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SUCCESSION: ART.

809

G.R. No. 74695

September 14, 1993

three instrumental witnesses (same as those of the notarial will) and the notary
public who followed the reading using their own copies.

In the Matter of the Probate of the Last Will and Testament of the Deceased
Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
1

Before us is an appeal from the Decision dated 11 April 1986 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
2
which affirmed the Order dated 27 June 1983 of the Regional Trial Court of
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Sta. Cruz, Laguna, admitting to probate the last will and testament with codicil
of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner)
and expressly revoked a previously executed holographic will at the time
awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz,
Laguna.
As testified to by the three instrumental witnesses, the notary public and by
private respondent who were present at the execution, the testator did not read
the final draft of the will himself. Instead, private respondent, as the lawyer who
drafted the eight-paged document, read the same aloud in the presence of the
testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9
December 1977. On the 29th day of the same month, a codicil entitled
"Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin
na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing
some dispositions in the notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will, the
testator did not personally read the final draft of the codicil. Instead, it was
private respondent who read it aloud in his presence and in the presence of the

A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with the
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Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.
Petitioner, in turn, filed an Opposition on the following grounds: that the will
sought to be probated was not executed and attested as required by law; that
the testator was insane or otherwise mentally incapacitated to make a will at the
time of its execution due to senility and old age; that the will was executed under
duress, or influence of fear and threats; that it was procured by undue and
improper pressure and influence on the part of the beneficiary who stands to get
the lion's share of the testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in
the Opposition, a Probate Order was issued on 27 June 1983 from which an
appeal was made to respondent court. The main thrust of the appeal was that
the deceased was blind within the meaning of the law at the time his "Huling
Habilin" and the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with, probate
of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with
the following findings: that Brigido Alvarado was not blind at the time his last will
and codicil were executed; that assuming his blindness, the reading requirement
of Art. 808 was substantially complied with when both documents were read
aloud to the testator with each of the three instrumental witnesses and the
notary public following the reading with their respective copies of the
instruments. The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its purpose of
making known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for
purpose of Art, 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article complied
with?
Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3) feet"
by reason of the glaucoma which he had been suffering from for several years
and even prior to his first consultation with an eye specialist on
14 December 1977.

SUCCESSION: ART. 809

The point of dispute is whether the foregoing circumstances would qualify


Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will
and codicil were executed, he can be so considered within the scope of the term
as it is used in Art. 808. To support his stand, petitioner presented before the
trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the
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Institute of Opthalmology (Philippine Eye Research Institute), the contents of
which were interpreted in layman's terms by Dr. Ruperto Roasa, whose
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expertise was admitted by private respondent.
Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet, he could no longer
read either printed or handwritten matters as of 14 December 1977, the day of
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his first consultation.
On the other hand, the Court of Appeals, contrary to the medical testimony, held
that the testator could still read on the day the will and the codicil were executed
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but chose not to do so because of "poor eyesight." Since the testator was still
capable of reading at that time, the court a quo concluded that Art. 808 need not
be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable
of reading at the time his will and codicil were prepared, the fact remains and
this was testified to by his witnesses, that Brigido did not do so because of his
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"poor,"
"defective,"
or "blurred"
vision making it necessary for private
respondent to do the actual reading for him.
13

The following pronouncement in Garcia vs. Vasquez provides an insight into


the scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but
also to those who, for one reason or another, are "incapable of reading the(ir)
will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his

will and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it is
used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so
confortably with his instructions. Hence, to consider his will as validly executed
and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall
be read twice; once, by one of the instrumental witnesses and, again, by the
notary public before whom the will was acknowledged. The purpose is to make
known to the incapacitated testator the contents of the document before signing
and to give him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent) who
drafted the eight-paged will and the five-paged codicil who read the same aloud
to the testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and
that the single reading suffices for purposes of the law. On the other hand,
petitioner maintains that the only valid compliance or compliance to the letter
and since it is admitted that neither the notary public nor an instrumental witness
read the contents of the will and codicil to Brigido, probate of the latter's will and
codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being
that the solemnities surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never intended to be so rigid
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and inflexible as to destroy the testamentary privilege.
In the case at bar, private respondent read the testator's will and codicil aloud in
the presence of the testator, his three instrumental witnesses, and the notary
public. Prior and subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions. Only then did the
signing and acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to
the "Huling Habilin," the day of the execution was not the first time that Brigido

SUCCESSION: ART. 809

had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes
even prior to 5 November 1977 when Atty. Rino went to the testator's residence
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precisely for the purpose of securing his conformity to the draft.
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free
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will. Brigido answered in the affirmative.
With four persons following the
reading word for word with their own copies, it can be safely concluded that the
testator was reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses were persons known to
the testator, one being his physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in order
to insure the authenticity of the will, the formal imperfections should be brushed
aside when they do not affect its purpose and which, when taken into account,
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may only defeat the testator's will.
As a final word to convince petitioner of the propriety of the trial court's Probate
Order and its affirmance by the Court of Appeals, we quote the following
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pronouncement in Abangan v. Abangan, to wit:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid the
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's
will, must be disregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms
in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast
these aside fro the mere reason that a legal requirement intended for his
protection was not followed strictly when such compliance had been rendered
unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance suffices where the purpose
has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent
Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of
time that this case has remained pending, this decision is immediately
executory. Costs against petitioner.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

SUCCESSION: ART. 809

G.R. No. 103554

May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN


CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented
herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA,
NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on
certiorari is the issue of whether or not the attestation clause contained in the
last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life, executed a last
will and testament at his residence in Talisay, Cebu before three attesting
witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa.
The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a
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notary public, Atty. Filoteo Manigos, in the preparation of that last will. It was
declared therein, among other things, that the testator was leaving by way of
legacies and devises his real and personal properties to Presentacion Gaviola,
Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
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Marcosa Alcantara, all of whom do not appear to be related to the testator.
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court
of First Instance of Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason to another. On
May 29, 1980, the testator passed away before his petition could finally be heard
3
by the probate court. On February 25, 1981, Benoni Cabrera, on of the
legatees named in the will, sough his appointment as special administrator of

the testator's estate, the estimated value of which was P24,000.00, and he was
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so appointed by the probate court in its order of March 6, 1981.
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition, entitled "In the Matter of the Intestate Estate of
Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before
Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982,
herein petitioners had their said petition intestate proceeding consolidated with
Special Proceeding No. 3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the Testator's will and the
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appointment of a special administrator for his estate.
Benoni Cabrera died on February 8, 1982 hence the probate court, now known
as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued
an order for the return of the records of Special Proceeding No. 3965-R to the
archives since the testate proceeding for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually
assigned to Branch XII of the Regional Trial Court of Cebu where it remained
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until the conclusion of the probate proceedings.
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the testator
was already in the poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as to the
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genuineness of the signature of the testator therein.
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public Atty. Filoteo Manigos, testified that the testator executed the will in
question in their presence while he was of sound and disposing mind and that,
contrary to the assertions of the oppositors, Mateo Caballero was in good health
and was not unduly influenced in any way in the execution of his will. Labuca
also testified that he and the other witnesses attested and signed the will in the
presence of the testator and of each other. The other two attesting witnesses
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were not presented in the probate hearing as the had died by then.
On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the Court

SUCCESSION: ART. 809

that indeed Mateo Caballero executed the Last Will and


Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the
probate of his Will during his lifetime when he caused the filing
of the original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will. At the
start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it would seem that despite
their avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last
Will and Testament of Mateo Caballero and that it was executed
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in accordance with all the requisites of the law.
Undaunted by the said judgment of the probate court, petitioners elevated the
case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein
that the will in question is null and void for the reason that its attestation clause
is fatally defective since it fails to specifically state that the instrumental
witnesses to the will witnessed the testator signing the will in their presence and
that they also signed the will and all the pages thereof in the presence of the
testator and of one another.
10

On October 15, 1991, respondent court promulgated its decision affirming that
of the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy complied
with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to
be defective is "we do certify that the testament was read by
him and the attestator, Mateo Caballero, has published unto us
the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of
the upper part of each page, as his Last Will and Testament,
and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin in
the presence of the said testator and in the presence of each
and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence


need be presented to indicate the meaning that the said will was
signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language
of the law would have it that the testator signed the will "in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely
or ideally perfect in accordance with the wordings of Art. 805 but
(sic) the phrase as formulated is in substantial compliance with
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the requirement of the law."
Petitioners moved for the reconsideration of the said ruling of respondent court,
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but the same was denied in the latter's resolution of January 14, 1992, hence
this appeal now before us. Petitioners assert that respondent court has ruled
upon said issue in a manner not in accord with the law and settled jurisprudence
on the matter and are now questioning once more, on the same ground as that
raised before respondent court, the validity of the attestation clause in the last
will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after
some prefatory observations which we feel should be made in aid of the
rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree
13
the disposition of his estate after his death.
Under the Civil Code, there are
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two kinds of wills which a testator may execute. the first kind is the ordinary or
attested will, the execution of which is governed by Articles 804 to 809 of the
Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.

SUCCESSION: ART. 809

The attestation should state the number of pages used upon


which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of
the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a
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testator and the attesting witness. hence it is likewise known as notarial will.
Where the attestator is deaf or deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by
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the notary public before whom it is acknowledged.
The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the testator himself. This kind of will,
unlike the ordinary type, requires no attestation by witnesses. A common
requirement in both kinds of will is that they should be in writing and must have
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been executed in a language or dialect known to the testator.
However, in the case of an ordinary or attested will, its attestation clause need
not be written in a language or dialect known to the testator since it does not
form part of the testamentary disposition. Furthermore, the language used in the
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attestation clause likewise need not even be known to the attesting witnesses.
The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
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manner of the execution the same. It is a separate memorandum or record of
the facts surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the essential
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formalities required by law has been observed. It is made for the purpose of
preserving in a permanent form a record of the facts that attended the execution
of a particular will, so that in case of failure of the memory of the attesting
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witnesses, or other casualty, such facts may still be proved.

Under the third paragraph of Article 805, such a clause, the complete lack of
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which would result in the invalidity of the will, should state (1) the number of
the pages used upon which the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its pages, and that said
witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or omission
of one or some of its pages and to prevent any increase or decrease in the
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pages;
whereas the subscription of the signature of the testator and the
attesting witnesses is made for the purpose of authentication and identification,
and thus indicates that the will is the very same instrument executed by the
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testator and attested to by the witnesses.
Further, by attesting and subscribing to the will, the witnesses thereby declare
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the due execution of the will as embodied in the attestation clause.
The
attestation clause, therefore, provide strong legal guaranties for the due
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execution of a will and to insure the authenticity thereof. As it appertains only
27
to the witnesses and not to the testator, it need be signed only by them.
Where it is left unsigned, it would result in the invalidation of the will as it would
be possible and easy to add the clause on a subsequent occasion in the
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absence of the testator and its witnesses.
In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:
The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with
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respect to the formalities in the execution of wills. . . .
2. An examination of the last will and testament of Mateo Caballero shows that it
is comprised of three sheets all of which have been numbered correlatively, with
the left margin of each page thereof bearing the respective signatures of the

SUCCESSION: ART. 809

testator and the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in question, on
the other hand, is recited in the English language and is likewise signed at the
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end thereof by the three attesting witnesses hereto. Since it is the proverbial
bone of contention, we reproduce it again for facility of reference:

What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will
and all its pages in the presence of the three attesting witnesses and states as
well the number of pages that were used, the same does not expressly state
therein the circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each other.

We, the undersigned attesting Witnesses, whose Residences


and postal addresses appear on the Opposite of our respective
names, we do hereby certify that the Testament was read by
him and the testator, MATEO CABALLERO; has published unto
us the foregoing Will consisting of THREE PAGES, including
the Acknowledgment, each page numbered correlatively in the
letters on the upper part of each page, as his Last Will and
Testament and he has the same and every page thereof, on the
spaces provided for his signature and on the left hand margin,
in the presence of the said testator and in the presence of each
and all of us.

The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the words
"in the presence of the testator and in the presence of each and all of us" may,
at first blush, appear to likewise signify and refer to the witnesses, it must,
however, be interpreted as referring only to the testator signing in the presence
of the witnesses since said phrase immediately follows the words "he has
signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another.

It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is the act of
senses, while subscription is the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the
31
names of the witnesses, for the sole purpose of identification.
32

In Taboada vs. Rizal, we clarified that attestation consists in witnessing the


testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially expressed
in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article 805
of the Civil Code for attestation clauses, fails to specifically state the fact that the
attesting witnesses the testator sign the will and all its pages in their presence
and that they, the witnesses, likewise signed the will and every page thereof in
the presence of the testator and of each other. We agree.

It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of
the will that is here sought to be admitted to probate. Petitioners are correct in
pointing out that the aforestated defect in the attestation clause obviously cannot
be characterized as merely involving the form of the will or the language used
therein which would warrant the application of the substantial compliance rule,
as contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein shall
not render the will invalid if it is not proved that the will was in
fact executed and attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witness affixed
their respective signatures in the presence of the testator and of each other
since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator and of
each other. The execution of a will is supposed to be one act so that where the
testator and the witnesses sign on various days or occasions and in various
33
combinations, the will cannot be stamped with the imprimatur of effectivity.

SUCCESSION: ART. 809


34

We believe that the further comment of former Justice J.B.L. Reyes regarding
Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures
appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are
facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether
all persons required to sign did so in the presence of each other
must substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections
must only be with respect to the form of the attestation or the language
employed therein. Such defects or imperfections would not render a will invalid
should it be proved that the will was really executed and attested in compliance
with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination
of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally
omits the fact that the attesting witnesses signed each and every page of the will
35
in the presence of the testator and of each other.
In such a situation, the
defect is not only in the form or language of the attestation clause but the total
absence of a specific element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect complained of in the
present case since there is no plausible way by which we can read into the
questioned attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the testator of the
will and all of its pages and that said instrumental witnesses also signed the will
and every page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be
revoked or relied on by respondents since it presupposes that the defects in the
attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned
or clearly inferred that the acts not stated in the omitted textual requirements

were actually complied within the execution of the will. In other words, defects
must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed
by the attesting witnesses can be supplied by only extrinsic evidence thereof,
since an overall appreciation of the contents of the will yields no basis
whatsoever from with such facts may be plausibly deduced. What private
respondent insists on are the testimonies of his witnesses alleging that they saw
the compliance with such requirements by the instrumental witnesses, oblivious
of the fact that he is thereby resorting to extrinsic evidence to prove the same
and would accordingly be doing by the indirection what in law he cannot do
directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed in
resolving issues centering on compliance with the legal formalities required in
the execution of wills. The formal requirements were at that time embodied
primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said
section was later amended by Act No. 2645, but the provisions respecting said
formalities found in Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid
36
down in the case of Abangan vs. Abangan, where it was held that the object of
the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will,
hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
37
38
disregarded. The subsequent cases of Avera vs. Garcia, Aldaba vs. Roque,
39
40
Unson vs. Abella, Pecson vs. Coronel, Fernandez vs. Vergel de Dios, et al.,
41
42
and Nayve vs. Mojal, et al. all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases of
43
44
In the Matter of the Estate of Saguinsin, In re Will of Andrada, Uy Coque vs.
45
46
47
Sioca, In re Estate of Neumark, and Sano vs. Quintana.

SUCCESSION: ART. 809


48

Gumban vs. Gorecho, et al., provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case of
Gumban, the attestation clause had failed to state that the witnesses signed the
will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court
beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will of Andrada
[1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43
Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841),
and ending with Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases
beginning with Abangan vs. Abangan ([1919], 40 Phil., 476),
continuing through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil.,
152). In its last analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses
signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra,
was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the attestation
clause must estate the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act cannot
be proved by the mere exhibition of the will, if it is not stated
therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved
also by the mere examination of the signatures appearing on
the document itself, and the omission to state such evident facts
does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases;
seldom do they admit inconsistency in doctrine. Yet here,
unless aided impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If we rely on
one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three


outstanding points may be mentioned. In the first place, the
Mojal, decision was concurred in by only four members of the
court, less than a majority, with two strong dissenting opinions;
the Quintana decision was concurred in by seven members of
the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated
in December, 1925; the Quintana decision was thus subsequent
in point of time. And in the third place, the Quintana decision is
believed more nearly to conform to the applicable provisions of
the law.
The right to dispose of property by will is governed entirely by
statute. The law of the case is here found in section 61 of the
Code of Civil Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will . . . shall be
valid . . . unless . . .." It is further provided in the same section
that "The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that
"The will shall be disallowed in either of the following case: 1. If
not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative
intention. It is not within the province of the courts to disregard
the legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the
Court that once more appeared to revive the seeming diversity of views that was
49
earlier threshed out therein. The cases of Quinto vs. Morata, Rodriguez vs.
50
51
52
Alcala, Enchevarria vs. Sarmiento, and Testate Estate of Toray went the
53
way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,
54
55
Rey vs. Cartagena, De Ticson vs. De Gorostiza, Sebastian vs. Panganiban,
56
57
58
59
Rodriguez vs. Yap, Grey vs. Fabia, Leynez vs. Leynez, Martir vs. Martir,

SUCCESSION: ART. 809


60

61

Alcala
vs.
De
Villa,
Sabado
vs.
62
63
64
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, veered away from
the strict interpretation rule and established a trend toward an application of the
liberal view.

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
65
of article 829."

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

The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer
any puzzle or difficulty, nor does it open the door to serious consequences. The
later decisions do tell us when and where to stop; they draw the dividing line
with precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They
only permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results."

The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the Philippines had previously
upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance
therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily restrained the freedom of the
testator in disposing of his property.
However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of the
formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and
Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618 of
the Code of Civil Procedure before its amendment by Act No.
2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed
Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery,
or fraud, or undue and improper pressure and
influence, defects and imperfections in the form
of attestation or in the language used therein

66

It may thus be stated that the rule, as it now stands, is that omissions which can
be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the invalidation of
67
the attestation clause and ultimately, of the will itself.
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero) and
to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate
of Mateo Caballero) as an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

10

SUCCESSION: ART. 809

G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitionerappellee,


vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of
First Instance of Samar, admitting to probate the will allegedly executed by
Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally
defective, because its attestation clause is not signed by the attesting witnesses.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is 'a memorandum of the facts attending the execution of the
will' required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on
the left-hand margin conform substantially to the law and may be deemed as
their signatures to the attestation clause. This is untenable, because said
signatures are in compliance with the legal mandate that the will be signed on
the left-hand margin of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as sufficient, it would be easy
to add such clause to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in
question denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

11

SUCCESSION: ART. 809

G.R. No. L-36033

November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF


DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern
Leyte, (Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:

to deliberate on any step to be taken as a result of the disallowance of the will.


He also asked that the ten-day period required by the court to submit the names
of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate
of the will. However, the motion together with the previous manifestation and/or
motion could not be acted upon by the Honorable Ramon C. Pamatian due to
his transfer to his new station at Pasig, Rizal. The said motions or incidents were
still pending resolution when respondent Judge Avelino S. Rosal assumed the
position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special
administrator.

This is a petition for review of the orders issued by the Court of First Instance of
Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the
Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased;
Apolonio Taboada, Petitioner", which denied the probate of the will, the motion
for reconsideration and the motion for appointment of a special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as
the manifestation and/or motion filed ex parte. In the same order of denial, the
motion for the appointment of special administrator was likewise denied because
of the petitioner's failure to comply with the order requiring him to submit the
names of' the intestate heirs and their addresses.

In the petition for probate filed with the respondent court, the petitioner attached
the alleged last will and testament of the late Dorotea Perez. Written in the
Cebuano-Visayan dialect, the will consists of two pages. The first page contains
the entire testamentary dispositions and is signed at the end or bottom of the
page by the testatrix alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which contains the attestation clause
and the acknowledgment is signed at the end of the attestation clause by the
three (3) attesting witnesses and at the left hand margin by the testatrix.

The petitioner decided to file the present petition.

Since no opposition was filed after the petitioner's compliance with the
requirement of publication, the trial court commissioned the branch clerk of court
to receive the petitioner's evidence. Accordingly, the petitioner submitted his
evidence and presented Vicente Timkang, one of the subscribing witnesses to
the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the
questioned order denying the probate of the will of Dorotea Perez for want of a
formality in its execution. In the same order, the petitioner was also required to
submit the names of the intestate heirs with their corresponding addresses so
that they could be properly notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex parte praying for a thirty-day period within which

For the validity of a formal notarial will, does Article 805 of the Civil Code require
that the testatrix and all the three instrumental and attesting witnesses sign at
the end of the will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to

12

SUCCESSION: ART. 809

write his name, under his express direction, in the presence of


the instrumental witnesses, and that the lacier witnesses and
signed the will and the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require
that, for a notarial will to be valid, it is not enough that only the testatrix signs at
the "end" but an the three subscribing witnesses must also sign at the same
place or at the end, in the presence of the testatrix and of one another because
the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where
the end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code
does not make it a condition precedent or a matter of absolute necessity for the
extrinsic validity of the wig that the signatures of the subscribing witnesses
should be specifically located at the end of the wig after the signature of the
testatrix. He contends that it would be absurd that the legislature intended to
place so heavy an import on the space or particular location where the
signatures are to be found as long as this space or particular location wherein
the signatures are found is consistent with good faith and the honest frailties of
human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or
signed at its end by the testator himself or by the testator's name written by
another person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation
consists in witnessing the testator's execution of the will in order to see and take
note mentally that those things are, done which the statute requires for the
execution of a will and that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of Identification of such paper as the will which was
executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view


that the will in this case was subscribed in a manner which fully satisfies the
purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page
of the will attested not only to the genuineness of the signature of the testatrix
but also the due execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial
departure from the usual forms should be ignored, especially where the
authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective
permeating the provisions on the law on wills in this project consists in the
liberalization of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise
of undue and improper pressure and influence upon the testator. This objective
is in accord with the modern tendency in respect to the formalities in the
execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that
were not for the defect in the place of signatures of the witnesses, he would
have found the testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary dispositions, especially so when
the will was properly Identified by subscribing witness Vicente Timkang to be the
same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have
been a fatal defect were it not for the fact that, in this case, it is discernible from
the entire wig that it is really and actually composed of only two pages duly
signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by
the testatrix at the end or at the bottom while the instrumental witnesses signed
at the left margin. The other page which is marked as "Pagina dos" comprises
the attestation clause and the acknowledgment. The acknowledgment itself
states that "This Last Will and Testament consists of two pages including this
page".

13

SUCCESSION: ART. 809

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation
clause must state the number of pages used:

Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision


on reconsideration) 'witnesses may sabotage the will by
muddling or bungling it or the attestation clause.

The law referred to is article 618 of the Code of Civil Procedure,


as amended by Act No. 2645, which requires that the attestation
clause shall state the number of pages or sheets upon which
the win is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of
interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs.
Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30;
Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66
Phil. 611). The ratio decidendi of these cases seems to be that
the attestation clause must contain a statement of the number
of sheets or pages composing the will and that if this is missing
or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not state
the number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a
statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule
of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely
technical considerations.

WHEREFORE, the present petition is hereby granted. The orders of the


respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent court is ordered to allow the
probate of the wig and to conduct further proceedings in accordance with this
decision. No pronouncement on costs.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a
similar liberal approach:
... Impossibility of substitution of this page is assured not only
(sic) the fact that the testatrix and two other witnesses did sign
the defective page, but also by its bearing the coincident imprint
of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize the testatrix
on account of the inadvertence of a single witness over whose
conduct she had no control where the purpose of the law to
guarantee the Identity of the testament and its component
pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the fun
observance of the statutory requisites. Otherwise, as stated in

SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ.,
concur.
Teehankee, J, is on leave.

14

SUCCESSION: ART. 809

G.R. No. L-27440

December 24, 1927

JOSE VILLAFLOR, petitioner-appellant,


vs.
DEOGRACIAS TOBIAS, ET AL., oppositors-appellees.
Simeon Ramos and Araneta & Zaragoza for appellant.
Vicente Foz and Antonio Directo for appellees.
OSTRAND, J.:
This is an appeal from the judgment denying a petition for the probate of a will
alleged to have been executed by one Gregoria Villaflor who died in the
municipality of Santo Domingo, Province of Ilocos Sur on October 7, 1925. The
petition was presented by Jose Villaflor, one of the testamentary heirs of the
deceased. Pilar Villaflor, Deogracias Tobias, and several others whose names
do not appear in the record, contested the will upon the following grounds: (1)
That it was not signed by the alleged testatrix personally though she was able to
do so at the time of the execution of the document; (2) that said testatrix did not
authorize any one to sign the alleged will in her name; (3) that both before and
after the execution of the document, Gregoria Villaflor signed various documents
by thumb marks; (4) that although it is true that the testatrix requested that the
will be prepared, she nevertheless refused to sign it because it was contrary to
her desires and instructions; (5) that subsequent to the date upon which the
alleged will was executed, Gregoria Villaflor on several occasions stated that it
was not her testament; (6) that the alleged will was not executed or signed in
conformity of the law.
The grounds upon which the court below based the rejection of the document
are thus stated in this decision.
After a careful examination of all the evidence of record, this court is of
opinion that it has been sufficiently proved that Claro Lazo, the person
who is alleged to have written the name of the testatrix in her behalf and
by her express direction, subscribed the name and surname of the
testatrix and signed the will in question without Rufino D. Soliven, one of
the attesting witnesses, signed it; and lastly, when Rufino D. Soliven
signed the will the witness Vicente Tacderas was not present.
Besides the foregoing defect, which the court believes fatal, it also finds
that the will in question, marked Exhibit B of the applicant, was
typewritten on eight catalan sheets, one separated from the others; that
the attestation clause was written on a separate sheet, marked page 9,

when said clause could not have been written totally or partially on page
8, since one-half of this latter page is blank.lawphi1.net
In the opinion of the court, all this circumstances tend to make the
authenticity and due execution of the will in question very doubtful and
suspicious. And if the testimony of the witnesses for the opposition
should be taken into account as well as the circumstance that the
testatrix Gregoria Villaflor has neither signed or subscribed the alleged
will, notwithstanding the fact that it has been proven in the record, that
on July 12, 1923, the day in which it is alleged that said will was
executed, the testatrix was, in good and sound health, although she
could not walk on her own feet inasmuch as she was then suffering from
rheumatism or partial paralysis of the lower extremities, and that on July
27, and May 25, 1923, the testatrix Gregoria Villaflor used to mark with
her thumb, if she did not sign, the document she executed, as it was
proven during the trials by Exhibit 1 and 2 of the opponents, the doubt
and suspicion which this court entertains in regard to the authenticity of
the will in question, becomes a certainty that said testament is false.
We are reluctant to set aside the findings of the court below but they are, in our
opinion, so clearly without sufficient support in the record that we are
constrained to reject them. The will in question is dated July 12, 1923, and was
prepared by a lawyer, Eustaquio Gallardo, and as far as appearances go, was
executed in strict compliance with the provisions of section 618 of the Code of
Civil Procedure for the execution of wills. The testatrix's name was signed by
one Claro Lazo, a clerk in the office of municipal treasurer of Santo Domingo,
and the attesting witnesses were Vicente Tacderas, municipal president, Rufino
D. Soliven, chief of police, and Mariano Pizarro, municipal treasurer, all of the
town of Santo Domingo. The finding of the court below that the witness Soliven
was not present when Claro Lazo signed the name of testatrix and when Vicente
Tacderas signed as witness, is based on the fact that, in testifying in this case,
Claro Lazo upon being asked to enumerate the names of the persons present at
the time of signing of the document, omitted the name of Soliven. But it appears
from the transcript of the testimony that he afterwards corrected his original
statement and testified that Soliven, as well as the other witnesses to the will,
was present while all of the signatures were fixed. This is in harmony with the
testimony of all of the instrumental witnesses and is undoubtfully true; there is,
indeed, nothing strange or unusual in a mistake such as that made by Lazo. It
may be noted that it is not disputed that the lawyer Gallardo was present during
the whole proceeding and as he appears to have possessed full knowledge of
the formal requirements for the execution of the will, it is highly improbable that
he would have allowed the will in question to be signed without the presence of
a testatrix and of all the witnesses.

15

SUCCESSION: ART. 809

That the attestation clause of the will is written on a separate page and not on
the last page of the body of the document is, in our opinion, a matter of minor
importance and is explained by the fact that if the clause had been written on the
eight page of the will in direction continuation of the body thereof, there would
have been sufficient space on that page for the signatures of the witnesses to
the clause. It is also to be observed that all of the pages, including that upon
which the attestation clause is written, bear the signatures of all the witnesses
and that there is no question whatever as to the genuineness of said signatures.
The fact that the name of the testatrix was written by another person, and that
she did not sign by thumb mark, is easily explained and is evidently due to an
attempt on the part of the lawyer Gallardo to comply strictly with the following
clause in the Spanish text of section 618 of the Code of Civil Procedure:
"Excepto en el caso a que se refiere el articulo anterior, no sera valido para la
transmision de bienes muebles e inmuebles, ni los gravara y afectara, ningun
testamento a menos que este escrito y que haya sido firmado por el testador, o
que lleve el nombre de este, escrito por otra persona en su presencia y bajo su
direccion expresa, . . . ." The making of a finger mark is not "escribir" and it may
be noted that Gallardo apparently is a good Spanish scholar, that it does not
appear that he knows the English language;. and that he therefore probably
used the Spanish text of the Code.
There is some testimony on the part of the contestants to the effect that the
testatrix on various occasions, subsequent to the execution of the will, had
stated that it was not in conformity with her instructions and that it was not her
will. Assuming that such statements were made, we can give them but little
importance. The testatrix was an old woman and might have well made the
statements by way of justification in conversation with persons who considered
themselves wronged by the provisions of her will, but expressions of that kind
cannot, of course, work the revocation of the document. The testatrix lived for
over two years after the will was made and had ample opportunity to make
another will if she was dissatisfied with the first.
For the reasons stated the appealed judgment is hereby reversed and it is
ordered that the document in question be admitted to probate as the last will and
testament of the deceased Gregoria Villaflor. No costs will be allowed. So
ordered.
Avancea, C.J., Street, Malcolm, and Villamor, JJ., concur.
Johnson, J., dissents.

16