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Testate Estate of Cagro vs.

G.R. L-5826

The case is an appeal interposed by the oppositors from a decision of the CFI of Samar which
admitted to probate a will allegedly executed by Vicente Cagro who died in Pambujan, Samar
on Feb. 14, 1949. The appellants insisted that the will is defective because the attestation was
not signed by the witnesses at the bottom although the page containing the same was signed by
the witnesses on the left hand margin. Petitioner contended that the signatures of the 3
witnesses on the left hand margin conform substantially to law and may be deemed as their
signatures to the attestation clause.

Issue: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the facts attending the
execution of the will. It is required by law to be made by the attesting witnesses and it must
necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses since the
omission of their signatures at the bottom negatives their participation.
Moreover, the signatures affixed on the let hand margin is not substantial conformance to the
law. The said signatures were merely in conformance with the requirement that the will must be
signed on the left-hand margin of all its pages. If the attestation clause is unsigned by the 3
witnesses at the bottom, it would be easier to add clauses to a will on a subsequent occasion
and in the absence of the testator and any or all of the witnesses.
The probate of the will is denied.

Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:

The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz.
However, the petitioner opposed the allowance of the will alleging that it was executed through
fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument
was executed without the testator having been informed of its contents and finally, that it was
not executed in accordance with law. . One of the witnesses, Angel Tevel Jr. was also the notary
before whom the will was acknowledged. Despite the objection, the lower court admitted the will
to probate on the ground that there is substantial compliance with the legal requirements of
having at least 3 witnesses even if the notary public was one of them.

Issue: Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

The will is not valid. The notary public cannot be considered as the third instrumental witness
since he cannot acknowledge before himself his having signed the said will. An acknowledging
officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and 'before'
means in front of or preceding in space or ahead of. The notary cannot split his personality into
two so that one will appear before the other to acknowledge his participation int he making of
the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral
arrangements, a function defeated if he were to be one of the attesting or instrumental
witnesses. He would be interested in sustaining the validity of the will as it directly involves
himself and the validity of his own act. he would be in an inconsistent position, thwarting the
very purpose of the acknowledgment, which is to minimize fraud.

Gabucan vs. Manta

This case is about the dismissal of a petition for the probate of the notarial will of the late
Rogaciano Gabucan on the ground that it does not bear a thirty-centavo documentary stamp.
The probate court refused to reconsider the dismissal in spite of petitioners manifestation that
he had already attached the documentary stamp to the original of the will.
W/N the probate correct was correct in dismissing the petition on the ground of failure to affix
the documentary stamp to the will
The Court held that the lower court manifestly erred in declaring that, because no documentary
stamp was affixed to the will, there was no will and testament to probate and, consequently,
the alleged action must of necessity be dismissed.
What the probate court should have done was to require the petitioner or proponent to affix the
requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is
the taxable portion of that document. The documentary stamp may be affixed at the time the
taxable document is presented in evidence.

Javellana vs. Ledesma

G.R. No. L-7179

The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria
Ledesma in July 1953. This testament was deemed executed on May 1950 and May 1952. The
contestant was the sister and nearest surviving relative of the deceased. She appealed from
this decision alleging that the will were not executed in accordance with law. . The testament
was executed at the house of the testatrix. One the other hand, the codicil was executed after
the enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a
notary public. Now, the contestant, who happens to be one of the instrumental witnesses
asserted that after the codicil was signed and attested at the San Pablo hospital, that Gimotea
(the notary) signed and sealed it on the same occasion. Gimotea, however, said that he did not
do so, and that the act of signing and sealing was done afterwards. One of the allegations was
that the certificate of acknowledgement to the codicil was signed somewhere else or in the
office of the notary. The ix and the witnesses at the hospital, was signed and sealed by the
notary only when he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the absence of the testator
and witnesses affects the validity of the will

Held: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the
testator, the witnesses and the notary be accomplished in one single act. All that is required is
that every will must be acknowledged before a notary public by the testator and witnesses. The
subsequent signing and sealing is not part of the acknowledgement itself nor of the
testamentary act. Their separate execution out of the presence of the testator and the witnesses
cannot be a violation of the rule that testaments should be completed without interruption.

Taboada vs. Rosal GR L-36033. November 5, 1982

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

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

G.R. No. L-58509 December 7, 1982

deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL.,
oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in
her favor. The petition was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla
Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was
estopped from claiming that the deceased left a will by failing to produce the will within twenty
days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The
alleged copy of the alleged holographic will did not contain a disposition of property after death
and was not intended to take effect after death, and therefore it was not a will; (3) The alleged
hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would
produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave
any will, holographic or otherwise, executed and attested as required by law. The appellees
likewise moved for the consolidation of the case. Their motion was granted by the court in an
order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved again to
dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic
was not a last will but merely an instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed
holographic wills cannot be proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of
The appellees then filed a motion for reconsideration. On July 23, 1979, the court set aside its
order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. It is our considered opinion that once the original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that in the matter of
holographic wills the law, it is reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years
from the time of the execution of the will to the death of the decedent, the fact that the original of
the will could not be located shows to our mind that the decedent had discarded before his
death his allegedly missing Holographic Will.
Appellants motion for reconsideration was denied. Hence, an appeal to the Court of Appeals.

Issue: whether a holographic will which was lost or cannot be found can be proved by means of
a photostatic copy.
Yes. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of
the will by the court after its due execution has been proved. The probate may be uncontested
or not. If uncontested, at least one Identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three Identifying witnesses are required.
However, if the holographic will has been lost or destroyed and no other copy is available, the
will can not be probated because the best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between sample handwritten statements of
the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic
will may be allowed because comparison can be made with the standard writings of the testator.
In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that the execution and the contents
of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses
who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity. But, in
Footnote 8 of said decision, it says that Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be exhibited and tested before
the probate court, Evidently, the photostatic or xerox copy of the lost or destroyed holographic
will may be admitted because then the authenticity of the handwriting of the deceased can be
determined by the probate court.

Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969
Fernando, J (Ponente)

Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language she
knew an spoke. The other will was executed in December 1960 consisting of only one page,
and written in Tagalog. The witnesses to the 1960 will declared that the will was first read
'silently' by the testatrix before signing it. The probate court admitted the will. The oppositors
alleged that the as of December 1960, the eyesight of the deceased was so poor and defective
that she could not have read the provisions contrary to the testimony of the witnesses.

Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of the New Civil Code (NCC)
should apply.If the testator is blind or incapable of reading, he must be apprised of the contents
of the will for him to be able to have the opportunityto object if the provisions therein are not in
accordance with his wishes.

The testimony of her opthalmologist established that notwithstanding an operation to remove

her cataract and being fitted with the lenses, this did not improve her vision. Her vision remained
mainly for viewing distant objects and not for reading. There was no evidence that her vision
improved at the time of the execution of the 2nd will. Hence, she was incapable of reading her
own will. The admission of the will to probate is therefor erroneous.


September 14, 1993


The testator did not read the final draft of the will himself. Instead, private respondent, as the
lawyer who drafted the 8-paged document, read the same aloud in the presence of the testator,
the 3 instrumental witnesses and the notary public. The latter 4 followed the reading with their
own respective copies previously furnished them.
Said will was admitted to probate. Later on, a codicil was executed, and by that time,
the testator was already suffering from glaucoma. But the disinheritance and revocatory
clauses were unchanged. As in the case of the notarial will, the testator did not personally read
the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence
and in the presence of the three instrumental witnesses (same as those of the notarial will) and
the notary public who followed the reading using their own copies.


Was there substantial compliance to the reading of the will?

Article 808 not only applies to blind testators, but also to those who, for one reason or another,
are incapable of reading their wills. Hence, the will should have been read by the notary public
and an instrumental witness. However, the spirit behind the law was served though the letter
was not. In this case, there was substantial compliance. Substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are intended to protect the testator from all kinds
of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the
testamentary privilege.

In this case, private respondent read the testator's will and codicil aloud in the presence
of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent
thereto, the testator affirmed, upon being asked, that the contents read corresponded with his
instructions. Only then did the signing and acknowledgement take place.


On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. Insaid will the
deceased instituted as his heirs, Valentina Cuevas, his widow and Rosario Asera Venzon,
his daughter. He named therein his widow as executrix of the will. On February 1, 1946,
Valentina Cuevas filed a petition for the probate of said will. On May 10, 1946, one Pilar
Achacoso filed an alternative petition for the probate of a previous will executed by the
deceased praying therein that, if the will submitted by the widow be rejected, the other will be
admitted to probate in lieu thereof. In the previous will there are other heirs instituted, among
them petitioner Pilar Achacoso. Pilar Achacoso objected to the probate of the second will
executed by the deceased on October 10, 1945.After due hearing, the court found that the latter
will was executed in accordance with law and ordered that it be admitted to probate. Pilar
Achacoso took the case to the Court of Appeals, but the latter certified it to this Court on the
ground that it involves purely questions of law.
The will in question, after reciting in separate paragraphs, and under correlative numbers, the
provisions of the will, winds up with the following clause:
IN WITNESS WHEREOF, I sign this testament or last will in the municipality of Iba,
Zambales, Philippines, this 10th day of October, 1945, in the presence of the
three witnesses, namely Dr. Nestorio Trinidad, Don Baldomero Achacoso, and Mr.
Proceso Cabal as instrumental witnesses tomy signing; this testament is written in three
(3) sheets marked by letter "A", "B" and "C" consecutively on top of each sheet and upon
my request and in my presence and also in the presence of each of the
aforesaid instrumental witnesses, they also signed this testament already reffered to.I
hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as
well as the testament itself have been signed by me as also each of the witnesses has
also signed in my presence and in the presence of each other.(Sgd.) JOSE VENZON
Issue: whether the alleged lack of attestation clause in the will under consideration, or to the fact
that, if there is such attestation clause, the same has not been signed by the instrumental
witnesses, but by the testator himself, and it is claimed that this defect has the effect of
invalidating the will.
Held: Yes
The clause above quoted is the attestation clause referred to in the law which, in our
opinion, substantially complies with its requirements.
The only apparent anomaly we find is that it appears to bean attestation made by the testator
himself more than by the instrumental witnesses. This apparent anomaly, as to affect the validity
of the will, it appearing that right under the signature of the testator, there appear the signatures
of the three instrumental witnesses."Instrumental witness, as define by Escriche in his

Diccionario Razonado deLegislacion y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in
the execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807,809). An
instrumental witness, therefore, does not merely attest to the signature of the testator but also to
the proper execution of the will.
The fact that the three instrumental witnesses have signed the will immediately under the
signature of the testator, shows that they have in fact attested not only to the genuineness of his
signature but also to the due execution of the will as embodied in the attestation clause. As was
said in one case, "the object of the solemnities surrounding the execution of the 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 this
primordial ends. But on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's will, must be disregarded.

Dichoso v Marcos Digest

G.R. No. 180282, April 11, 2011
Nachura, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to reverse
and set aside the CA decision and resolution which reversed and set aside the RTC decision on
the civil case. The resolution denied the MR filed by the petitioners . In 2002, petitioners filed a
Complaint for Easement of Right of Way against the respondent Patrocinio L. Marcos and
alleged therein that they are the owners of Lot No. 21553; while respondent is the owner
another lot. Since the petitioners had no access to a public road to and from their property, they
claimed to have used a portion of Lot No. 1 in accessing the road since 1970. Respondent,
however, blocked the passageway with piles of sand. Though petitioners have been granted
another passageway by Spouses Arce, the owners of another adjacent lot. Hence the
complaint before the RTC. Instead of filing an Answer, respondent filed a motion to dismiss on
the ground of lack of cause of action and noncompliance with the requisite certificate of nonforum shopping. The RTC denied respondents motion to dismiss. Respondent denied that he
allowed anybody to use Lot No. 1 as passageway and that petitioners claim of right of way is
only due to expediency and not necessity. He also maintained that there is an existing
easement of right of way available to petitioners granted by the Spouses Arce. The RTC
declared that respondents answer failed to tender an issue, and opted to render judgment on
the pleadings and thus deemed the case submitted for decision. RTC rendered a decision in
favor of the petitioners, granting a right of way over Lot 01 after finding that petitioners
adequately established the requisites to justify an easement of right of way in accordance with
Articles 649 and 650 of the Civil Code. On appeal, the CA reversed and set aside the RTC
decision and dismissed petitioners complaint. It concluded that there is no need to establish an
easement over respondents property since the Arce spouses had already provided an access
road which is adequate. It emphasized that the convenience of the dominant estate is never the
gauge for the grant of compulsory right of way. Hence, this petition. Petitioners contend that
respondent's lot is the shortest route in going to and fro their property to a public street and
where they used to pass.

ISSUE: Whether petitioners are entitled to a legal easement

NO. The petition is without merit. Petitioners failed to show sufficient factual evidence to satisfy
the enumerated requirements under Art. 650 (NCC).

By its very nature, an easement involves an abnormal restriction on the property rights of the
servient owner and is regarded as a charge or encumbrance on the servient estate. It is
incumbent upon the owner of the dominant estate to establish by clear and convincing evidence
the presence of all the preconditions before his claim for easement of right of way may be
granted. Mere convenience for the dominant estate is not what is required by law as the basis
of setting up a compulsory easement. The convenience of the dominant estate has never been
the gauge for the grant of compulsory right of way. The true standard for the grant of the legal
right is "adequacy." In order to justify the imposition of an easement of right of way, there must
be real, not fictitious or artificial, necessity for it. As such, when there is already an existing
adequate outlet from the dominant estate to a public highway, as in this case, even when the
said outlet, for one reason or another, be inconvenient, the need to open up another servitude is
entirely unjustified. Petitioners had already been granted a right of way through the other
adjacent lot. There is an existing outlet to and from the public road. Other lot owners use the
said outlet in going to and coming from the public highway.