autopsy, of the thing itself.

From the point of view of the litigant party furnishing this source of belief, it
may be termed Autoptic Proference. 3 (Citations omitted.)

In the case at bench, the autoptic proference contradicts the testimonial


evidence produced by petitioner. The will and its codicil, upon inspection by
the respondent court, show in black and white or more accurately, in black
and blue that more than one pen was used by the signatories thereto.
Thus, it was not erroneous nor baseless for respondent court to disbelieve
petitioners claim that both testamentary documents in question were
subscribed to in accordance with the provisions of Art. 805 of the Civil Code.

Neither did respondent court err when it did not accord great weight to the
testimony of Judge Tomas A. Tolete. It is true that his testimony contains a
narration of how the two testamentary documents were subscribed and
attested to, starting from decedents thumbmarking thereof, to the alleged
signing of the instrumental witnesses thereto in consecutive order.
Nonetheless, nowhere in Judge Toletes testimony is there any kind of
explanation for the different-colored signatures on the testaments.

IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of
respondent Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071
disallowing the Last Will and Testament, and the Codicil thereto, of the
decedent Calibia Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against
petitioner.

SO ORDERED.

G.R. No. L-32213

November 26, 1973

AGAPITA N. CRUZ, petitioner,


vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of


Cebu allowing the probate of the last will a testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said
decease opposed the allowance of the will (Exhibit "E"), alleging the will was
executed through fraud, deceit, misrepresentation and undue influence; that
the said instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties he was
disposing and that the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court allowed the
probate of the said last will and testament Hence this appeal by certiorari
which was given due course.

The only question presented for determination, on which the decision of the
case hinges, is whether the supposed last will and testament of Valente Z.
Cruz (Exhibit "E") was executed in accordance with law, particularly Articles
805 and 806 of the new Civil Code, the first requiring at least three credible

witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas


Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last
named, is at the same time the Notary Public before whom the will was
supposed to have been acknowledged. Reduced to simpler terms, the
question was attested and subscribed by at least three credible witnesses in
the presence of the testator and of each other, considering that the three
attesting witnesses must appear before the notary public to acknowledge the
same. As the third witness is the notary public himself, petitioner argues that
the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee,
Manuel B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial compliance
with the legal requirement of having at least three attesting witnesses even if
the notary public acted as one of them, bolstering up his stand with 57
American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath rather
than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public before
whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having
signed the will. To acknowledge before means to avow (Javellana v. Ledesma,
97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or ahead
of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72;
Funk & Wagnalls New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.) Consequently, if the third
witness were the notary public himself, he would have to avow assent, or
admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear
before the other to acknowledge his participation in the making of the will. To
permit such a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard


against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.)
That function would defeated if the notary public were one of the attesting
instrumental witnesses. For them he would be interested sustaining the
validity of the will as it directly involves him and the validity of his own act. It
would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p.
106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill.
130). There are others holding that his signing merely as notary in a will
nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911,
Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v.
Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or are not
decisive of the issue herein because the notaries public and witnesses
referred to aforecited cases merely acted as instrumental, subscribing
attesting witnesses, and not as acknowledging witnesses. He the notary
public acted not only as attesting witness but also acknowledging witness, a
situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806.
Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a
copy of the will or file another with the office of the Clerk of Court. [Emphasis
supplied]

To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of
Article 80 be requiring at least three credible witnesses to act as such and of
Article 806 which requires that the testator and the required number of
witnesses must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses appeared before
the notary public for or that purpose. In the circumstances, the law would not
be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed
and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E")

is declared not valid and hereby set aside.

Cost against the appellee

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 of Avera 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 shall state the number of sheets or pages used, upon which
the will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not executed and attested as
in this Act provided." The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the negative, to

enforce legislative intention. It is not within the province of the courts to


disregard the legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra,
and, to the extent necessary, modify the decision in the case of Nayve vs.
Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of


the Court that once more appeared to revive the seeming diversity of views
that was earlier threshed out therein. The cases of Quinto vs. Morata, 49
Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of
Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs.
Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55
Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez
vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away
from the strict interpretation rule and established a trend toward an
application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of


the undeniable inclination towards a liberal construction, recommended the
codification of the substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the
Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines
had previously upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil Procedure, as
amended regarding the contents of the attestation clause were mandatory,
and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily restrained the freedom of the testator
in disposing of his property.

However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution of

wills. This liberal view is enunciated in the cases 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.

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 8102 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. T21178. 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:

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 810.1wphi1 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.

[G.R. No. 123486. August 12, 1999]

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs.


EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA
PATIGAS, respondents.
DECISION
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]

xxx

Q. Who sometime accompany her?

A. I sometimes accompany her

Q. In collecting rentals does she issue receipts?

A. Yes, sir.[13]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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]

xxx

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 crossexamination 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.