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SUCCESSION: ART.

806

G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,


vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by
ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed
by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of
80. In refusing to give legal recognition to the due execution of this document,
the Court is provided the opportunity to assert a few important doctrinal rules in
the execution of notarial wills, all self-evident in view of Articles 805 and 806 of
the Civil Code.
A will whose attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose attestation clause
is not signed by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of these
defects is sufficient to deny probate. A notarial will with all three defects is
just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a notarial will.
Full and faithful compliance with all the detailed requisites under Article 805 of
the Code leave little room for doubt as to the validity in the due execution of the
notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a notary public by the testator
and the witnesses. A notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the
Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela
sought to admit to probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read
in full:

HULING HABILIN NI EUGENIA E. IGSOLO


SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc,
Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at
memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at
binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sangayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat
(Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa
akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang
panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24
na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat
ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24,
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang
pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng
huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak
ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo,
1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana
sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa

SUCCESSION: ART. 806

ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng


kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng
Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
1
Series of 1981 TAN # 1437-977-8
The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was
alleged to have resided abroad. Petitioner prayed that the will be allowed, and
that letters testamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
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decedent. Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several
court cases filed by oppositor against petitioner, particularly for forcible entry and
usurpation of real property, all centering on petitioners right to occupy the
3
properties of the decedent. It also asserted that contrary to the representations
of petitioner, the decedent was actually survived by 12 legitimate heirs, namely
her grandchildren, who were then residing abroad. Per records, it was
subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died
4
in 1965, and the mother of a legitimate child, Asuncion E. Igsolo, who
5
predeceased her mother by three (3) months.
Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedents signature did
not appear on the second page of the will, and the will was not properly
acknowledged. These twin arguments are among the central matters to this
petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August
6
1992. The RTC favorably took into account the testimony of the three (3)
witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The
RTC also called to fore "the modern tendency in respect to the formalities in the
execution of a will x x x with the end in view of giving the testator more freedom
7
in expressing his last wishes;" and from this perspective, rebutted oppositors
arguments that the will was not properly executed and attested to in accordance
with law.
After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with the end in view
of giving the testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been executed by
the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of
the will after the signature of the testatrix, the following statement is made under
the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at

SUCCESSION: ART. 806

bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi
ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat
isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial compliance
with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of
the will containing the attestation clause and acknowledgment, instead of at the
bottom thereof, substantially satisfies the purpose of identification and
attestation of the will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the attestation
did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of
a serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which
contains only the last portion of the attestation clause and acknowledgment is
not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will
is a forgery, the testimonies of the three subscribing witnesses to the will are
convincing enough to establish the genuineness of the signature of the testatrix
8
and the due execution of the will.
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision
dated 17 August 1995, the Court of Appeals reversed the trial court and ordered
9
the dismissal of the petition for probate. The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
10
rendering the will void and undeserving of probate.
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that
"the number of pages used in a notarial will be stated in the attestation clause" is

merely directory, rather than mandatory, and thus susceptible to what he termed
11
as "the substantial compliance rule."
The solution to this case calls for the application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of
the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number
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of pages of the will. There was an incomplete attempt to comply with this
requisite, a space having been allotted for the insertion of the number of pages
in the attestation clause. Yet the blank was never filled in; hence, the requisite
was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in
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14
the process Uy Coque v. Navas L. Sioca and In re: Will of Andrada. In Uy
Coque, the Court noted that among the defects of the will in question was the

SUCCESSION: ART. 806

failure of the attestation clause to state the number of pages contained in the
15
will. In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose
of requiring the number of sheets to be stated in the attestation clause is
obvious; the document might easily be so prepared that the removal of a
sheet would completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand,
the total number of sheets is stated in the attestation clause the falsification of
the document will involve the inserting of new pages and the forging of the
signatures of the testator and witnesses in the margin, a matter attended with
16
much greater difficulty."
The case of In re Will of Andrada concerned a will the attestation clause of
which failed to state the number of sheets or pages used. This consideration
alone was sufficient for the Court to declare "unanim[ity] upon the point that the
17
defect pointed out in the attesting clause is fatal." It was further observed that
"it cannot be denied that the x x x requirement affords additional security against
the danger that the will may be tampered with; and as the Legislature has seen
18
fit to prescribe this requirement, it must be considered material."
19

Against these cited cases, petitioner cites Singson v. Florentino and Taboada
20
v. Hon. Rosal, wherein the Court allowed probate to the wills concerned
therein despite the fact that the attestation clause did not state the number of
pages of the will. Yet the appellate court itself considered the import of these two
cases, and made the following distinction which petitioner is unable to rebut, and
which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is
written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel
Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada]
versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may
still be valid even if the attestation does not contain the number of pages used
upon which the Will is written. However, the Decisions of the Supreme Court are
not applicable in the aforementioned appeal at bench. This is so because, in the
case of "Manuel Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of pages used in the will,
however, the same was found in the last part of the body of the Will:
"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by
Act No. 2645, which requires that the attestation clause shall state the number
of pages or sheets upon which the will is written, which requirement has been
held to be mandatory as an effective safeguard against the possibility of
interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re Will of Andrada,
42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho,
50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio 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." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have
been a fatal defect were it not for the fact that, in this case, it is discernible from
the entire will that it is really and actually composed of only two pages duly
signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by
the testatrix at the end or at the bottom while the instrumental witnesses signed
at the left margin. The other page which is marked as "Pagina dos" comprises
the attestation clause and the acknowledgment. The acknowledgment itself
states that "this Last Will and Testament consists of two pages including this
page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not
stated in any part of the Will. The will does not even contain any notarial
21
acknowledgment wherein the number of pages of the will should be stated.

SUCCESSION: ART. 806

Both Uy Coque and Andrada were decided prior to the enactment of the Civil
Code in 1950, at a time when the statutory provision governing the formal
requirement of wills was Section
22

618 of the Code of Civil Procedure. Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages
23
of the will is extant from Section 618. However, the enactment of the Civil
Code in 1950 did put in force a rule of interpretation of the requirements of wills,
at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states:
"In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will
was in fact executed and attested in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that "the underlying and fundamental objective permeating the provisions
on the [law] on [wills] in this project consists in the [liberalization] of the manner
of their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern
24
tendency] in respect to the formalities in the execution of wills." However,
petitioner conveniently omits the qualification offered by the Code Commission
in the very same paragraph he cites from their report, that such liberalization be
"but with sufficient safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure and influence upon the
25
testator."
26

Caneda v. Court of Appeals features an extensive discussion made by Justice


Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation
27
clause in wills. Uy Coque and Andrada are cited therein, along with several
28
other cases, as examples of the application of the rule of strict construction.
However, the Code Commission opted to recommend a more liberal
construction through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809
should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied
by an examination of the will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All these are facts that
the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages,
and whether all persons required to sign did so in the presence of each

other must substantially appear in the attestation clause, being the only
29
check against perjury in the probate proceedings. (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure to state the number of pages of
the will in the attestation clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the probate of a will
whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each
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other, the other omission cited by Justice J.B.L. Reyes which to his estimation
cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is
that omission which can be supplied by an examination of the will itself, without
the need of resorting to extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will
31
itself." Thus, a failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to state that the witnesses
signed in one anothers presence should be considered a fatal flaw since the
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attestation is the only textual guarantee of compliance.
The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the law
in requiring the clause to state the number of pages on which the will is written is
to safeguard against possible interpolation or omission of one or some of its
33
pages and to prevent any increase or decrease in the pages. The failure to
state the number of pages equates with the absence of an averment on the part
of the instrumental witnesses as to how many pages consisted the will, the
execution of which they had ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this requirement if the
will states elsewhere in it how many pages it is comprised of, as was the
situation in Singson and Taboada. However, in this case, there could have been
no substantial compliance with the requirements under Article 805 since there is
no statement in the attestation clause or anywhere in the will itself as to the
number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with
the formal requirements as enumerated under Article 805. Whatever the
inclinations of the members of the Code Commission in incorporating Article
805, the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the forgery or

SUCCESSION: ART. 806


34

intercalation of notarial wills. Compliance with these requirements, however


picayune in impression, affords the public a high degree of comfort that the
testator himself or herself had decided to convey property post mortem in the
35
manner established in the will. The transcendent legislative intent, even as
expressed in the cited comments of the Code Commission, is for the
fruition of the testators incontestable desires, and not for the indulgent
admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the
left-hand margin of the will, they do not appear at the bottom of the attestation
clause which after all consists of their averments before the notary public.
36

Cagro v. Cagro is material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left37
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hand margin." While three (3) Justices considered the signature requirement
had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed,
rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the
will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on
the left-hand margin conform substantially to the law and may be deemed as
their signatures to the attestation clause. This is untenable, because said
signatures are in compliance with the legal mandate that the will be signed on
the left-hand margin of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as sufficient, it would be easy
to add such clause to a will on a subsequent occasion and in the absence of the
39
testator and any or all of the witnesses.

The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses sign
each page of the will, from the requisite that the will be "attested and subscribed
by [the instrumental witnesses]." The respective intents behind these two
classes of signature are distinct from each other. The signatures on the left-hand
corner of every page signify, among others, that the witnesses are aware that
the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to
the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned
attestation clause, such signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do appear on the page
were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page
containing such clause. Without diminishing the value of the instrumental
witnesses signatures on each and every page, the fact must be noted that it is
the attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not the testator,
who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof in the
will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by
the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805
and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in
compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa
40
Lungsod ng Maynila." By no manner of contemplation can those words be
construed as an acknowledgment. An acknowledgment is the act of one who

SUCCESSION: ART. 806

has executed a deed in going before some competent officer or court and
41
declaring it to be his act or deed. It involves an extra step undertaken whereby
the signor actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to
42
by the executor. Ordinarily, the language of the jurat should avow that the
document was subscribed and sworn before the notary public, while in this case,
the notary public averred that he himself "signed and notarized" the document.
Possibly though, the word "ninotario" or "notarized" encompasses the signing of
and swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is
that the will be "acknowledged", and not merely subscribed and sworn to. The
will does not present any textual proof, much less one under oath, that the
decedent and the instrumental witnesses executed or signed the will as their
own free act or deed. The acknowledgment made in a will provides for another
all-important legal safeguard against spurious wills or those made beyond the
free consent of the testator. An acknowledgement is not an empty meaningless
43
act. The acknowledgment coerces the testator and the instrumental witnesses
to declare before an officer of the law that they had executed and subscribed to
the will as their own free act or deed. Such declaration is under oath and under
pain of perjury, thus allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those executed without the free
consent of the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions to those
persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied
by the will in question. We need not discuss them at length, as they are no
longer material to the
disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left margin,
except the last; and that all the pages shall be numbered correlatively in letters

placed on the upper part of each page. In this case, the decedent, unlike the
witnesses, failed to sign both pages of the will on the left margin, her only
44
signature appearing at the so-called "logical end" of the will on its first page.
Also, the will itself is not numbered correlatively in letters on each page, but
instead numbered with Arabic numerals. There is a line of thought that has
45
disabused the notion that these two requirements be construed as mandatory.
Taken in isolation, these omissions, by themselves, may not be sufficient to
deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they
may be of a general lack of due regard for the requirements under Article 805 by
whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes
the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice

SUCCESSION: ART. 806

G.R. No. L-20357

November 25, 1967

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL


OF GREGORIO GATCHALIAN, deceased. PEDRO REYES GARCIA,
petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA,
FEDERICO G. TUBOG, VIRGINIA G. TALANAY and ANGELES G. TALANAY,
oppositors-appellees.
E. Debuque for petitioner-appellant.
E. L. Segovia for oppositors-appellees.
DIZON, J.:
This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of
First Instance of Rizal in Special Proceedings No. 2623 denying the allowance
of the will of the late Gregorio Gatchalian, on the ground that the attesting
witnesses did not acknowledge it before a notary public, as required by law.
On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in
the municipality of Pasig, Province of Rizal, leaving no forced heirs. On April 2 of
the same year, appellant filed a petition with the above named court for the
probate of said alleged will (Exhibit "C") wherein he was instituted as sole heir.
Felipe Gatchalian, Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog,
Virginia G. Talanay and Angeles G. Talanay, appellees herein, opposed the
petition on the ground, among others, that the will was procured by fraud; that
the deceased did not intend the instrument signed by him to be as his will; and
that the deceased was physically and mentally incapable of making a will at the
time of the alleged execution of said will.
After due trial, the court rendered the appealed decision finding the document
Exhibit "C" to be the authentic last will of the deceased but disallowing it for
failure to comply with the mandatory requirement of Article 806 of the New Civil
Code that the will must be acknowledged before a notary public by the
testator and the witnesses.
An examination of the document (Exhibit "C") shows that the same was
acknowledged before a notary public by the testator but not by the instrumental
witnesses.
Article 806 of the New Civil Code reads as follows:

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.
We have held heretofore that compliance with the requirement contained in the
above legal provision to the effect that a will must be acknowledged before a
notary public by the testator and also by the witnesses is indispensable for its
validity (In re: Testate Estate of Alberto, G. R. No. L-11948, April 29, 1959). As
the document under consideration does not comply with this requirement, it is
obvious that the same may not be probated.
WHEREFORE, the decision appealed from is affirmed, with costs.
Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando,
JJ., concur.
Concepcion, C.J., and Reyes, J.B.L., J., took no part.

SUCCESSION: ART. 806

G.R. No. L-7179

June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA,


petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate
the documents in the Visayan dialect, marked Exhibits D and E, as the
testament and codicil duly executed by the deceased Da. Apolinaria Ledesma
Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with
Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses.
The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said
deceased, appealed from the decision, insisting that the said exhibits were not
executed in conformity with law. The appeal was made directly to this Court
because the value of the properties involved exceeded two hundred thousand
pesos.
Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through undue
influence. These grounds were abandoned at the hearing in the court below,
where the issue was concentrated into three specific questions: (1) whether the
testament of 1950 was executed by the testatrix in the presence of the
instrumental witnesses; (2) whether the acknowledgment clause was signed and
the notarial seal affixed by the notary without the presence of the testatrix and
the witnesses; and (3) if so, whether the codicil was thereby rendered invalid
and ineffective. These questions are the same ones presented to us for
resolution.
The contestant argues that the Court below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of
the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they
saw and heard Vicente Yap (one of the witnesses to the will) inform the
deceased that he had brought the "testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go,
because she was not feeling well; and that upon Yap's insistence that the will
had to be signed in the attorney's office and not elsewhere, the deceased took
the paper and signed it in the presence of Yap alone, and returned it with the

statement that no one would question it because the property involved was
exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing
the trial Court's rejection of the improbable story of the witnesses. It is squarely
contradicted by the concordant testimony of the instrumental witnesses, Vicente
Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under
oath that the testament was executed by testatrix and witnesses in the presence
of each other, at the house of the decedent on General Hughes St., Iloilo City,
on March 30, 1950. And it is highly unlikely, and contrary to usage, that either
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over
80 years old, should leave her own house in order to execute her will, when all
three witnesses could have easily repaired thither for the purpose. Moreover, the
cross-examination has revealed fatal flaws in the testimony of Contestant's
witnesses. Both claim to have heard the word "testamento" for the first time
when Yap used it; and they claimed ability to recall that word four years later,
despite the fact that the term meant nothing to either. It is well known that what
is to be remembered must first be rationally conceived and assimilated (II Moore
on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the
will, and that the deceased alone signed it, precisely on March 30, 1950; but she
could remember no other date, nor give satisfactory explanation why that
particular day stuck in her mind. Worse still, Allado claimed to have heard what
allegedly transpired between Yap and Da. Apolinaria from the kitchen of the
house, that was later proved to have been separated from the deceased's
quarters, and standing at a much lower level, so that conversations in the main
building could not be distinctly heard from the kitchen. Later, on redirect
examination, Allado sought to cure his testimony by claiming that he was
upstairs in a room where the servants used to eat when he heard Yap converse
with his mistress; but this correction is unavailing, since it was plainly induced by
two highly leading questions from contestant's counsel that had been previously
ruled out by the trial Court. Besides, the contradiction is hardly consonant with
this witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the presence
or absence of Aurelio Montinola at the signing of the testament or of the codicil,
and the identity of the person who inserted the date therein, are not material and
are largely imaginary, since the witness Mrs. Tabiana confessed inability to
remember all the details of the transaction. Neither are we impressed by the
argument that the use of some Spanish terms in the codicil and testament (like
legado, partes iguales, plena propiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those terms are of
common use even in the vernacular, and that the deceased was a woman of
wide business interests.

SUCCESSION: ART. 806

The most important variation noted by the contestants concerns that signing of
the certificate of acknowledgment (in Spanish) appended to the Codicil in
Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged
before a notary public (Art. 806). Now, the instrumental witnesses (who happen
to be the same ones who attested the will of 1950) asserted that after the codicil
had been signed by the testatrix and the witnesses at the San Pablo Hospital,
the same was signed and sealed by notary public Gimotea on the same
occasion. On the other hand, Gimotea affirmed that he did not do so, but
brought the codicil to his office, and signed and sealed it there. The variance
does not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon, the
tendency of the mind, in recalling past events, to substitute the usual and
habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed
the certification of acknowledgment in the presence of the testatrix and the
witnesses, does not affect the validity of the codicil. Unlike the Code of 1889
(Art. 699), the new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. A comparison
of Articles 805 and 806 of the new Civil Code reveals that while testator and
witnesses sign in the presence of each other, all that is thereafter required is
that "every will must be acknowledged before a notary public by the testator and
the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer
the authenticity of their signatures and the voluntariness of their actions in
executing the testamentary disposition. This was done in the case before us.
The subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses can not be said
to violate the rule that testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno
codem die ac tempore in eadem loco", and no reversible error was committed
by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code
does not contain words requiring that the testator and the witnesses should
acknowledge the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against
appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo,
Labrador, and Concepcion, JJ., concur.

10

SUCCESSION: ART. 806

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

11

SUCCESSION: ART. 806

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.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.

12

SUCCESSION: ART. 806

G.R. No. L-37453

May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,


vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO,
respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division,
1
promulgated on May 4, 1973 in CA G.R. No. 36523-R which reversed the
decision of the Court of First Instance of Rizal dated December 15, 1964 and
allowed the probate of the last will and testament of the deceased Isabel
Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago
filed a petition with the Court of First Instance of Rizal docketed as Special
Proceedings No. 3617, for the probate of a will alleged to have been executed
by the deceased Isabel Gabriel and designating therein petitioner as the
principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a
widow and without issue in the municipality of Navotas, province of Rizal her
place of residence, on June 7, 1961 at the age of eighty-five (85), having been
born in 1876. It is likewise not controverted that herein private respondent
Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the
deceased, and that private respondent, with her husband and children, lived with
the deceased at the latters residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog,
appears to have been executed in Manila on the 15th day of April, 1961, or
barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5)
pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the
deceased Isabel Gabriel appear at the end of the will on page four and at the left
margin of all the pages. The attestation clause, which is found on page four,
reads as follows:
PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming


mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng
aming mga pangalan sa ibaba nito, ay pagpapatutuo na
ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na
ang kasulatang ito na binubuo ng Limang Dahon (Five Pages)
pati na ang dahong ito, na siya niyang TESTAMENTO AT
HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan
ng nasabing testadora na si Isabel Gabriel ang nasabing
testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na
dahon (page four) at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on the left hand
margin of each and every page), sa harap ng lahat at bawat isa
sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing testadora, at sa harap ng lahat at bawat isa sa amin,
sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat
at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures
of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite
the same, under the heading "Tirahan", are their respective places of residence,
961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal,
for the two Gimpayas. Their signatures also appear on the left margin of all the
other pages. The WW is paged by typewritten words as follows: "Unang Dahon"
and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page
Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic
Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic
Church, all expenses to be paid from her estate; that all her obligations, if any,
be paid; that legacies in specified amounts be given to her sister, Praxides
Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial,
Numancia, Verena an surnamed Santiago. To herein private respondent
Lutgarda Santiago, who was described in the will by the testatrix as "aking
mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng
isang tunay na anak" and named as universal heir and executor, were
bequeathed all properties and estate, real or personal already acquired, or to be
acquired, in her testatrix name, after satisfying the expenses, debts and legacies
as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,
assailing the document purporting to be the will of the deceased on the following
grounds:

13

SUCCESSION: ART. 806

1. that the same is not genuine; and in the alternative


2. that the same was not executed and attested as required by
law;
3. that, at the time of the alleged execution of the purported wilt
the decedent lacked testamentary capacity due to old age and
sickness; and in the second alternative
4. That the purported WW was procured through undue and
improper pressure and influence on the part of the principal
beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After
trial, the court a quo rendered judgment, the summary and dispositive portions
of which read:
Passing in summary upon the grounds advanced by the
oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that
the purported will of the deceased was procured through undue
and improper pressure and influence on the part of the
petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention
that at the time of the alleged execution of the purported will, the
deceased lacked testamentary capacity due to old age and
sickness;
3. That sufficient and abundant evidence warrants conclusively
the fact that the purported will of the deceased was not
executed and attested as required by law;
4. That the evidence is likewise conclusive that the document
presented for probate, Exhibit 'F' is not the purported win
allegedly dictated by the deceased, executed and signed by
her, and attested by her three attesting witnesses on April 15,
1961.
WHEREFORE, Exhibit "F", the document presented for probate
as the last wig and testament of the deceased Isabel Gabriel is
here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent


Court, hence, the only issue decided on appeal was whether or not the will in
question was executed and attested as required by law. The Court of Appeals,
upon consideration of the evidence adduced by both parties, rendered the
decision now under review, holding that the will in question was signed and
executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of
the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the deceased
and of each other as required by law, hence allow ed probate.
3

Oppositor Rizalina Gabriel Gonzales moved for reconsideration


of the
4
aforesaid decision and such motion was opposed
by petitioner-appellant
5
Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda,
and on August 28, 1973, respondent Court, Former Special First Division, by
6
Resolution denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of
evidence shows that the supposed last wig and testament of
Isabel Gabriel was not executed in accordance with law
because the same was signed on several occasions, that the
testatrix did not sign the will in the presence of all the
instrumental witnesses did not sign the will in the presence of
each other.
The resolution of the factual issue raised in the motion for
reconsideration hinges on the appreciation of the evidence. We
have carefully re-examined the oral and documentary evidence
of record, There is no reason to alter the findings of fact in the
7
decision of this Court sought to be set aside.
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends
that respondent Court abused its discretion and/or acted without or in excess of
its jurisdiction in reverssing the findings of fact and conclusions of the trial court.
The Court, after deliberating on the petition but without giving due course
resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to
comment thereon, which comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and the arguments adduced in
8
the petition, as well as the Comment of private respondent thereon, We denied
9
the petition by Resolution on November 26, 1973, the question raised being
factual and for insufficient showing that the findings of fact by respondent Court
were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a
10
Motion for Reconsideration which private respondent answered by way of her

14

SUCCESSION: ART. 806


11

Comment or Opposition filed on January 15, 1974. A Reply and Rejoinder to


Reply followed. Finally, on March 27, 1974, We resolved to give due course to
the petition.

X. The Court of Appeals erred in reversing the decision of the trial court and
admitting to probate Exhibit "F", the alleged last will and testament of the
deceased Isabel Gabriel.

The petitioner in her brief makes the following assignment of errors:

It will be noted from the above assignments of errors that the same are
substantially factual in character and content. Hence, at the very outset, We
must again state the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals are not reviewable, the
same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30,
12
1970, 33 SCRA 737, 743) and Tapas vs. CA (L-22202, February 27; 1976, 69
13
SCRA 393),
and in the more recent cases of Baptisia vs. Carillo and CA
(L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of
Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of
Chan vs. CA, this Court said:

I. The respondent Court of Appeals erred in holding that the document, Exhibit
"F" was executed and attested as required by law when there was absolutely no
proof that the three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the
preparation and execution of the win Exhibit "F", was unexpected and
coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to
enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten
lines under the typewritten words "Pangalan" and "Tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the
same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was
incredible that Isabel Gabriel could have dictated the wilt Exhibit "F , without any
note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that
Matilde Orobia was not physically present when the Will Exhibit "F" was
allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions,
evasions, and misrepresentations of witnesses (subscribing and notary)
presented by the petitioner had been explained away, and that the trial court
erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so
far departed from the accepted and usual course of judicial proceedings, as to
call for an exercise of the power of supervision.

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then
Justice Recto, it has been well-settled that the jurisdiction of tills Court in cases
brought to us from the Court of Appeals is limited to reviewing and revising the
errors of law imputed to it, its findings of fact being conclusive. More specifically,
in a decision exactly a month later, this Court, speaking through the then Justice
Laurel, it was held that the same principle is applicable, even if the Court of
Appeals was in disagreement with the lower court as to the weight of the
evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by
substantive evidence are not reviewable on appeal by certiorari. Said findings of
the appellate court are final and cannot be disturbed by Us particularly because
its premises are borne out by the record or based upon substantial evidence and
what is more, when such findings are correct. Assignments of errors involving
factual issues cannot be ventilated in a review of the decision of the Court of
Appeals because only legal questions may be raised. The Supreme Court is not
at liberty to alter or modify the facts as set forth in the decision of the Court of
Appeals sought to be reversed. Where the findings of the Court of Appeals are
contrary to those of the trial court, a minute scrutiny by the Supreme Court is in
order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed
to consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of
Appeals erred in holding that the document, Exhibit "F", was executed and
attested as required by law when there was absolutely no proof that the three

15

SUCCESSION: ART. 806

instrumental witnesses were credible witnesses. She argues that the require.
ment in Article 806, Civil Code, that the witnesses must be credible is an
absolute requirement which must be complied with before an alleged last will
and testament may be admitted to probate and that to be a credible witness,
there must be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first
established, his testimony may not be favorably considered. Petitioner contends
that the term "credible" is not synonymous with "competent" for a witness may
be competent under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is further urged that the
term "credible" as used in the Civil Code should receive the same settled and
well- known meaning it has under the Naturalization Law, the latter being a
kindred legislation with the Civil Code provisions on wigs with respect to the
qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil
Code provides the qualifications of a witness to the execution of wills while
Article 821 sets forth the disqualification from being a witness to a win. These
Articles state:
Art. 820. Any person of sound mind and of the age of eighteen
years or more, and not blind, deaf or dumb, and able to read
and write, may be a witness to the execution of a will mentioned
in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially
or at any time during the trial as to his good standing in the community, his
reputation for trustworthythiness and reliableness, his honesty and uprightness
in order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18 years or
more) is shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is
able to read and write to the satisfaction of the Court, and that he has none of
the disqualifications under Article 821 of the Civil Code. We reject petitioner's
contention that it must first be established in the record the good standing of the

witness in the community, his reputation for trustworthiness and reliableness, his
honesty and uprightness, because such attributes are presumed of the witness
unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as
used in the Civil Code should be given the same meaning it has under the
Naturalization Law where the law is mandatory that the petition for naturalization
must be supported by two character witnesses who must prove their good
standing in the community, reputation for trustworthiness and reliableness, their
honesty and uprightness. The two witnesses in a petition for naturalization are
character witnesses in that being citizens of the Philippines, they personally
know the petitioner to be a resident of the Philippines for the period of time
required by the Act and a person of good repute and morally irreproachable and
that said petitioner has in their opinion all the qualifications necessary to become
a citizen of the Philippines and is not in any way disqualified under the
provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as
amended).
In probate proceedings, the instrumental witnesses are not character witnesses
for they merely attest the execution of a will or testament and affirm the
formalities attendant to said execution. And We agree with the respondent that
the rulings laid down in the cases cited by petitioner concerning character
witnesses in naturalization proceedings are not applicable to instrumental
witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental
witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are
competent and credible is satisfactorily supported by the evidence as found by
the respondent Court of Appeals, which findings of fact this Tribunal is bound to
accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.
It is true that under Article 805 of the New Civil Code, 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, While the
petitioner submits that Article 820 and 821 of the New Civil Code speak of the
competency of a witness due to his qualifications under the first Article and none
of the disqualifications under the second Article, whereas Article 805 requires
the attestation of three or more credible witnesses, petitioner concludes that the
term credible requires something more than just being competent and, therefore,

16

SUCCESSION: ART. 806

a witness in addition to being competent under Articles 820 and 821 must also
be a credible witness under Article 805.

County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
1010. (Words and Phrases, Vol. 10, p. 340).

Petitioner cites American authorities that competency and credibility of a witness


are not synonymous terms and one may be a competent witness and yet not a
credible one. She exacerbates that there is no evidence on record to show that
the instrumental witnesses are credible in themselves, that is, that they are of
good standing in the community since one was a family driver by profession and
the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a
housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the
testatrix But the relation of employer and employee much less the humble or
financial position of a person do not disqualify him to be a competent
testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100
Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).

As construed by the common law, a 'credible witness' to a will


means a 'competent witness.' Appeal of Clark, 95 A. 517, 114
Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).

Private respondent maintains that the qualifications of the three or more credible
witnesses mentioned in Article 805 of the Civil Code are those mentioned in
Article 820 of the same Code, this being obvious from that portion of Article 820
which says "may be Q witness to the execution of a will mentioned in Article 805
of this Code," and cites authorities that the word "credible" insofar as witnesses
to a will are concerned simply means " competent." Thus, in the case of Suntay
vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was
duly executed and that it was in existence at the time of, and not revoked before,
the death of the testator, still the provisions of the lost wig must be clearly and
distinctly proved by at least two credible witnesses. 'Credible witnesses' mean
competent witnesses and not those who testify to facts from or upon hearsay. "
emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the
Supreme Court held that "Section 620 of the same Code of Civil Procedure
provides that any person of sound mind, and of the age of eighteen years or
more, and not blind, deaf, or dumb and able to read and write, may be a witness
to the execution of a will. This same provision is reproduced in our New Civil
Code of 1950, under Art. 820. The relation of employer and employee, or being
a relative to the beneficiary in a win, does not disqualify one to be a witness to a
will. The main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is that said
witness must be credible, that is to say, his testimony may be entitled to
credence. There is a long line of authorities on this point, a few of which we may
cite:
A 'credible witness is one who is not is not to testify by mental
incapacity, crime, or other cause. Historical Soc of Dauphin

Expression 'credible witness' in relation to attestation of wins


means 'competent witness that is, one competent under the law
to testify to fact of execution of will. Vernon's Ann. Civ St. art.
8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60
S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a
will shall be attested by two credible witnesses means
competent; witnesses who, at the time of attesting the will, are
legally competent to testify, in a court of justice, to the facts
attested by subscribing the will, the competency being
determined as of the date of the execution of the will and not of
the timr it is offered for probate, Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills,
means competent witnesses that is, such persons as are not
legally disqualified from testifying in courts of justice, by reason
of mental incapacity, interest, or the commission of crimes, or
other cause excluding them from testifying generally, or
rendering them incompetent in respect of the particular subject
matter or in the particular suit. Hill vs. Chicago Title & Trust co
152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to
a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas
his credibility depends On the appreciation of his testimony and arises from the
belief and conclusion of the Court that said witness is telling the truth. Thus, in
the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a
witness is one thing, and it is another to be a credible witness, so credible that
the Court must accept what he says. Trial courts may allow a person to testify as
a witness upon a given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony." In fine, We state the
rule that the instrumental witnesses in Order to be competent must be shown to
have the qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be credible, that is

17

SUCCESSION: ART. 806

worthy of belief and entitled to credence, it is not mandatory that evidence be


first established on record that the witnesses have a good standing in the
community or that they are honest and upright or reputed to be trustworthy and
reliable, for a person is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must be competent and
their testimonies must be credible before the court allows the probate of the will
they have attested. We, therefore, reject petitioner's position that it was fatal for
respondent not to have introduced prior and independent proof of the fact that
the witnesses were "credible witnesses that is, that they have a good standing in
the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of
errors, petitioner disputes the findings of fact of the respondent court in finding
that the preparation and execution of the will was expected and not coincidental,
in finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three typewritten lines
under the typewritten words "pangalan" and "tinitirahan" were left blank shows
beyond cavil that the three attesting witnesses were all present in the same
occasion, in holding credible that Isabel Gabriel could have dictated the will
without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in
holding that the trial court gave undue importance to the picture takings as proof
that the will was improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the witnesses (subscribing
and notary) presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid
down that the findings of fact of the appellate court are binding and controlling
which We cannot review, subject to certain exceptions which We win consider
and discuss hereinafter. We are convinced that the appellate court's findings are
sufficiently justified and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso
and bringing all the witnesses without previous appointment for the preparation
and execution of the win and that it was coincidental that Atty. Paraiso was
available at the moment impugns the finding of the Court of Appeals that
although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions
to his office on April 15, 1961 was unexpected as there was no prior
appointment with him, but he explained that he was available for any business
transaction on that day and that Isabel Gabriel had earlier requested him to help
her prepare her will. The finding of the appellate court is amply based on the
testimony of Celso Gimpaya that he was not only informed on the morning of the
day that he witnessed the will but that it was the third time when Isabel Gabriel
told him that he was going to witness the making of her will, as well as the

testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya
to proceed to Isabel Gabriel's house which was nearby and from said house,
they left in a car to the lawyer's office, which testimonies are recited in the
respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and
his wife Maria Gimpaya obtained residence certificates a few days before Exhibit
"F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was
issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence
certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961.
The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and
one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified
that they would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the
office of Atty. Paraiso was planned by the deceased, which conclusion was
correctly drawn from the testimony of the Gimpaya spouses that they started
from the Navotas residence of the deceased with a photographer and Isabel
Gabriel herself, then they proceeded by car to Matilde Orobia's house in
Philamlife, Quezon City to fetch her and from there, all the three witnesses (the
Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about
ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous
to the day that. the will was executed on April 15, 1961, Isabel Gabriel had
requested him to help her in the execution of her will and that he told her that if
she really wanted to execute her will, she should bring with her at least the
Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty.
Paraiso) wanted a medical certificate from a physician notwithstanding the fact
that he believed her to be of sound and disposition mind. From this evidence,
the appellate court rightly concluded, thus: "It is, therefore, clear that the
presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya
and Maria Gimpaya including the photographer in the law office of Atty. Paraiso
was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to
type such data into the document Exhibit ' L which the petitioner assails as
contradictory and irreconcilable with the statement of the Court that Atty. Paraiso
was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel

18

SUCCESSION: ART. 806

Gabriel and this was corroborated by Atty. Paraiso himself who testified that it
was only on said occasion that he received such list from Isabel Gabriel, We
cannot agree with petitioner's contention. We find no contradiction for the,
respondent Court held that on the occasion of the will making on April 15, 1961,
the list was given immediately to Atty. Paraiso and that no such list was given
the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and
residence certificates of the witnesses on a prior occasion or on the very
occasion and date in April 15, 1961 when the will was executed, is of no
moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion,
April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the
testatrix and the witnesses before a notary public, the same is a public
document executed and attested through the intervention of the notary public
and as such public document is evidence of the facts in clear, unequivocal
manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more
than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such
evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the
three typewritten lines under the typewritten words "pangalan ' and "tinitirahan"
were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion merits Our approval because tills conclusion is
supported and borne out by the evidence found by the appellate court, thus: "On
page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.
date issued" and place issued the only name of Isabel Gabriel with Residence
Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal
appears to be in typewritten form while the names, residence tax certificate
numbers, dates and places of issuance of said certificates pertaining to the three
(3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides
with Atty. Paraiso's even the sale must be made to close relatives; and the
seventh was the appointment of the appellant Santiago as executrix of the will
without bond. The technical description of the properties in paragraph 5 of
Exhibit F was not given and the numbers of the certificates of title were only
supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the
properties disposed and the docket number of a special proceeding are
indicated which Atty. Paraiso candidly admitted were supplied by him,
whereupon petitioner contends that it was incredible that Isabel Gabriel could
have dictated the will Exhibit "F" without any note or document to Atty. Paraiso,
considering that Isabel Gabriel was an old and sickly woman more than eighty-

one years old and had been suffering from a brain injury caused by two severe
blows at her head and died of terminal cancer a few weeks after the execution of
Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary
capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of
Appeals that the testatrix dictated her will without any note or memorandum
appears to be fully supported by the following facts or evidence appearing on
record. Thus, Isabel Gabriel, despite her age, was particularly active in her
business affairs as she actively managed the affairs of the movie business
ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days
before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her
deceased husband Eligio Naval. The text of the win was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree
with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both
testimonial and documentary is, according to the respondent court,
overwhelming that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very
clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia
was physically present when the will was signed by Isabel Gabriel on April '15,
1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial
court's conclusion that Orobia's admission that she gave piano lessons to the
child of the appellant on Wednesdays and Saturdays and that April 15, 1961
happened to be a Saturday for which reason Orobia could not have been
present to witness the will on that day is purely conjectural. Witness Orobia
did not admit having given piano lessons to the appellant's child every
Wednesday and Saturday without fail. It is highly probable that even if April 15,
1961 were a Saturday, she gave no piano lessons on that day for which reason
she could have witnessed the execution of the will. Orobia spoke of occasions
when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons
on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya that Matilde was present on April 15, 1961 and that she signed the
attestation clause to the will and on the left-hand margin of each of the pages of
the will, the documentary evidence which is the will itself, the attestation clause
and the notarial acknowledgment overwhelmingly and convincingly prove such

19

SUCCESSION: ART. 806

fact that Matilde Orobia was present on that day of April 15, 1961 and that she
witnessed the will by signing her name thereon and acknowledged the same
before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which
Matilde Orobia signed is the best evidence as to the date of signing because it
preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is
made for the purpose of preserving in permanent form a record of the facts
attending the execution of the will, so that in case of failure in the memory of the
subscribing witnesses, or other casualty they may still be proved. (Thompson on
Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in
holding that the trial court gave undue importance to the picture-takings as proof
that the win was improperly executed, We agree with the reasoning of the
respondent court that: "Matilde Orobia's Identification of the photographer as
"Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr.,
is at worst a minor mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation of the will. The fact that
Miss Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely
detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken
which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya.
" Further, the respondent Court correctly held: "The trial court gave undue
importance to the picture takings, jumping therefrom to the conclusion that the
will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by
Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were
quite emphatic and positive when they spoke of this occasion. Hence, their
Identification of some photographs wherein they all appeared along with Isabel
Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picturetaking was disclosed at the cross examination of Celso Gimpaya. But this was
explained by Atty. Paraiso as a reenactment of the first incident upon the
insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not pointless. What was
important was that the will was duly executed and witnessed on the first
occasion on April 15, 1961 , " and We agree with the Court's rationalization in
conformity with logic, law and jurisprudence which do not require picture-taking
as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and
misrepresentations of witnesses in their respective testimonies before the trial
court. On the other hand, the respondent Court of Appeals held that said

contradictions, evasions and misrepresentations had been explained away.


Such discrepancies as in the description of the typewriter used by Atty. Paraiso
which he described as "elite" which to him meant big letters which are of the
type in which the will was typewritten but which was Identified by witness Jolly
Bugarin of the N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when actually it was
Benjamin Cifra, Jr. these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human memory such
that by themselves would not alter the probative value of their testimonies on the
true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win be Identical and
coinciding with each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human experience teach us
"that contradictions of witnesses generally occur in the details of certain
incidents, after a long series of questionings, and far from being an evidence of
falsehood constitute a demonstration of good faith. In as much as not all those
who witness an incident are impressed in like manner, it is but natural that in
relating their impressions, they should not agree in the minor details; hence the
contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not
have been disturbed by the respondent appellate court because the trial court
was in a better position to weigh and evaluate the evidence presented in the
course of the trial. As a general rule, petitioner is correct but it is subject to wellestablished exceptions. The right of the Court of Appeals to review, alter and
reverse the findings of the trial court where the appellate court, in reviewing the
evidence has found that facts and circumstances of weight and influence have
been ignored and overlooked and the significance of which have been
misinterpreted by the trial court, cannot be disputed. Findings of facts made by
trial courts particularly when they are based on conflicting evidence whose
evaluation hinges on questions of credibility of contending witnesses hes
peculiarly within the province of trial courts and generally, the appellate court
should not interfere with the same. In the instant case, however, the Court of
Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said
that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel
dictated her will without any note or document to Atty. Paraiso;" that the trial
court's conclusion that Matilde Orobia could not have witnessed anybody
signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing
it, is a conclusion based not on facts but on inferences; that the trial court gave
undue importance to the picture-takings, jumping therefrom to the conclusion
that the will was improperly executed and that there is nothing in the entire
record to support the conclusion of the court a quo that the will signing occasion
was a mere coincidence and that Isabel Gabriel made an appointment only with

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Matilde Orobia to witness the signing of her will, then it becomes the duty of the
appellate court to reverse findings of fact of the trial court in the exercise of its
appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the
judgment of the Court of Appeals is conclusive as to the facts and cannot be
reviewed by the Supreme Court. Again We agree with the petitioner that among
the exceptions are: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion;
(4) when the presence of each other as required by law. " Specifically, We affirm
that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia,
Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a
car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in
the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving
at the latter's office and told the lawyer that she wanted her will to be made; that
Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the
will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a
language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed
the will and after finishing the document, he read it to her and she told him that it
was alright; that thereafter, Isabel Gabriel signed her name at the end of the will
in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and
Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter
Matilde Orobia attested the will by signing her name at the end of the attestation
clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the
presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and
Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the
document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya;
that Maria Gimpaya followed suit, signing her name at the foot of the attestation
clause and at the left-hand margin of every page in the presence of Isabel
Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial
Register. On the occasion of the execution and attestation of the will, a
photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the
testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken
on said occasion of the signing of the will, and another, Exhibit "H", showing
Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to
bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her
witnesses for he did not know beforehand the Identities of the three attesting
witnesses until the latter showed up at his law office with Isabel Gabriel on April
15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down in

his own hand the date appearing on page 5 of Exhibit "F" dissipates any
lingering doubt that he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible
that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or
document to Atty. Paraiso as against the contention of petitioner that it was
incredible. This ruling of the respondent court is fully supported by the evidence
on record as stated in the decision under review, thus: "Nothing in the record
supports the trial court's unbelief that Isabel Gabriel dictated her will without any
note or document to Atty. Paraiso. On the contrary, all the three attesting
witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso
and that other than the piece of paper that she handed to said lawyer she had
no note or document. This fact jibes with the evidence which the trial court
itself believed was unshaken that Isabel Gabriel was of sound disposing
memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but
quite simple. The first was Isabel Gabriel's wish to be interred according to
Catholic rites the second was a general directive to pay her debts if any; the
third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago
and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee the fifth was the institution of the petitioner-appellant,
Lutgarda Santiago as the principal heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the remainder of her estate which she
willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on
a misapprehension of facts; (5) when the findings of fact are conflicting, (6)
when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee.
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola
Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R.
No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall
within any of the exceptions enumerated above. We likewise hold that the
findings of fact of the respondent appellate court are fully supported by the
evidence on record. The conclusions are fully sustained by substantial evidence.
We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting. Hence, the wellestablished rule that the decision of the Court of Appeals and its findings of fact
are binding and conclusive and should not be disturbed by this Tribunal and it
must be applied in the case at bar in its full force and effect, without qualification
or reservation. The above holding simply synthesize the resolutions we have

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heretofore made in respect ' to petitioner's previous assignments of error and to


which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as
We find the respondent Court acted properly and correctly and has not departed
from the accepted and usual course of judicial proceedings as to call for the
exercise of the power of supervision by the Supreme Court, and as We find that
the Court of Appeals did not err in reversing the decision of the trial court and
admitting to probate Exhibit "F", the last will and testament of the deceased
Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and
evaluation of the evidence on record is unassailable that: "From the welter of
evidence presented, we are convinced that the will in question was executed on
April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya signing and witnessing the same in the the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the original to Isabel
Gabriel and retained the other copies for his file and notarial register. A few days
following the signing of the will, Isabel Gabriel, Celso Gimpaya and another
photographer arrived at the office of Atty. Paraiso and told the lawyer that she
wanted another picture taken because the first picture did not turn out good. The
lawyer told her that this cannot be done because the will was already signed but
Isabel Gabriel insisted that a picture be taken, so a simulated signing was
performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies
of the witnesses for the proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar, the three instrumental
witnesses who constitute the best evidence of the will making have testified in
favor of the probate of the will. So has the lawyer who prepared it, one learned
in the law and long in the practice thereof, who thereafter notarized it. All of them
are disinterested witnesses who stand to receive no benefit from the testament.
The signatures of the witnesses and the testatrix have been identified on the will
and there is no claim whatsoever and by anyone, much less the petitioner, that
they were not genuine. In the last and final analysis, the herein conflict is factual
and we go back to the rule that the Supreme Court cannot review and revise the
findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.

Teehankee, Makasiar, De Castro and Herrera, JJ., concur.

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G.R. No. L-51546

January 28, 1980

JOSE ANTONIO GABUCAN, petitioner-appellant,


vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA
G. ENCLONAR, respondents-appellees.
Ignacio A. Calingin for appellant.
AQUINO, J.:
This case is about the dismissal of a petition for the probate of a notarial will on
the ground that it does not bear a thirty-centavo documentary stamp.
The Court of First Instance of Camiguin in its "decision" of December 28, 1977
in Special Proceeding No. 41 for the probate of the will of the late Rogaciano
Gabucan, dismissed the proceeding (erroneously characterizes as an "action")
The proceeding was dismissed because the requisite documentary stamp was
not affixed to the notarial acknowledgment in the will and, hence, according to
respondent Judge, it was not admissible in evidence, citing section 238 of the
Tax Code, now section 250 of the 1977 Tax Code, which reads:
SEC. 238. Effect of failure to stamp taxable document. An
instrument, document, or paper which is required by law to be
stamped and which has been signed, issued, accepted, or
transferred without being duly stamped, shall not be recorded,
nor shall it or any copy thereof or any record of transfer of the
same be admitted or used in evidence in any court until the
requisite stamp or stamps shall have been affixed thereto and
cancelled.
No notary public or other officer authorized to administer oaths
shall add his jurat or acknowledgment to any document subject
to documentary stamp tax unless the proper documentary
stamps are affixed thereto and cancelled.
The probate court assumed that the notarial acknowledgment of the said will is
subject to the thirty-centavo documentary stamp tax fixed in section 225 of the
Tax Code, now section 237 of the 1977 Tax Code.
Respondent Judge refused to reconsider the dismissal in spite of petitioner's
manifestation that he had already attached the documentary stamp to the

original of the will. (See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17 SCRA
482, 486.)
The case was brought to this Court by means of a petition for mandamus to
compel the lower court to allow petitioner's appeal from its decision. In this
Court's resolution of January 21, 1980 the petition for mandamus was treated in
the interest of substantial and speedy justice as an appeal under Republic Act
No. 5440 as well as a special civil action of certiorari under Rule 65 of the Rules
of Court.
We hold that the lower court manifestly erred in declaring that, because no
documentary stamp was affixed to the will, there was "no will and testament to
probate" and, consequently, the alleged "action must of necessity be
dismissed".
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.
That procedure may be implied from the provision of section 238 that the nonadmissibility of the document, which does not bear the requisite documentary
stamp, subsists only "until the requisite stamp or stamps shall have been affixed
thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the time the
taxable document is presented in evidence (Del Castillo vs. Madrilena 49 Phil.
749). If the promissory note does not bear a documentary stamp, the court
should have allowed plaintiff's tender of a stamp to supply the deficiency.
(Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs.
Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document
does not invalidate such document. See Cia. General de Tabacos vs.
Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16
Phil. 403, 405-6.)
WHEREFORE, the lower court's dismissal of the petition for probate is reversed
and set aside. It is directed to decide the case on the merits in the light of the
parties' evidence. No costs.
SO ORDERED.
Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ. concur.

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