1

EN BANC
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
CARSON, J.:
The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court below, is
whether one of the subscribing witnesses was present in the small room
where it was executed at the time when the testator and the other
subscribing witnesses attached their signatures; or whether at that time he
was outside, some eight or ten feet away, in a large room connecting with
the smaller room by a doorway, across which was hung a curtain which
made it impossible for one in the outside room to see the testator and the
other subscribing witnesses in the act of attaching their signatures to the
instrument.
A majority of the members of the court is of opinion that this subscribing
witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the
instrument, and this finding, of course, disposes of the appeal and
necessitates the affirmance of the decree admitting the document to
probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of
this question of fact of vital importance in the determination of this case,
as he was of opinion that under the doctrine laid down in the case
of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the testator and the
other describing witnesses signed the instrument in the inner room, had it
been proven, would not be sufficient in itself to invalidate the execution of
the will. But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the time when the
testator and the other subscribing witnesses attached their signatures to
the instrument in the inner room, it would have been invalid as a will, the
attaching of those signatures under circumstances not being done "in the
presence" of the witness in the outer room. This because the line of vision

from this witness to the testator and the other subscribing witnesses would
necessarily have been impeded by the curtain separating the inner from
the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other
sign, but whether they might have been seen each other sign, had
they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with relation
to each other at the moment of the subscription of each signature, must be
such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may
be held to have executed the instrument in the presence of each other if it
appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions.
The evidence in the case relied upon by the trial judge discloses that "at
the moment when the witness Javellana signed the document he was
actually and physically present and in such position with relation to
Jaboneta that he could see everything that took place by merely casting
his eyes in the proper direction and without any physical obstruction to
prevent his doing so." And the decision merely laid down the doctrine that
the question whether the testator and the subscribing witnesses to an
alleged will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast upon the
paper at the moment of its subscription by each of them, but that at that
moment existing conditions and their position with relation to each other
were such that by merely casting the eyes in the proper direction they
could have seen each other sign. To extend the doctrine further would
open the door to the possibility of all manner of fraud, substitution, and the
like, and would defeat the purpose for which this particular condition is
prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the
appellant.

2
18 Phil 450 Succession What In the presence of each other
means
When a certain will was being signed, it was alleged that the testator and
some subscribing witnesses were in the inner room while the other
subscribing witnesses were in the outer room. What separates the inner
room from the outer room was a curtain. The trial court ignored this fact in
its determination of the case as it ruled that the determination of this
specific fact will not affect the outcome of the case.
ISSUE: What is the true test of the testators or the witness presence in
the signing of a will?
HELD: The Supreme Court emphasized that the true test of presence of
the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have seen each
other sign, had they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment of
inscription of each signature.
The position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other
sign if they choose to do so.
The Supreme Court, in this case, determined that all the parties were in the
same small room when each other signed. Hence, they were in each
others presence (though the facts of the case didnt elaborate the SC
just ruled so). The SC ruled that if some of the witnesses were really in the
outer room (a fact which was not established according to the SC)
separated by a curtain, then the will is invalid, the attaching of those
signatures under circumstances not being done in the presence of the
witness in the outer room.

'Test of Presence'
Facts:
1. At the time the will was executed, in a large room connecting with a
smaller room by a doorway where a curtain hangs across, one of the

witnesses was in the outside room when the other witnesses were
attaching their signatures to the instrument.
2. The trial court did not consider the determination of the issue as to the
position of the witness as of vital importance in determining the case. It
agreed with the ruling in the case of Jaboneta v. Gustillo that the alleged
fact being that one of the subscribing witnesses was in the outer room
while the signing occurred in the inner room, would not be sufficient to
invalidate the execution of the will.
3. The CA deemed the will valid.
Issue: Whether or not the subscribing witness was able to see the testator
and other witnesses in the act of affixing their signatures.
HELD:
YES. The Court is unanimous in its opinion that had the witnesses been
proven to be in the outer room when the testator and other witnesses
signed the will in the inner room, it would have invalidated the will since
the attaching of the signatures under the circumstances was not done 'in
the presence' of the witnesses in the outer room. The line of vision of the
witness to the testator and other witnesses was blocked by the curtain
separating the rooms.
The position of the parties must be such that with relation to each other at
the moment of the attaching the signatures, they may see each other sign
if they chose to.
In the Jaboneta case, the true test of presence is not whether or not they
actualy saw each other sign but whether they might have seen each other
sign if they chose to doso considering their physical, mental condition and
position in relation to each other at the moment of the inscription of the
signature.

3
EN BANC
[G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch and CONSUELO GONZALES VDA. DE PRECILLA, Respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES
VDA. DE PRECILLA, Respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S.
GONZALES VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA
NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN
MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO,
EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA,
MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD
DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, OppositorsAppellants.

was not prepared with any regard for the defective vision of Da. Gliceria,
the typographical errors remained uncorrected thereby indicating that the
execution thereof must have been characterized by haste. It is difficult to
understand that so important a document containing the final disposition
of ones worldly possessions should be embodied in an informal and untidy
written instrument; or that the glaring spelling errors should have escaped
her notice if she had actually retained the ability to read the purported will
and had done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY;
ART. 808, NEW CIVIL CODE READING OF THE WILL TWICE TO A BLIND
TESTATOR; PURPOSE. The rationale behind the requirement of reading
the will to the testator if he is blind or incapable of reading the will himself
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.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.
Where as in the 1960 will there is nothing in the record to show that the
requisites of Art. 808 of the Civil Code of the Philippines that "if the testator
is blind, the will shall be read to him twice," have not been complied with,
the said 1960 will suffer from infirmity that affects its due execution.

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND

FOR DISALLOWANCE; TESTATRIXS DEFECTIVE EYESIGHT AS
UNABLING HER TO READ THE PROVISIONS OF LATER WILL. The
declarations in court of the opthalmologist as to the condition of the
testatrixs eyesight fully establish the fact that her vision remained mainly
for viewing distant objects and not for reading print; that she was, at the
time of the execution of the second will on December 29, 1960, incapable
of reading and could not have read the provisions of the will supposedly
signed by her.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED

PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL;
ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE
MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE
TRUST; CASE AT BAR. Considering that the alleged deed of sale was
executed when Gliceria del Rosario was already practically blind and that
the consideration given seems unconscionably small for the properties,
there was likelihood that a case for annulment might be filed against the
estate or heirs of Alfonso Precilla. And the administratrix being the widow
and heir of the alleged transferee, cannot be expected to sue herself in an
action to recover property that may turn out to belong to the estate. This,
plus her conduct in securing new copies of the owners duplicate of titles
without the courts knowledge and authority and having the contract bind
the land through issuance of new titles in her husbands name, cannot but
expose her to the charge of unfitness or unsuitability to discharge the
trust, justifying her removal from the administration of the estate.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE

WILL; CASE AT BAR. Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together into a
single sheet of paper, apparently to save on space. Plainly, the testament

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT

"THE TITLE OR THE RIGHT OF POSSESSION OF REAL PROPERTY."
On the matter of lis pendens, the provisions of the Rules of Court are clear:
notice of the pendency of an action may be recorded in the office of the

SYLLABUS

4
register of deeds of the province in which the property is situated, if the
action affects "the title or the right of possession of (such) real
property."cralaw virtua1aw library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in
controversy here is simply the fitness or unfitness of said special
administratrix to continue holding the trust, it does not involve or affect at
all the title to, or possession of, the properties covered by TCT Nos. 81735,
81736 and 81737. Clearly, the pendency of such case (L-26615) is not an
action that can properly be annotated in the record of the titles to the
properties.

DECISION
REYES, J.B.L., J.
G.R. No. L-27200 is an appeal from the order of the Court of First Instance
of Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will
an, testament of the late Gliceria Avelino del Rosario dated 29 December
1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus
filed by certain alleged heirs of said decedent seeking (1) to compel the
probate court to remove Consuelo S. Gonzales-Precilla as special
administratrix of the estate, for conflict of interest, to appoint a new one in
her stead; and (2) to order the Register of Deeds of Manila to annotate
notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in
the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and
said to be properly belonging to the estate of the deceased Gliceria A. del
Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases
may be stated as follows:
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2
September 1965, leaving no descendents, ascendants, brother or sister. At
the time of her death, she was said to be 90 years old more or less, and
possessed of an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of
the deceased, petitioned the Court of First Instance of Manila for probate of
the alleged last will and testament of Gliceria A. del Rosario, executed on
29 December 1960, and for her appointment as special administratrix of

the latters estate, said to be valued at about P100,000.00, pending the

appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1)
Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will executed by
Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children,
relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de
Praga and Marta Natividad de Jesus, wards of the deceased and legatees in
the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all
surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed Mauricio, the latter five
groups of persons all claiming to be relatives of Doa Gliceria within the
fifth civil degree. The oppositions invariably charged that the instrument
executed in 1960 was not intended by the deceased to be her true will;
that the signatures of the deceased appearing in the will was procured
through undue and improper pressure and influence the part of the
beneficiaries and/or other persons; that the testatrix did not know the
object of her bounty; that the instrument itself reveals irregularities in its
execution, and that the formalities required by law for such execution have
not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of
the deceased, joined the group of Dr. Jaime Rosario in registering
opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de
Precilla as special administratrix, on the ground that the latter possesses
interest adverse to the estate. After the parties were duly heard, the
probate court, in its order of 2 October 1965, granted petitioners prayer
and appointed her special administratrix of the estate upon a bond for
P30,000.00. The order was premised on the fact the petitioner was
managing the properties belonging to the estate even during the lifetime
of the deceased, and to appoint another person as administrator or co
administrator at that stage of the proceeding would only result in further
confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the
probate court an urgent motion to require the Hongkong & Shanghai Bank
to report all withdrawals made against the funds of the deceased after 2
September 1965. The court denied this motion on 22 October 1965 for
being premature, it being unaware that such deposit in the name of the
deceased existed. 1

5
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and
children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia,
petitioned the court for the immediate removal of the special
administratrix. It was their claim that the special administratrix and her
deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario to
execute a simulated and fraudulent deed of absolute sale dated 10 January
1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon
located on Quiapo and San Nicolas, Manila, with a total assessed value of
P334,050.00. Oppositors contended that since it is the duty of the
administrator to protect and conserve the properties of the estate, and it
may become necessary that, an action for the annulment of the deed of
sale land for recovery of the aforementioned parcels of land be filed
against the special administratrix, as wife and heir of Alfonso Precilla, the
removal of the said administratrix was imperative.

that the 1956 will consisted of 12 pages whereas the 1960 testament was
contained in one page does not render the latter invalid; that, the erasures
and alterations in the instrument were insignificant to warrant rejection;
that the inconsistencies in the testimonies of the instrumental witnesses
which were noted by the oppositors are even indicative of their
truthfulness. The probate court, also considering that petitioner had
already shown capacity to administer the properties of the estate and that
from the provisions of the will she stands as the person most concerned
and interested therein, appointed said petitioner regular administratrix
with a bond for P50,000.00. From this order all the oppositors appealed,
the case being docketed in this Court as G.R. No. L-27200.

On 17 December 1965, the same oppositors prayed the court for an order
directing the Special Administratrix to deposit with the Clerk of Court all
certificates of title belonging to the estate. It was alleged that on 22
October 1965, or after her appointment, petitioner Consuelo Gonzales Vda.
de Precilla, in her capacity as special administratrix of the estate of the
deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First
Instance of Manila a motion for the issuance of new copies of the owners
duplicates of certain certificates of title in the name of Gliceria del Rosario,
supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted, new
copies of the owners duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204)
were issued on 15 November 1965. On 8 December 1965, according to the
oppositors, the same special administratrix presented to the Register of
Deeds the deed of sale involving properties covered by TCT Nos. 66201,
66202 and 66204 supposedly executed by Gliceria del Rosario on 10
January 1961 in favor of Alfonso Precilla, and, in consequence, said
certificates of title were cancelled and new certificates (Nos. 81735, 81736
and 81737) were issued in the name of Alfonso Precilla, married to
Consuelo S. Gonzales y Narciso.

"It would seem that the main purpose of the motion to remove the special
administratrix and to appoint another one in her stead, is in order that an
action may be filed against the special administratrix for the annulment of
the deed of sale executed by the decedent on January 10, 1961. Under
existing documents, the properties sold pursuant to the said deed of
absolute sale no longer forms part of the estate. The alleged conflict of
interest is accordingly not between different claimants of the same estate.
If it is desired by the movants that an action be filed by them to annul the
aforesaid deed absolute sale, it is not necessary that the special
administratrix be removed and that another one be appointed to file such
action. Such a course of action would only produce confusion and
difficulties in the settlement of the estate. The movants may file the
aforesaid proceedings, preferably in an independent action, to secure the
nullity of the deed of absolute even without leave of this court:"

On 25 August 1966, the Court issued an order admitting to probate the

1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due
execution of the will, the probate court took note that no evidence had
been presented to establish that the testatrix was not of sound mind when
the will was executed; that the fact that she had prepared an earlier will
did not, prevent her from executing another one thereafter; that the fact

Then, on 13 September 1966, the probate court resolved the oppositors

motion of 14 December 1965 for the removal of the then special
administratrix, as follows:

As regard the motion of 17 December 1965 asking for the deposit in court
of the titles in the name of the decedent, the same was also denied, for the
reason that if the movants were referring to the old titles, they could no
longer be produced, and if they meant the new duplicate copies thereof
that were issued at the instance of the special administratrix, there would
be no necessity therefor, because they were already cancelled and other
certificates were issued in the name of Alfonso Precilla. This order
precipitated the oppositors filing in this Court of a petition for mandamus
(G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M.
Vasquez, Et. Al.), which was given due course on 6 October 1966.

6
On 15 December 1965, with that motion for removal pending in the court,
the oppositors requested the Register of Deeds of Manila to annotate a
notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737
in the name of Alfonso Precilla. And when said official refused to do so,
they applied to the probate court (in Sp. Proc. No. 62618) for an order to
compel the Register of Deeds to annotate a lis pendens notice in the
aforementioned titles contending that the matter of removal and
appointment of the administratrix, involving TCT Nos. 81735, 81736, and
81737, was already before the Supreme Court. Upon denial of this motion
on 12 November 1966, oppositors filed another mandamus action, this
time against the probate court and the Register of Deeds. The case was
docketed and given due course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness
of the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills:
one on 9 June 1956 consisting of 12 pages and written in Spanish, a
language that she knew and spoke, witnessed by Messrs. Antonio Cabrera,
Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary
public Jose Ayala; and another dated 29 December 1960, consisting of 1
page and written in Tagalog, witnessed by Messrs. Vicente Rosales,
Francisco Decena, and Francisco Lopez and acknowledged before notary
public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental
witnesses Decena, Lopez and Rosales uniformly declared that they were
individually requested by Alfonso Precilla (the late husband of petitioner
special administratrix) to witness the execution of the last will of Doa
Gliceria A. del Rosario; that they arrived at the house of the old lady at No.
2074 Azcarraga, Manila, one after the other, in the afternoon of 29
December 1960; that the testatrix at the time was apparently of clear and
sound mind, although she was being aided by Precilla when she walked; 3
that the will, which was already prepared, was first read "silently" by the
testatrix herself before she signed it; 4 that he three witnesses thereafter
signed the will in the presence of the testatrix and the notary public and of
one another. There is also testimony that after the testatrix and the
witnesses to the will acknowledged the instrument to be their voluntary act
and deed, the notary public asked for their respective residence
certificates which were handed to him by Alfonso Precilla, clipped together;
5 that after comparing them with the numbers already written on the will,
the notary public filled in the blanks in the instrument with the date, 29

January 1960, before he affixed his signature and seal thereto. 6 They also
testified that on that occasion no pressure or influence has been exerted
by any person upon the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the
signing of this 1960 will are evident from the records. The will appeared to
have been prepared by one who is not conversant with the spelling of
Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano
who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two
of whom are fellow Visayans, 8 admitted their relationship or closeness to
Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria
del Rosario on 29 December 1960 to witness an important document, 10
and who took their residence certificates from them a few days before the
will was signed. 11 Precilla had met the notary public and witnesses
Rosales and Lopez at the door of the residence of the old woman; he
ushered them to the room at the second floor where the signing of the
document took place; 12 then he fetched witness Decena from the latters
haberdashery shop a few doors away and brought him to, the house the
testatrix. 13 And when the will was actually executed Precilla was present.
14
The oppositors-appellants in the present case, however, challenging the
correctness of the probate courts ruling, maintain that on 29 December
1960 the eyesight of Gliceria del Rosario was so poor and defective that
she could not have read the provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise was
admitted by both parties, testified, among other things, that when Doa
Gliceria del Rosario saw him for consultation on 11 March 1960 he found
her left eye to have cataract (opaque lens), 15 and that it was "above
normal in pressure", denoting a possible glaucoma, a disease that leads to
blindness 16 As to the conditions of her right eye, Dr. Tamesis declared:
"Q
But is there anything here in the entry appearing in the other
documents Exhibits 3-B, 3-C and 3-D from which you could inform the court
as to the condition of the vision of the patient as to the right eve?
"A
Under date of August 30, 1960, is the record of refraction. that is
setting of glass by myself which showed that the right eye with my
prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye
with her correction 20 over 300 (20/300).

7
"Q
In laymans language, Doctor, what is the significance of that
notation that the right had a degree of 20 over 60 (20/60)?
"A
It meant that eye at least would be able to recognize objects or
persons at a minimum distance of twenty feet.
"Q

But would that grade enable the patient to read print?

"A
Apparently that is only a record for distance vision, for distance
sight, not for near."
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the left eye of
the decedent at the Lourdes Hospital on 8 August 1960; as of 23 August
1960, inspite of the glasses her vision was only "counting fingers," 17 at
five feet. The cross-examination of the doctor further elicited the following
responses:
"Q
After she was discharged from the hospital you prescribed lenses
for her, or glasses?
"A
After her discharge from the hospital, she was coming to my clinic
for further examination and then sometime later glasses were prescribed.
"Q

And the glasses prescribed by you enabled her to read, Doctor?

"A
As far as my record is concerned, with the glasses for the left eye
which I prescribed the eye which I operated she could see only forms
but not read. That is on the left eye.
"Q

How about the right eye?

"A
The same, although the vision on the right eye is even better than
the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29
November 1965 certifying that Gliceria del Rosario was provided with
aphakic lenses and "had been under medical supervision up to 1963 with
apparently good vision", the doctor had this to say:
"Q
When yon said that she had apparently good vision you mean that
she was able to read?

"A
No, not necessarily, only able to go around, take care of herself
and see. This I can tell you, this report was made on pure recollections and
I recall she was using her glasses although I recall also that we have to
give her medicines to improve her vision, some medicines to improve her
identification some more.
"Q
What about the vision in the right eve, was that corrected by the
glasses?
"A
Yes, with the new prescription which I issued on 80 August 1960. It
is in the clinical record.
"Q

The vision in the right eye was corrected?

"A

Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased
and, therefore, has first hand knowledge of the actual condition of her
eyesight from August, 1960 up to 1963, fully establish the fact that
notwithstanding the operation and removal of the cataract in her left eye
and her being fitted with aphakic lens (used by cataract patients), her
vision remained mainly for viewing distant objects and not for reading
print. Thus, the conclusion is inescapable that with the condition of her
eyesight in August, 1960, and there is no evidence that it had improved by
29 December 1960, Gliceria del Rosario was incapable f reading, and could
not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated
that she read the instrument "silently" (t.s.n., pages 164-165). which is a
conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the
appearance of the will, Exhibit "D", acquires striking significance. Upon its
face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, to
much so that the words had to be written very close on the top, bottom
and two sides of the paper, leaving no margin whatsoever; the word "and"
had to be written by the symbol" &", apparently to save on space. Plainly,
the testament was not prepared with any regard for the defective vision of
Doa Gliceria. Further, typographical errors like "HULINH" for "HULING"
(last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental"
for "Instrumental", and "acknowledged" for "acknowledge, remained
uncorrected, thereby indicating that execution thereof must have been

8
characterized by haste. It is difficult to understand that so important a
document containing the final disposition of ones worldly possessions
should be embodied in an informal and untidily written instrument; or that
the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so.
The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that
its admission to probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday,
arrange flowers and attend to kitchen tasks shortly prior to the alleged
execution of the testament Exhibit "D", as appears from the photographs,
Exhibits "E" to "E-1", in no way proves; that she was able to read a closely
typed page, since the acts shown do not require vision at close range. It
must be remembered that with the natural lenses removed, her eyes had
lost the power of adjustment to near vision, the substituted glass lenses
being rigid and uncontrollable by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of ones name, when sufficiently practiced,
becomes automatic, so that one need only to have a rough indication of
the place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph,
Exhibit "O", et seq., reinforces the contention of oppositors that the alleged
testatrix could not see at normal reading distance: the signatures in the
checks are written far above the printed base, lines, and the names of the
payees as well as the amounts written do not appear to be in the
handwriting of the alleged testatrix, being in a much firmer and more fluid
hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased
Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind
testator, and the due execution of her will would have required observance
of the provisions of Article 808 of the Civil Code.
"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.
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),
18 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. That the aim of the
law is to insure that the dispositions of the will are properly communicated

to and understood by the handicapped testator, thus making them truly

reflective of his desire, is evidenced by the requirement that the will should
be read to the latter, not only once but twice, by two different persons, and
that the witnesses have to act within the range of his (the testators) other
senses. 19
In connection with the will here in question, there is nothing in the records
to show that the above requisites have been complied with. Clearly, as
already stated, the 1960 will sought to be probated suffers from infirmity
that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al.,
against the denial by the probate court of their petition for the removal of
Consuelo Gonzales Vda. de Precilla as special administratrix of the estate
of the deceased Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").
The oppositors petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their
contention that through fraud her husband had caused the deceased
Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by
virtue of which the latter purportedly conveyed unto said Alfonso D.
Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3
parcels of land and the improvements thereon, assessed at P334,050.00,
for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September
1966 (Annex "P", Petition) reasoned out that since the properties were
already sold no longer form part of the estate. The conflict of interest
would not be between the estate and third parties, but among the different
claimants of said properties, in which case, according to the court, the
participation of the special administratrix in the action for annulment that
may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being
questioned was precisely the validity of the conveyance or sale of the
properties. In short, if proper, the action for annulment would have to be
undertaken on behalf of the estate by the special administratrix, affecting
as it does the property or rights of the deceased. 20 For the rule is that
only where there is no special proceeding for the settlement of the estate
of the deceased may the legal heirs commence an action arising out of a
right belonging to their ancestor. 21

9
There is no doubt that to settle the question of the due execution and
validity of the deed of sale, an ordinary and separate action would have to
be instituted, the matter not falling within the competence of the probate
court. 22 Considering the facts then before it, i.e., the alleged deed of sale
having been executed by Gliceria del Rosario on 10 January 1961, when
she was already practically blind; and that the consideration of P30,000.00
seems to be unconscionably small for properties with a total assessed
value of P334,050.00, there was likelihood that a case for annulment might
indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot
be expected to sue herself in an action to recover property that may turn
out to belong to the estate. 22 Not only this, but the conduct of the special
administratrix in securing new copies of the owners duplicates of TCT Nos.
66201, 66202, and 66204, without the courts knowledge or authority, and
on the pretext that she needed them in the preparation of the inventory of
the estate, when she must have already known by then that the properties
covered therein were already "conveyed" to her husband by the deceased,
being the latters successor, and having the contract bind the land through
issuance of new titles in her husbands name cannot but expose her to the
charge of unfitness or unsuitableness to discharge the trust, justifying her
removal from the administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors
motion to require the Hongkong and Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September
1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos.
81735, 81736 and 81737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H")
that it could not have taken action on the complaint against the alleged
withdrawals from the bank deposits of the deceased, because as of that
time the court had not yet been apprised that such deposits exist.
Furthermore, as explained by the special administratrix in her pleading of
30 October 1965, the withdrawals referred to by the oppositors could be
those covered by checks issued in the name of Gliceria del Rosario during
her lifetime but cleared only after her death. That explanation, which not
only appears plausible but has not been rebutted by the petitionersoppositors, negates any charge of grave abuse in connection with the
issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules
of Court are clear: notice of the pendency of an action may be recorded in
the office of the register of deeds of the province in which the property is

situated, if the action affects "the title or the right of possession of (such)
real property." 23 In the case at bar, the pending action which oppositors
seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is
the mandamus proceeding filed in this Court (G.R. No. L-26615). As
previously discussed in this opinion, however, that case is concerned
merely with the correctness of the denial by the probate court of the
motion for the removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the late Gliceria del Rosario. In short, the
issue in controversy there is simply the fitness or unfitness of said special
administratrix to continue holding the trust; it does not involve or affect at
all the title to, or possession of, the properties covered by said TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is
not an action that can properly be annotated in the record of the titles to
the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to
probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed
and set aside. The petition in G.R. No. L-26615 being meritorious, the
appealed order is set aside and the court below is ordered to remove the
administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the
heirs intestate of the deceased Doa Gliceria Avelino del Rosario as special
administrator for the purpose of instituting action on behalf of her estate to
recover the properties allegedly sold by her to the late Alfonso D. Precilla.
And in Case G.R. No. L-26864, petition is dismissed. No costs.
Facts:
1. Gliceria del Rosario executed 2 wills, one in June 1956, written in
Spanish, a language she knew an spoke. The other will was executed in
December 1960 consisting of only one page, and written in Tagalog. The
witnesses to the 1960 will declared that the will was first read 'silently' by
the testatrix before signing it. The probate court admitted the will.
2. The oppositors alleged that the as of December 1960, the eyesight of
the deceased was so poor and defective that she could not have read the
provisions contrary to the testimony of the witnesses.
Issue: Whether or not the will is valid
RULING: The will is not valid. If the testator is blind, Art. 808 of the New
Civil Code (NCC) should apply.If the testator is blind or incapable of
reading, he must be apprised of the contents of the will for him to be able
to have the opportunityto object if the provisions therein are not in
accordance with his wishes.

10
The testimony of her opthalmologist established that notwithstanding an
operation to remove her cataract and being fitted with the lenses, this did
not improve her vision. Her vision remained mainly for viewing distant
objects and not for reading. There was no evidence that her vision
improved at the time of the execution of the 2nd will. Hence, she was
incapable of reading her own will. The admission of the will to probate is
therefor erroneous.

11
FIRST DIVISION
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court, First Division
(Civil Cases), and BAYANI MA. RINO, respondents.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First
Civil Cases Division of the then Intermediate Appellate Court, now Court of
Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional
Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial
will entitled "Huling Habilin" wherein he disinherited an illegitimate son
(petitioner) and expressly revoked a previously executed holographic will
at the time awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and
by private respondent who were present at the execution, the testator did
not read the final draft of the will himself. Instead, private respondent, as
the lawyer who drafted the eight-paged document, read the same aloud in
the presence of the testator, the three instrumental witnesses and the
notary public. The latter four followed the reading with their own respective
copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to
probate on 9 December 1977. On the 29th day of the same month, a
codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the notarial will to
generate cash for the testator's eye operation. Brigido was then suffering
from glaucoma. But the disinheritance and revocatory clauses were

unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the presence of the
three instrumental witnesses (same as those of the notarial will) and the
notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with
the Court of First Instance, now Regional Trial Court, of Siniloan,
Laguna. 5Petitioner, 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

12
executed? If so, was the double-reading requirement of said article
complied with?

so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it

necessary for private respondent to do the actual reading for him.

Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were
executed. However, his vision on both eyes was only of "counting fingers at
three (3) feet" by reason of the glaucoma which he had been suffering
from for several years and even prior to his first consultation with an eye
specialist on
14 December 1977.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight

into the scope of the term "blindness" as used in Art. 808, to wit:

The point of dispute is whether the foregoing circumstances would qualify

Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the
will and codicil were executed, he can be so considered within the scope of
the term as it is used in Art. 808. To support his stand, petitioner presented
before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were interpreted in layman's terms by Dr.
Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr.
Roasa explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten matters as
of 14 December 1977, the day of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical
testimony, held that the testator could still read on the day the will and the
codicil were executed but chose not to do so because of "poor
eyesight." 9 Since the testator was still capable of reading at that time, the
court a quo concluded that Art. 808 need not be complied with.

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.

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

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

13
instrumental witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been disallowed.

physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known

to him since childhood.

We sustain private respondent's stand and necessarily, the petition must

be denied.

The spirit behind the law was served though the letter was not. Although
there should be strict compliance with the substantial requirements of the
law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17

This Court has held in a number of occasions that substantial compliance is

acceptable where the purpose of the law has been satisfied, the reason
being that the solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery but are never
intended to be so rigid and inflexible as to destroy the testamentary
privilege. 14
In the case at bar, private respondent read the testator's will and codicil
aloud in the presence of the testator, his three instrumental witnesses, and
the notary public. Prior and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgement take place. There is no
evidence, and petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and communicated to the
testator. On the contrary, with respect to the "Huling Habilin," the day of
the execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of
Atty. Rino is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5 November
1977 when Atty. Rino went to the testator's residence precisely for the
purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the document were
of his own free will. Brigido answered in the affirmative. 16 With four
persons following the reading word for word with their own copies, it can
be safely concluded that the testator was reasonably assured that what
was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten
documents. This is especially true when we consider the fact that the three
instrumental witnesses were persons known to the testator, one being his

As a final word to convince petitioner of the propriety of the trial court's

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

14
SO ORDERED.

ISSUE:

This is a beautiful Succession case. Which could not have been beautiful
had the court not seen the beauty that is typically unseen with the naked
eye.. the ESSENCE of the Law

Was the will valid? Should it be admitted to probate despite allegations of

defects in the execution and attestation as testator was allegedly blind at
the time of its execution and the DOUBLE READING requirement under ART.
808 of the New Civil Code was not complied with?

And well ehem!, credits also goes to the lawyer who had presence of mind,
and the tenacity to go over the rudiments of it all never buckling down in
his obligation in the preparation of the testamentary documents together
with the substantial requisites that goes with it. Otherwise the failing old
man's true intention and will of disinheriting his abusive illegitimate son
would have amounted to nothing and have executed the complete
opposite of his intent.
The 79 year old testator was suffering from GLAUCOMA and therefore
partially blind. He executed a notarial will and a subsequent codicil for that
matter wherein he DISINHERITED HIS ILLEGITIMATE SON.
Actually it happened this way.. He called up a lawyer who is most probably
personally well known to him. (Here comes the lawyer walking in.. places
his Armani leather satchel on the mahogany table, loosens up his collar
"Vincenzo is that you?.. let me feel your face".. "Don Brigido" "It is you.. I
known this face ever since you were a little boy.. your face is so much that
of your have father's.. and I have missed him ever since he was gone.. my
comrade and most trusted friend" ah ehem!.. I just made that up LOL
sorry)
Now notice, what the lawyer did was this. He summoned 3 credible
witnesses who are mostly known to the old man, a notary public, and
drafted the 8 page document giving each one (3 witnesses and notary
public) a copy and read the same aloud, the 4 following the reading with
their own respective copies, before the ailing testator.
Thereafter a codicil was executed changing some dispositions in the
notarial will and said subsequent instrument was likewise not read by the
testator but was read to the testator in the same manner as with the
previously executed will.
Now here comes the illegit son. When the will was submitted to the court
for probation, the abusive illegitimate son, petitioner in this case
(Alvarado) filed opposition saying that the will was not executed and
attested as required by law.

RULING:
IT'S VALID - The court never could have said it more beautifully and I
quote "The spirit of the law was served though letter was not"
You see the applicable provision ART. 808 speaks that "If the testator is
BLIND, the will shall be read to him; once, by one of the (1.)SUBSCRIBING
WITNESSES, and again, by the (2.) NOTARY PUBLIC before whom the will is
acknowledged." This didn't happen here.

So here we see clearly the letter of the law was not strictly construed with
regard to this case. It was the lawyer who read the testamentary will to the
testator, and so the opposing party contradicted this as non-compliance to
the applicable provision.

But the court said it doesn't matter. You see the essence of the law is that
the testamentary will after its been completely drafted is MERELY
REQUIRED to be sufficiently made known to the blind testator as to its
content so that the testator may object and correct it upon hearing in order
for it to conform to what his final intentions are. And CLEARLY in this case
that requisite was COMPLIED WITH, even if it's the lawyer who rendered
the reading.
Furthermore, there was no evidence that contents of the will and codicil
were not sufficiently made known and communicated to the testator. With
four persons mostly known to him following the reading word by word with
each having his own copy, it can be safely concluded that the testator was
reasonably assured that what was read to him were terms in the
document.
This comes under one of those circumstances where formal imperfections
should be brushed aside when they do not affect its purpose and which if
taken to account may only defeat the testator's will. And it is clear this is a

15
NON-FATAL DEFECT affecting the validity of the testamentary documents
as to the execution of the provision.
It's just OVER-ZEALOUSNESS on the part of the lawyer, that's my own take
on this. He must have been aware of the circumstances prevailing since
the testator is personally well known to him and only wanted to protect
him and his estate making sure he is there in every step of the way.. never
realizing he was over-doing it.
And he probably love what he's doing.."Hep hep! Ako na babasa. Tutal ako
naman nagsulat eh. And.. maganda naman boses ko.. di ba?" :)
Well, there's nothin' completely wrong with that. Hinde epal yon ah.. in fact
that's considerably admirable. Sinong gusto ng tatamad-tamad na
abugado?

16
N BANC
G.R. No. L-14003

August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January
1958 by the Court of First Instance of Quezon City in its Special
Proceedings No. Q-2640, involves the determination of the quantity of
evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from
(Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance
died at 13 Luskot, Quezon City, known to be the last residence of
said testatrix; that Francisco Azaola, petitioner herein for probate
of the holographic will, submitted the said holographic will (Exh. C)
whereby Maria Milagros Azaola was made the sole heir as against
the nephew of deceased Cesario Singson; that witness Francisco
Azaola testified that he saw the holographic will (Exh. C) one
month, more or less, before the death of the testatrix, as the same
was handed to him and his wife; that the witness testified also that
he recognized all the signatures appearing in the holographic will
(Exh. C) as the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the special
power of the attorney (Exh. F), and the general power of attorney
(Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in court
two residence certificates (Exhs. H and H-1) to show the signatures
of the testatrix, for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well
as the signatures appearing in the aforesaid documentary evidence
is in the handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that said

witness, in answer to a question of his counsel admitted that the

holographic will was handed to him by the testatrix. "apparently it
must have been written by her" (t.s.n., p. 11). However, on page
16 on the same transcript of the stenographic notes, when the
same witness was asked by counsel if he was familiar with the
penmanship and handwriting of the deceased Fortunata Vda. de
Yance, he answered positively in the affirmative and when he was
asked again whether the penmanship referred to in the previous
answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers"; that it
was also established in the proceedings that the assessed value of
the property of the deceased in Luskot, Quezon City, is in the
amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of
the will was procured by undue and improper pressure and influence on
the part of the petitioner and his wife, and (2) that the testatrix did not
seriously intend the instrument to be her last will, and that the same was
actually written either on the 5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare that
the will and the signature are in the writing of the testatrix, the probate
being contested; and because the lone witness presented by the proponent
"did not prove sufficiently that the body of the will was written in the
handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce
more than one witness because the will's authenticity was not questioned;
and second, that Article 811 does not mandatorily require the production of
three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the signature are
in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.

17
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but
even if the genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present Civil Code can not be interpreted
as to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a holographic
will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three witnesses; they must
be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express)
"that the will and the signature are in the handwriting of the testator".
There may be no available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus become
an impossibility. That is evidently the reason why the second paragraph of
Article 811 prescribes that
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness
may be found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will), and
provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can
not be ignored that the requirement can be considered mandatory only in
the case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential
to their validity (Art. 805). Where the will is holographic, no witness need

be present (Art. 10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by
the words "if the Court deem it necessary", which reveal that what the law
deems essential is that the Court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the ill is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting
experts. The duty of the Court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil
Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed.,
p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado
de dicho precepto induce la conclusion de que siempre o por lo
menos, en la mayor parte de los casos, el Juez debe acudir al
criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del
expediente las declaraciones testificales. La prudencia con que el
Juez debe de proceder en resoluciones de transcendencia asi lo
exige, y la indole delicada y peligrosa del testamento olografo lo
hace necesario para mayor garantia de todos los interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion
facultativa del dicho profano de los testigos y un modo de
desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca
de la autenticidad que trata de averigaur y declarar. Para eso se ha
escrito la frase del citado ultimo apartado, (siempre que el Juez lo
estime conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia
de los sucesos y de su significacion, para responder debidamente
de las resoluciones que haya de dictar.

18
And because the law leaves it to the trial court if experts are still needed,
no unfavourable inference can be drawn from a party's failure to offer
expert evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the
Civil Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of
justice would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold a
new trial in conformity with this opinion. But evidence already on record
shall not be retaken. No costs.

19
FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming
to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a
petition before the Court of First Instance of Batangas, Branch VI, Lipa City,
for the probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa
City, being of sound and disposing mind and memory, do hereby declare
thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of
Lipa City. In accordance with the rights of said Church, and that my
executrix hereinafter named provide and erect at the expose of my state a
suitable monument to perpetuate my memory.
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA
K. Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article
814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or

alteration in a holographic will the testator must
authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be
given effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September
3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National
Bureau of Investigation for examination. The NBI reported
that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same
person. Consequently, Exhibit "C" was the handwriting of
the decedent, Natividad K. Kalaw. The only question is
whether the win, Exhibit 'C', should be admitted to probate
although the alterations and/or insertions or additions
above-mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil
Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the ground
that they themselves agreed thru their counsel to submit
the Document to the NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree, nor was it impliedly
understood, that the oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814
of the Civil Code is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in Exhibit "C" not to
be authenticated by the full signature of the testatrix
Natividad K. Kalaw, the Court will deny the admission to
probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since
the alterations and/or insertions were the testatrix, the denial to probate of

20
her holographic Will would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."

testamento olografo que contenga palabras tachadas,

enmendadas o entre renglones no salvadas por el testador
bajo su firnia segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al testamento
mismo, ya por estar esa disposicion en parrafo aparte de
aquel que determine las condiciones necesarias para la
validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte
esencial y respectiva del testamento, vinieran a anular
este, y ya porque el precepto contenido en dicho parrafo
ha de entenderse en perfecta armonia y congruencia con
el art. 26 de la ley del Notariado que declara nulas las
adiciones apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se
salven en la forma prevenida, paro no el documento que
las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes
de ortografia o de purez escrituraria, sin trascendencia
alguna(l).

From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition
for Review on certiorari on the sole legal question of whether or not
the original unaltered text after subsequent alterations and insertions were
voided by the Trial Court for lack of authentication by the full signature of
the testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will litem not been noted under his
signature, ... the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when he said "la
omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir
with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that
the entire Will is voided or revoked for the simple reason that nothing
remains in the Will after that which could remain valid. To state that the
Will as first written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can neither be
given effect because she failed to authenticate it in the manner required
by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect
only the efficacy of the altered words themselves but not the essence and
validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be
determined with certitude. As Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil
Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el
688) la sentencia que no declara la nulidad de un

Mas para que sea aplicable la doctrina de excepcion

contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien de
modo substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la sentencia de
29 de Noviembre de 1916, que declara nulo un testamento
olografo por no estar salvada por el testador la enmienda
del guarismo ultimo del ao en que fue
extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs.
SO ORDERED.
Facts:

21
1. Gregorio Kalaw, the private respondent, claiming to be the sole heir of
sister Natividad, filed a peition for probate of the latter's holographic will in
1968. The will contained 2 alterations: a) Rosa's name, designated as the
sole heir was crossed out and instead "Rosario" was written above it. Such
was not initialed, b) Rosa's name was crossed out as sole executrix and
Gregorio's ma,e was written above it. This alteration was initialed by the
testator.
2. Rosa contended that the will as first written should be given effect so
that she would be the sole heir. The lower court denied the probate due to
the unauthenticated alterations and additions.
Issue: Whether or not the will is valid
RULING: No, the will is voided or revoked since nothing remains in the will
which could remain valid as there was only one disposition in it. Such was
altered by the substitution of the original heir with another. To rule that the
first will should be given effect is to disregard the testatrix' change of
mind. However, this change of mind cannot be given effect either as she
failed to authenticate it in accordance with Art. 814, or by affixing her full
signature.
Art. 814
Kalaw v. Relova (1984) [125]
Effect of non-compliance.
Issue: whether the original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of authentication by full
signature of the testatrix, should be probated or not.
Velasco v. Lopez: when a number of erasures, corrections, and
interlineations made by the testator in a holographic will have not been
noted under his signature, the will is not thereby invalidated as a whole,
but at most only as respects the particular words, erased, or interlined.
However, when as in this case, the holographic will in dispute had only one
substantial provision, which was altered by substituting the original heir
with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that
the entire will is voided or revoked for the simple reason that nothing
remains in the will after that which could remain valid. To state that the will
as first written should be given efficacy is to disregard the seeming change

of mind of the testatrix. But that change of mind can neither be given
effect because she failed to authenticate it in the manner required by lay
by affixing her full signature.
Velasco ruling must be held confined to such insertions, cancellations,
erasures or alterations in a holographic will, which affect only the efficacy
of the altered words themselves but not the essence and validity of the will
itself.
What are the effects of insertions or interpolations made by a 3rd person?
General Rules:
When a number of erasures, corrections, cancellation, or insertions are
made by the testator in the will but the same have not been noted or
authenticated with his full signature, only the particular words erased,
corrected, altered will be invalidated, not the entirety of the will.
Exception:
1. Where the change affects the essence of the will of the testator; Note:
When the holographic will had only one substantial provision, which was
altered by substituting the original heir with another, and the same did not
carry the requisite full signature of the testator, the entirety of the will is
voided or revoked.
Reason: What was cancelled here was the very essence of the will; it
amounted to the revocation of the will. Therefore, neither the altered text
nor the original unaltered text can be given effect. (Kalaw v. Relova, G.R.
No. L-40207, Sept. 28, 1984)
2. Where the alteration affects the date of the will or the signature of the
testator.
3. If the words written by a 3rd person were contemporaneous with the
execution of the will, even though authenticated by the testator, the entire
will is void for violation of the requisite that the holographic will must be
entirely in the testators handwriting.

Kalaw v. Relova
G.R. No. L-40207 September 28, 1984

22
Melencio-Herrera, J. (Ponente)
Facts:
1. Gregorio Kalaw, the private respondent, claiming to be the sole heir of
sister Natividad, filed a peition for probate of the latter's holographic will in
1968. The will contained 2 alterations: a) Rosa's name, designated as the
sole heir was crossed out and instead "Rosario" was written above it. Such
was not initialed, b) Rosa's name was crossed out as sole executrix and
Gregorio's ma,e was written above it. This alteration was initialed by the
testator.
2. Rosa contended that the will as first written should be given effect so
that she would be the sole heir. The lower court denied the probate due to
the unauthenticated alterations and additions.
Issue: Whether or not the will is valid
RULING: No, the will is voided or revoked since nothing remains in the will
which could remain valid as there was only one disposition in it. Such was
altered by the substitution of the original heir with another. To rule that the
first will should be given effect is to disregard the testatrix' change of
mind. However, this change of mind cannot be given effect either as she
failed to authenticate it in accordance with Art. 814, or by affixing her full
signature.

23
FIRST DIVISION
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.
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

24
notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer
v. Cox, 43 Ill. 130). There are others holding that his signing merely as
notary in a will nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v.
Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate
160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood,
15 So. 1030). But these authorities do not serve the purpose of the law in
this jurisdiction or are not decisive of the issue herein because the notaries
public and witnesses referred to aforecited cases merely acted as
instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not only as
attesting witness but also acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will or file
another with the office of the Clerk of Court. [Emphasis
supplied]
To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two
attesting witnesses to the will which would be in contravention of the
provisions of Article 80 be requiring at least three credible witnesses to act
as such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge
the will. The result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the
circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed
and the probate of the last will and testament of Valente Z. Cruz (Exhibit
"E") is declared not valid and hereby set aside.
Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:
Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of the
late Valenti Cruz. However, the petitioner opposed the allowance of the will
alleging that it was executed through fraud, deceit, misrepresentation, and

undue influence. He further alleged that the instrument was executed

without the testator having been informed of its contents and finally, that it
was not executed in accordance with law.
2. One of the witnesses, Angel Tevel Jr. was also the notary before whom
the will was acknowledged. Despite the objection, the lower court admitted
the will to probate on the ground that there is substantial compliance with
the legal requirements of having at least 3 witnesses even if the notary
public was one of them.
Issue: Whether or not the will is valid in accordance with Art. 805 and
806 of the NCC
HELD:
NO. The will is not valid. The notary public cannot be considered as the
third instrumental witness since he cannot acknowledge before himself his
having signed the said will. An acknowledging officer cannot serve as
witness at the same time.
To acknowledge before means to avow, or to own as genuine, to assent,
admit, and 'before' means in front of or preceding in space or ahead of. The
notary cannot split his personality into two so that one will appear before
the other to acknowledge his participation int he making of the will. To
permit such situation would be absurd.
Finally, the function of a notary among others is to guard against any
illegal or immoral arrangements, a function defeated if he were to be one
of the attesting or instrumental witnesses. He would be interested in
sustaining the validity of the will as it directly involves himself and the
validity of his own act. he would be in an inconsistent position, thwarting
the very purpose of the acknowledgment, which is to minimize fraud.

25
LETICIA VALMONTE ORTEGA, G.R. No. 157451
Petitioner,
- versus JOSEFINA C. VALMONTE,
Respondent.
December 16, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the
burden of showing why it should not be allowed. In the present case,
petitioner has failed to discharge this burden satisfactorily. For this reason,
the Court cannot attribute any reversible error on the part of the appellate
tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review[1] under Rule 45 of the Rules of
Court, seeking to reverse and set aside the December 12, 2002 Decision[2]
and the March 7, 2003 Resolution[3] of the Court of Appeals (CA) in CA-GR
CV No. 44296. The assailed Decision disposed as follows:
WHEREFORE, the appeal is GRANTED, and the Decision appealed from is
REVERSED and SET ASIDE. In its place judgment is rendered approving and
allowing probate to the said last will and testament of Placido Valmonte
and ordering the issuance of letters testamentary to the petitioner Josefina
Valmonte. Let this case be remanded to the court a quo for further and
concomitant proceedings.[4]
The assailed Resolution denied petitioners Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:

x x x: Like so many others before him, Placido toiled and lived for a long
time in the United States until he finally reached retirement. In 1980,
Placido finally came home to stay in the Philippines, and he lived in the
house and lot located at #9200 Catmon St., San Antonio Village, Makati,
which he owned in common with his sister Ciriaca Valmonte and titled in
their names in TCT 123468. Two years after his arrival from the United
States and at the age of 80 he wed Josefina who was then 28 years old, in
a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982.
But in a little more than two years of wedded bliss, Placido died on October
8, 1984 of a cause written down as COR PULMONALE.
Placido executed a notarial last will and testament written in English and
consisting of two (2) pages, and dated June 15, 1983 but acknowledged
only on August 9, 1983. The first page contains the entire testamentary
dispositions and a part of the attestation clause, and was signed at the end
or bottom of that page by the testator and on the left hand margin by the
three instrumental witnesses. The second page contains the continuation
of the attestation clause and the acknowledgment, and was signed by the
witnesses at the end of the attestation clause and again on the left hand
margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE
LORD AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag
Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila, 83
years of age and being of sound and disposing mind and memory, do
hereby declare this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices
of the Catholic Church in accordance with the rites and said Church and
that a suitable monument to be erected and provided my by executrix
(wife) to perpetuate my memory in the minds of my family and friends;
2.
I give, devise and bequeath unto my loving wife, JOSEFINA C.
VALMONTE, one half (1/2) portion of the follow-described properties, which
belongs to me as [co-owner]:
a.
Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated
in Makati, Metro Manila, described and covered by TCT No. 123468 of the
Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners
with my deceased sister (Ciriaca Valmonte), having share and share alike;

26
b.
2-storey building standing on the above-described property, made of
strong and mixed materials used as my residence and my wife and located
at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax
Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name of
my deceased sister, Ciriaca Valmonte and myself as co-owners, share and
share alike or equal co-owners thereof;
3.
All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA which is in the
possession of my nephew, and all others whatsoever and wherever found, I
give, devise and bequeath to my said wife, Josefina C. Valmonte;
4.
I hereby appoint my wife, Josefina C. Valmonte as sole executrix of
my last will and testament, and it is my will that said executrix be exempt
from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June
1983 in Quezon City, Philippines.
The allowance to probate of this will was opposed by Leticia on the grounds
that:
1.
Petitioner failed to allege all assets of the testator,
especially those found in the USA;
2.
Petitioner failed to state the names, ages, and
residences of the heirs of the testator; or to give them proper notice
pursuant to law;
3.
Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;
4.
Testator was mentally incapable to make a will at the time of the
alleged execution he being in an advance sate of senility;
5.

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

6.
Will was procured by undue and improper influence and pressure on
the part of the petitioner and/or her agents and/or assistants; and/or
7.
Signature of testator was procured by fraud, or trick, and he did not
intend that the instrument should be his will at the time of affixing his
signature thereto; and she also opposed the appointment as Executrix of
Josefina alleging her want of understanding and integrity.

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

According to Josefina after her marriage with the testator they lived in her
parents house at Salingcob, Bacnotan, La Union but they came to Manila
every month to get his $366.00 monthly pension and stayed at the said
Makati residence. There were times though when to shave off on expenses,
the testator would travel alone. And it was in one of his travels by his
lonesome self when the notarial will was made. The will was witnessed by
the spouses Eugenio and Feliza Gomez, who were their wedding sponsors,
and by Josie Collado. Josefina said she had no knowledge of the existence
of the last will and testament of her husband, but just serendipitously
found it in his attache case after his death. It was only then that she
learned that the testator bequeathed to her his properties and she was
named the executrix in the said will. To her estimate, the value of property
both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered mental
infirmity because despite his old age he went alone to the market which is
two to three kilometers from their home cooked and cleaned the kitchen
and sometimes if she could not accompany him, even traveled to Manila
alone to claim his monthly pension. Josefina also asserts that her husband
was in good health and that he was hospitalized only because of a cold but
which eventually resulted in his death.
Notary Public Floro Sarmiento, the notary public who notarized the
testators will, testified that it was in the first week of June 1983 when the
testator together with the three witnesses of the will went to his house
cum law office and requested him to prepare his last will and testament.
After the testator instructed him on the terms and dispositions he wanted
on the will, the notary public told them to come back on June 15, 1983 to
give him time to prepare it. After he had prepared the will the notary public
kept it safely hidden and locked in his drawer. The testator and his
witnesses returned on the appointed date but the notary public was out of
town so they were instructed by his wife to come back on August 9, 1983,
and which they did. Before the testator and his witnesses signed the
prepared will, the notary public explained to them each and every term
thereof in Ilocano, a dialect which the testator spoke and understood. He
likewise explained that though it appears that the will was signed by the

27
testator and his witnesses on June 15, 1983, the day when it should have
been executed had he not gone out of town, the formal execution was
actually on August 9, 1983. He reasoned that he no longer changed the
typewritten date of June 15, 1983 because he did not like the document to
appear dirty. The notary public also testified that to his observation the
testator was physically and mentally capable at the time he affixed his
signature on the will.

2.
Mental incapacity of the testator at the time of the execution of the
will as he was then in an advanced state of senility

The attesting witnesses to the will corroborated the testimony of the

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

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

The oppositor Leticia declared that Josefina should not inherit alone
because aside from her there are other children from the siblings of Placido
who are just as entitled to inherit from him. She attacked the mental
capacity of the testator, declaring that at the time of the execution of the
notarial will the testator was already 83 years old and was no longer of
sound mind. She knew whereof she spoke because in 1983 Placido lived in
the Makati residence and asked Leticias family to live with him and they
took care of him. During that time, the testators physical and mental
condition showed deterioration, aberrations and senility. This was
corroborated by her daughter Mary Jane Ortega for whom Placido took a
fancy and wanted to marry.
Sifting through the evidence, the court a quo held that [t]he evidence
adduced, reduces the opposition to two grounds, namely:
1.
Non-compliance with the legal solemnities and formalities in the
execution and attestation of the will; and

It then found these grounds extant and proven, and accordingly disallowed
probate.[5]
Ruling of the Court of Appeals

Hence, this Petition.[7]

Issues
Petitioner raises the following issues for our consideration:
I.
II.

III.

Whether or not the findings of the probate court are entitled to

great respect.
Whether or not the signature of Placido Valmonte in the subject
will was procured by fraud or trickery, and that Placido
Valmonte never intended that the instrument should be his last
will and testament.
Whether or not Placido Valmonte has testamentary capacity at
the time he allegedly executed the subject will.[8]

In short, petitioner assails the CAs allowance of the probate of the will of
Placido Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a
Petition for Review under Section 1 of Rule 45 of the Rules of Court. As an
exception, however, the evidence presented during the trial may be

28
examined and the factual matters resolved by this Court when, as in the
instant case, the findings of fact of the appellate court differ from those of
the trial court.[9]
The fact that public policy favors the probate of a will does not necessarily
mean that every will presented for probate should be allowed. The law lays
down the procedures and requisites that must be satisfied for the probate
of a will.[10] Verily, Article 839 of the Civil Code states the instances when
a will may be disallowed, as follows:
Article 839. The will shall be disallowed in any of the following cases:
(1)

If the formalities required by law have not been complied with;

(2)
If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3)
If it was executed through force or under duress, or the influence of
fear, or threats;
(4)
If it was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
(5)

If the signature of the testator was procured by fraud;

(6)
If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his signature
thereto.

Petitioner contends that it was highly dubious for a woman at the prime of
her young life [to] almost immediately plunge into marriage with a man
who [was] thrice her age x x x and who happened to be [a] Fil-American
pensionado,[11] thus casting doubt on the intention of respondent in
seeking the probate of the will. Moreover, it supposedly defies human
reason, logic and common experience[12] for an old man with a severe
psychological condition to have willingly signed a last will and testament.
We are not convinced. Fraud is a trick, secret device, false statement, or
pretense, by which the subject of it is cheated. It may be of such character
that the testator is misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the testator is led to make
a certain will which, but for the fraud, he would not have made.[13]
We stress that the party challenging the will bears the burden of proving
the existence of fraud at the time of its execution.[14] The burden to show
otherwise shifts to the proponent of the will only upon a showing of
credible evidence of fraud.[15] Unfortunately in this case, other than the
self-serving allegations of petitioner, no evidence of fraud was ever
presented.
It is a settled doctrine that the omission of some relatives does not affect
the due execution of a will.[16] That the testator was tricked into signing it
was not sufficiently established by the fact that he had instituted his wife,
who was more than fifty years his junior, as the sole beneficiary; and
disregarded petitioner and her family, who were the ones who had taken
the cudgels of taking care of [the testator] in his twilight years.[17]

In the present case, petitioner assails the validity of Placido Valmontes will
by imputing fraud in its execution and challenging the testators state of
mind at the time.
Existence of Fraud in the Execution of a Will
Petitioner does not dispute the due observance of the formalities in the
execution of the will, but maintains that the circumstances surrounding it
are indicative of the existence of fraud. Particularly, she alleges that
respondent, who is the testators wife and sole beneficiary, conspired with
the notary public and the three attesting witnesses in deceiving Placido to
sign it. Deception is allegedly reflected in the varying dates of the
execution and the attestation of the will.

Moreover, as correctly ruled by the appellate court, the conflict between

the dates appearing on the will does not invalidate the document, because
the law does not even require that a [notarial] will x x x be executed and
acknowledged on the same occasion.[18] More important, the will must be
subscribed by the testator, as well as by three or more credible witnesses
who must also attest to it in the presence of the testator and of one
another.[19] Furthermore, the testator and the witnesses must
acknowledge the will before a notary public.[20] In any event, we agree
with the CA that the variance in the dates of the will as to its supposed
execution and attestation was satisfactorily and persuasively explained by
the notary public and the instrumental witnesses.[21]

29
The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted
by the CA -- are reproduced respectively as follows:
Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15 when the
testator and his witnesses were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your
house?
A They did as of agreement but unfortunately, I was out of town.
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when the
document was acknowledged?

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go
back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed, who
were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985,
pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three
times?

Q What about the date when the testator and the three witnesses affixed
their respective signature on the first and second pages of exhibit C?

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

A On that particular date when it was acknowledged, August 9, 1983.

Josie Collado:

Q Why did you not make the necessary correction on the date appearing
on the body of the document as well as the attestation clause?

Q When you did not find Atty. Sarmiento in his house on June 15, 1983,
what transpired?

A Because I do not like anymore to make some alterations so I put it in my

own handwriting August 9, 1983 on the acknowledgement. (tsn, June 11,
1985, pp. 8-10)

A The wife of Atty. Sarmiento told us that we will be back on August 9,

1983.

A Yes sir.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Eugenio Gomez:
Q For what purpose?
Q It appears on the first page Mr. Witness that it is dated June 15, 1983,
whereas in the acknowledgement it is dated August 9, 1983, will you look
at this document and tell us this discrepancy in the date?

A Our purpose is just to sign the will.

A We went to Atty. Sarmiento together with Placido Valmonte and the two
witnesses; that was first week of June and Atty. Sarmiento told us to return
on the 15th of June but when we returned, Atty. Sarmiento was not there.

Q Were you able to sign the will you mentioned?

30
A Yes sir. (tsn, October 21, 1987, pp. 4-5)[22]
Notably, petitioner failed to substantiate her claim of a grand conspiracy in
the commission of a fraud. There was no showing that the witnesses of the
proponent stood to receive any benefit from the allowance of the will. The
testimonies of the three subscribing witnesses and the notary are credible
evidence of its due execution.[23] Their testimony favoring it and the
finding that it was executed in accordance with the formalities required by
law should be affirmed, absent any showing of ill motives.[24]
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code
gives the following guidelines:
Article 798. In order to make a will it is essential that the testator be of
sound mind at the time of its execution.
Article 799. To be of sound mind, it is not necessary that the testator be in
full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or shattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will
to know the nature of the estate to be disposed of, the proper objects of
his bounty, and the character of the testamentary act.
Article 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the
will; but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the validity of the
will must prove that the testator made it during a lucid interval.
According to Article 799, the three things that the testator must have the
ability to know to be considered of sound mind are as follows: (1) the
nature of the estate to be disposed of, (2) the proper objects of the
testators bounty, and (3) the character of the testamentary act. Applying
this test to the present case, we find that the appellate court was correct in
holding that Placido had testamentary capacity at the time of the
execution of his will.

It must be noted that despite his advanced age, he was still able to
identify accurately the kinds of property he owned, the extent of his shares
in them and even their locations. As regards the proper objects of his
bounty, it was sufficient that he identified his wife as sole beneficiary. As
we have stated earlier, the omission of some relatives from the will did not
affect its formal validity. There being no showing of fraud in its execution,
intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,
[25] which held thus:
"Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that degrees
of mental aberration generally known as insanity or idiocy, there are
numberless degrees of mental capacity or incapacity and while on one
hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of
making a will; a weak or feebleminded person may make a valid will,
provided he has understanding and memory sufficient to enable him to
know what he is about to do and how or to whom he is disposing of his
property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or
otherwise. It has been held that testamentary incapacity does not
necessarily require that a person shall actually be insane or of unsound
mind."[26]
WHEREFORE, the Petition is DENIED, and the assailed Decision and
Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
FACTS:
Two years after the arrival of Placido from the United States and at the age
of 80 he wed Josefina who was then 28 years old. But in a little more than
two years of wedded bliss, Placido died. Placido executed a notarial last will
and testament written in English and consisting of 2 pages, and dated 15
June 1983but acknowledged only on 9 August 1983.
The allowance to probate of this will was opposed by Leticia, Placidos
sister. According to the notary public who notarized the testators will, after
the te

31
stator instructed him on the terms and dispositions he wanted on the will,
the notary public told them to come back on 15 August 1983 to give him
time to prepare. The testator and his witnesses returned on the appointed
date but the notary public was out of town so they were instructed by his
wife to come back on 9 August 1983. The formal execution was actually on
9 August 1983. He reasoned he no longer changed the typewritten date of
15 June 1983 because he did not like the document to appear dirty.
Petitioners argument:
1. At the time of the execution of the notarial will Placido was already 83
years old and was no longer of sound mind. 2. Josefina conspired with the
notary public and the 3 attesting witnesses in deceiving Placido to sign it.
Deception is allegedly reflected in the varying dates of the execution and
the attestation of the will.
ISSUE:
1. W/N Placido has testamentary capacity at the time he allegedly
executed the will. 2. W/N the signature of Placido in the will was procured
by fraud or trickery.
HELD:
1. YES. Despite his advanced age, he was still able to identify accurately
the kinds of property he owned, the extent of his shares in them and even
their location. As regards the proper objects of his bounty, it was sufficient
that he identified his wife as sole beneficiary. The omission of some
relatives from the will did not affect its formal validity. There being no
showing of fraud in its execution, intent in its disposition becomes
irrelevant. 2. NO. Fraud is a trick, secret devise, false statement, or
pretense, by which the subject of it is cheated. It may be of such character
that the testator is misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the testator is led to make
a certain will which, but for fraud, he would not have made. The party
challenging the will bears the burden of proving the existence of fraud at
the time of its execution. The burden to show otherwise shifts to the
proponent of the will only upon a showing of credible evidence of fraud.
Omission of some relatives does not affect the due execution of a will.
Moreover, the conflict between the dates appearing on the will does not
invalidate the document,

because the law does not even require that a notarial will be executed
and
acknowledged on the same occasion. The variance in the dates of the will
as to its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and instrumental witnesses.

32
FIRST DIVISION
ANTONIO B. BALTAZAR,

G.R. No. 174489

Petitioners call us to reverse the CAs assailed Decision and instead affirm
the Decision of the RTC which disallowed the notarial will of Paciencia.

Petitioners,
- versus LORENZO LAXA,
Respondent.
April 11, 2012
x------------------------------------------------------------------x
DECISION
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to clearly
establish that the decedent was not of sound and disposing mind at the
time of the execution of said will. Otherwise, the state is duty-bound to
give full effect to the wishes of the testator to distribute his estate in the
manner provided in his will so long as it is legally tenable.[1]
Before us is a Petition for Review on Certiorari[2] of the June 15, 2006
Decision[3] of the Court of Appeals (CA) in CA-G.R. CV No. 80979 which
reversed the September 30, 2003 Decision[4] of the Regional Trial Court
(RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-1186.
The assailed CA Decision granted the petition for probate of the notarial
will of Paciencia Regala (Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be impressed with
merit, the decision in SP. PROC. NO. G-1186 dated 30 September 2003, is
hereby SET ASIDE and a new one entered GRANTING the petition for the
probate of the will of PACIENCIA REGALA.
SO ORDERED.[5]
Also assailed herein is the August 31, 2006 CA Resolution[6] which denied
the Motion for Reconsideration thereto.

Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and
testament entitled Tauli Nang Bilin o Testamento Miss Paciencia Regala[7]
(Will) in the Pampango dialect on September 13, 1981. The Will, executed
in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read
to Paciencia twice. After which, Paciencia expressed in the presence of the
instrumental witnesses that the document is her last will and testament.
She thereafter affixed her signature at the end of the said document on
page 3[8] and then on the left margin of pages 1, 2 and 4 thereof.[9]
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin),
Francisco Garcia (Francisco) and Faustino R. Mercado (Faustino). The three
attested to the Wills due execution by affixing their signatures below its
attestation clause[10] and on the left margin of pages 1, 2 and 4 thereof,
[11] in the presence of Paciencia and of one another and of Judge Limpin
who acted as notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her
properties to respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F.
Laxa and their children Luna Lorella Laxa and Katherine Ross Laxa, thus:
Fourth - In consideration of their valuable services to me since then up to
the present by the spouses LORENZO LAXA and CORAZON F. LAXA, I
hereby BEQUEATH, CONVEY and GIVE all my properties enumerated in
parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA
and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the
spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos,
presently residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their
children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of
legal age and living with their parents who would decide to bequeath since
they are the children of the spouses;
[Sixth] - Should other properties of mine may be discovered aside from the
properties mentioned in this last will and testament, I am also bequeathing
and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa
and their two children and I also command them to offer masses yearly for
the repose of my soul and that of D[]a Nicomeda Regala, Epifania Regala

33
and their spouses and with respect to the fishpond situated at San Antonio,
I likewise command to fulfill the wishes of D[]a Nicomeda Regala in
accordance with her testament as stated in my testament. x x x[12]
The filial relationship of Lorenzo with Paciencia remains undisputed.
Lorenzo is Paciencias nephew whom she treated as her own son.
Conversely, Lorenzo came to know and treated Paciencia as his own
mother.[13] Paciencia lived with Lorenzos family in Sasmuan, Pampanga
and it was she who raised and cared for Lorenzo since his birth. Six days
after the execution of the Will or on September 19, 1981, Paciencia left for
the United States of America (USA). There, she resided with Lorenzo and
his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27, 2000,
Lorenzo filed a petition[14] with the RTC of Guagua, Pampanga for the
probate of the Will of Paciencia and for the issuance of Letters of
Administration in his favor, docketed as Special Proceedings No. G-1186.
There being no opposition to the petition after its due publication, the RTC
issued an Order on June 13, 2000[15] allowing Lorenzo to present evidence
on June 22, 2000. On said date, Dra. Limpin testified that she was one of
the instrumental witnesses in the execution of the last will and testament
of Paciencia on September 13, 1981.[16] The Will was executed in her
fathers (Judge Limpin) home office, in her presence and of two other
witnesses, Francisco and Faustino.[17] Dra. Limpin positively identified the
Will and her signatures on all its four pages.[18] She likewise positively
identified the signature of her father appearing thereon.[19] Questioned by
the prosecutor regarding Judge Limpins present mental fitness, Dra. Limpin
testified that her father had a stroke in 1991 and had to undergo brain
surgery.[20] The judge can walk but can no longer talk and remember her
name. Because of this, Dra. Limpin stated that her father can no longer
testify in court.[21]
The following day or on June 23, 2000, petitioner Antonio Baltazar
(Antonio) filed an opposition[22] to Lorenzos petition. Antonio averred that
the properties subject of Paciencias Will belong to Nicomeda Regala
Mangalindan, his predecessor-in-interest; hence, Paciencia had no right to
bequeath them to Lorenzo.[23]
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners
Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores,

Rafael Titco, Rosie M. Mateo (Rosie) and Antonio L. Mangalindan filed a

Supplemental Opposition[24] contending that Paciencias Will was null and
void because ownership of the properties had not been transferred and/or
titled to Paciencia before her death pursuant to Article 1049, paragraph 3
of the Civil Code.[25] Petitioners also opposed the issuance of Letters of
Administration in Lorenzos favor arguing that Lorenzo was disqualified to
be appointed as such, he being a citizen and resident of the USA.[26]
Petitioners prayed that Letters of Administration be instead issued in favor
of Antonio.[27]
Later still on September 26, 2000, petitioners filed an Amended
Opposition[28] asking the RTC to deny the probate of Paciencias Will on the
following grounds: the Will was not executed and attested to in accordance
with the requirements of the law; that Paciencia was mentally incapable to
make a Will at the time of its execution; that she was forced to execute the
Will under duress or influence of fear or threats; that the execution of the
Will had been procured by undue and improper pressure and influence by
Lorenzo or by some other persons for his benefit; that the signature of
Paciencia on the Will was forged; that assuming the signature to be
genuine, it was obtained through fraud or trickery; and, that Paciencia did
not intend the document to be her Will. Simultaneously, petitioners filed an
Opposition and Recommendation[29] reiterating their opposition to the
appointment of Lorenzo as administrator of the properties and requesting
for the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order[30] denying the requests of
both Lorenzo and Antonio to be appointed administrator since the former is
a citizen and resident of the USA while the latters claim as a co-owner of
the properties subject of the Will has not yet been established.
Meanwhile, proceedings on the petition for the probate of the Will
continued. Dra. Limpin was recalled for cross-examination by the
petitioners. She testified as to the age of her father at the time the latter
notarized the Will of Paciencia; the living arrangements of Paciencia at the
time of the execution of the Will; and the lack of photographs when the
event took place. [31]
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took
the witness stand. Monico, son of Faustino, testified on his fathers
condition. According to him his father can no longer talk and express
himself due to brain damage. A medical certificate was presented to the
court to support this allegation. [32]

34
For his part, Lorenzo testified that: from 1944 until his departure for the
USA in April 1980, he lived in Sasmuan, Pampanga with his family and his
aunt, Paciencia; in 1981 Paciencia went to the USA and lived with him and
his family until her death in January 1996; the relationship between him
and Paciencia was like that of a mother and child since Paciencia took care
of him since birth and took him in as an adopted son; Paciencia was a
spinster without children, and without brothers and sisters; at the time of
Paciencias death, she did not suffer from any mental disorder and was of
sound mind, was not blind, deaf or mute; the Will was in the custody of
Judge Limpin and was only given to him after Paciencias death through
Faustino; and he was already residing in the USA when the Will was
executed.[33] Lorenzo positively identified the signature of Paciencia in
three different documents and in the Will itself and stated that he was
familiar with Paciencias signature because he accompanied her in her
transactions.[34] Further, Lorenzo belied and denied having used force,
intimidation, violence, coercion or trickery upon Paciencia to execute the
Will as he was not in the Philippines when the same was executed.[35] On
cross-examination, Lorenzo clarified that Paciencia informed him about the
Will shortly after her arrival in the USA but that he saw a copy of the Will
only after her death.[36]
As to Francisco, he could no longer be presented in court as he already
died on May 21, 2000.
For petitioners, Rosie testified that her mother and Paciencia were first
cousins.[37] She claimed to have helped in the household chores in the
house of Paciencia thereby allowing her to stay therein from morning until
evening and that during the period of her service in the said household,
Lorenzos wife and his children were staying in the same house.[38] She
served in the said household from 1980 until Paciencias departure for the
USA on September 19, 1981.[39]
On September 13, 1981, Rosie claimed that she saw Faustino bring
something for Paciencia to sign at the latters house.[40] Rosie admitted,
though, that she did not see what that something was as same was placed
inside an envelope.[41] However, she remembered Paciencia instructing
Faustino to first look for money before she signs them.[42] A few days after
or on September 16, 1981, Paciencia went to the house of Antonios mother
and brought with her the said envelope.[43] Upon going home, however,
the envelope was no longer with Paciencia.[44] Rosie further testified that
Paciencia was referred to as magulyan or forgetful because she would
sometimes leave her wallet in the kitchen then start looking for it moments
later.[45] On cross examination, it was established that Rosie was neither a

doctor nor a psychiatrist, that her conclusion that Paciencia was magulyan
was based on her personal assessment,[46] and that it was Antonio who
requested her to testify in court.[47]
In his direct examination, Antonio stated that Paciencia was his aunt.[48]
He identified the Will and testified that he had seen the said document
before because Paciencia brought the same to his mothers house and
showed it to him along with another document on September 16, 1981.
[49] Antonio alleged that when the documents were shown to him, the
same were still unsigned.[50] According to him, Paciencia thought that the
documents pertained to a lease of one of her rice lands,[51] and it was he
who explained that the documents were actually a special power of
attorney to lease and sell her fishpond and other properties upon her
departure for the USA, and a Will which would transfer her properties to
Lorenzo and his family upon her death.[52] Upon hearing this, Paciencia
allegedly uttered the following words: Why will I never [return], why will I
sell all my properties? Who is Lorenzo? Is he the only [son] of God? I have
other relatives [who should] benefit from my properties. Why should I die
already?[53] Thereafter, Antonio advised Paciencia not to sign the
documents if she does not want to, to which the latter purportedly replied,
I know nothing about those, throw them away or it is up to you. The more I
will not sign them.[54] After which, Paciencia left the documents with
Antonio. Antonio kept the unsigned documents and eventually turned them
over to Faustino on September 18, 1981.[55]
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision[56] denying the
petition thus:

WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000;
and (b) disallows the notarized will dated September 13, 1981 of Paciencia
Regala.

SO ORDERED.[57]
The trial court gave considerable weight to the testimony of Rosie and
concluded that at the time Paciencia signed the Will, she was no longer

35
possessed of sufficient reason or strength of mind to have testamentary
capacity.[58]
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the probate of
the Will of Paciencia. The appellate court did not agree with the RTCs
conclusion that Paciencia was of unsound mind when she executed the
Will. It ratiocinated that the state of being magulyan does not make a
person mentally unsound so [as] to render [Paciencia] unfit for executing a
Will.[59] Moreover, the oppositors in the probate proceedings were not
able to overcome the presumption that every person is of sound mind.
Further, no concrete circumstances or events were given to prove the
allegation that Paciencia was tricked or forced into signing the Will.[60]
Petitioners moved for reconsideration[61] but the motion was denied by
the CA in its Resolution[62] dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on
Certiorari ascribing upon the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT
ALLOWED THE PROBATE OF PACIENCIAS WILL DESPITE RESPONDENTS
UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF
COURT;

II.

The pivotal issue is whether the authenticity and due execution of the
notarial Will was sufficiently established to warrant its allowance for
probate.
Our Ruling
We deny the petition.
Faithful compliance with the formalitieslaid down by law is apparent from
the face of the Will. Courts are tasked to determine nothing more than the
extrinsic validity of a
Will in probate proceedings.[64] This is expressly provided for in Rule 75,
Section 1 of the Rules of Court, which states:
Rule 75
PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY.
Section 1. Allowance necessary. Conclusive as to execution. No will shall
pass either real or personal estate unless it is proved and allowed in the
proper court. Subject to the right of appeal, such allowance of the will shall
be conclusive as to its due execution.
Due execution of the will or its extrinsic validity pertains to whether the
testator, being of sound mind, freely executed the will in accordance with
the formalities prescribed by law.[65] These formalities are enshrined in
Articles 805 and 806 of the New Civil Code, to wit:
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.

III.

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 HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT

PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND
AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED[63]

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

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING

CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;

36
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.

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

If the attestation clause is in a language not known to the witnesses, it

shall be interpreted to them.

In this case, apart from the testimony of Rosie pertaining to Paciencias

forgetfulness, there is no substantial evidence, medical or otherwise, that
would show that Paciencia was of unsound mind at the time of the
execution of the Will. On the other hand, we find more worthy of credence
Dra. Limpins testimony as to the soundness of mind of Paciencia when the
latter went to Judge Limpins house and voluntarily executed the Will. The
testimony of subscribing witnesses to a Will concerning the testators
mental condition is entitled to great weight where they are truthful and
intelligent.[69] More importantly, a testator is presumed to be of sound
mind at the time of the execution of the Will and the burden to prove
otherwise lies on the oppositor. Article 800 of the New Civil Code states:

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.
Here, a careful examination of the face of the Will shows faithful
compliance with the formalities laid down by law. The signatures of the
testatrix, Paciencia, her instrumental witnesses and the notary public, are
all present and evident on the Will. Further, the attestation clause explicitly
states the critical requirement that the testatrix and her instrumental
witnesses signed the Will in the presence of one another and that the
witnesses attested and subscribed to the Will in the presence of the
testator and of one another. In fact, even the petitioners acceded that the
signature of Paciencia in the Will may be authentic although they question
her state of mind when she signed the same as well as the voluntary
nature of said act.
The burden to prove that Paciencia was of unsound mind at the time of the
execution of the will lies on the shoulders of the petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was magulyan
or forgetful so much so that it effectively stripped her of testamentary
capacity. They likewise claimed in their Motion for Reconsideration[66] filed
with the CA that Paciencia was not only magulyan but was actually
suffering from paranoia.[67]
We are not convinced.
We agree with the position of the CA that the state of being forgetful does
not necessarily make a person mentally unsound so as to render him unfit
to execute a Will.[68] Forgetfulness is not equivalent to being of unsound
mind. Besides, Article 799 of the New Civil Code states:

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

Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the
will; but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the validity of the
will must prove that the testator made it during a lucid interval.
Here, there was no showing that Paciencia was publicly known to be insane
one month or less before the making of the Will. Clearly, thus, the burden
to prove that Paciencia was of unsound mind lies upon the shoulders of
petitioners. However and as earlier mentioned, no substantial evidence
was presented by them to prove the same, thereby warranting the CAs
finding that petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the nature of
her estate to be disposed of, the proper objects of her bounty and the
character of the testamentary act. As aptly pointed out by the CA
A scrutiny of the Will discloses that [Paciencia] was aware of the nature of
the document she executed. She specially requested that the customs of
her faith be observed upon her death. She was well aware of how she
acquired the properties from her parents and the properties she is
bequeathing to LORENZO, to his wife CORAZON and to his two (2) children.
A third child was born after the execution of the will and was not included
therein as devisee.[70]

37
Bare allegations of duress or influence of fear or threats, undue and
improper influence and pressure, fraud and trickery cannot be used as
basis to deny the probate of a will.
An essential element of the validity of the Will is the willingness of the
testator or testatrix to execute the document that will distribute his/her
earthly possessions upon his/her death. Petitioners claim that Paciencia
was forced to execute the Will under duress or influence of fear or threats;
that the execution of the Will had been procured by undue and improper
pressure and influence by Lorenzo or by some other persons for his
benefit; and that assuming Paciencias signature to be genuine, it was
obtained through fraud or trickery. These are grounded on the alleged
conversation between Paciencia and Antonio on September 16, 1981
wherein the former purportedly repudiated the Will and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and
treated Lorenzo as her own son and that love even extended to Lorenzos
wife and children. This kind of relationship is not unusual. It is in fact not
unheard of in our culture for old maids or spinsters to care for and raise
their nephews and nieces and treat them as their own children. Such is a
prevalent and accepted cultural practice that has resulted in many family
discords between those favored by the testamentary disposition of a
testator and those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencias
relationship with Lorenzo and his family is different from her relationship
with petitioners. The very fact that she cared for and raised Lorenzo and
lived with him both here and abroad, even if the latter was already married
and already has children, highlights the special bond between them. This
unquestioned relationship between Paciencia and the devisees tends to
support the authenticity of the said document as against petitioners
allegations of duress, influence of fear or threats, undue and improper
influence, pressure, fraud, and trickery which, aside from being factual in
nature, are not supported by concrete, substantial and credible evidence
on record. It is worth stressing that bare arguments, no matter how
forceful, if not based on concrete and substantial evidence cannot suffice
to move the Court to uphold said allegations.[71] Furthermore, a purported
will is not [to be] denied legalization on dubious grounds. Otherwise, the
very institution of testamentary succession will be shaken to its foundation,
for even if a will has been duly executed in fact, whether x x x it will be

probated would have to depend largely on the attitude of those interested

in [the estate of the deceased].[72]
Court should be convinced by the evidence presented before it that the
Will was duly executed.
Petitioners dispute the authenticity of Paciencias Will on the ground that
Section 11 of Rule 76 of the Rules of Court was not complied with. It
provides:
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Section 11. Subscribing witnesses produced or accounted for where will
contested. If the will is contested, all the subscribing witnesses, and the
notary in the case of wills executed under the Civil Code of the Philippines,
if present in the Philippines and not insane, must be produced and
examined, and the death, absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of such witnesses are
present in the Philippines but outside the province where the will has been
filed, their deposition must be taken. If any or all of them testify against
the due execution of the will, or do not remember having attested to it, or
are otherwise of doubtful credibility, the will may nevertheless, be allowed
if the court is satisfied from the testimony of other witnesses and from all
the evidence presented that the will was executed and attested in the
manner required by law.
If a holographic will is contested, the same shall be allowed if at least three
(3) witnesses who know the handwriting of the testator explicitly declare
that the will and the signature are in the handwriting of the testator; in the
absence of any competent witnesses, and if the court deem it necessary,
expert testimony may be resorted to. (Emphasis supplied.)
They insist that all subscribing witnesses and the notary public should have
been presented in court since all but one witness, Francisco, are still living.
We cannot agree with petitioners.
We note that the inability of Faustino and Judge Limpin to appear and
testify before the court was satisfactorily explained during the probate
proceedings. As testified to by his son, Faustino had a heart attack, was
already bedridden and could no longer talk and express himself due to
brain damage. To prove this, said witness presented the corresponding

38
medical certificate. For her part, Dra. Limpin testified that her father, Judge
Limpin, suffered a stroke in 1991 and had to undergo brain surgery. At that
time, Judge Limpin could no longer talk and could not even remember his
daughters name so that Dra. Limpin stated that given such condition, her
father could no longer testify. It is well to note that at that point, despite
ample opportunity, petitioners neither interposed any objections to the
testimonies of said witnesses nor challenged the same on cross
examination. We thus hold that for all intents and purposes, Lorenzo was
able to satisfactorily account for the incapacity and failure of the said
subscribing witness and of the notary public to testify in court. Because of
this the probate of Paciencias Will may be allowed on the basis of Dra.
Limpins testimony proving her sanity and the due execution of the Will, as
well as on the proof of her handwriting. It is an established rule that [a]
testament may not be disallowed just because the attesting witnesses
declare against its due execution; neither does it have to be necessarily
allowed just because all the attesting witnesses declare in favor of its
legalization; what is decisive is that the court is convinced by evidence
before it, not necessarily from the attesting witnesses, although they must
testify, that the will was or was not duly executed in the manner required
by law.[73]
Moreover, it bears stressing that [i]rrespective x x x of the posture of any
of the parties as regards the authenticity and due execution of the will x x
x in question, it is the mandate of the law that it is the evidence before the
court and/or [evidence that] ought to be before it that is controlling.[74]
The very existence of [the Will] is in itself prima facie proof that the
supposed [testatrix] has willed that [her] estate be distributed in the
manner therein provided, and it is incumbent upon the state that, if legally
tenable, such desire be given full effect independent of the attitude of the
parties affected thereby.[75] This, coupled with Lorenzos established
relationship with Paciencia, the evidence and the testimonies of
disinterested witnesses, as opposed to the total lack of evidence presented
by petitioners apart from their self-serving testimonies, constrain us to tilt
the balance in favor of the authenticity of the Will and its allowance for
probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and
the Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV
No. 80979 are AFFIRMED.
SO ORDERED.
FACTS:

Paciencia was a 78 year old spinster when she made her last will and
testament entitled
Tauli Nang Bilin o Testamento Miss Paciencia Regala
(Will) in the Pampango dialect onSeptember 13, 1981. The Will, executed in
the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to
Paciencia twice. After which, Paciencia expressed in the presence of
theinstrumental witnesses that the document is her last will and
testament. She thereafter affixed her signature at the end of the said
document on page s] and then on the left margin of pages 1, 2 and
4thereof.The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra.
Limpin), Francisco Garcia(Francisco) and Faustino R. Mercado (Faustino).
The three attested to the Wills due execution by affixing their signatures
below its attestation clause and on the left margin of pages 1, 2 and
4thereof, in the presence of Paciencia and of one another and of Judge
Limpin who acted as notary public. Childless and without any brothers or
sisters, Paciencia bequeathed all her properties to respondent Lorenzo R.
Laxa (Lorenzo) and his wife Corazon F. Laxa and their children LunaLorella
Laxa and Katherine Ross Laxa,The filial relationship of Lorenzo with
Paciencia remains undisputed.
Lorenzo is Paciencias nephew whom she treated as her own son.
Conversely, Lorenzo came to know and treated Paciencia as his own
mother.
Paciencia lived with Lorenzos family in Sasmuan, Pampanga and it was she
who raised and cared for Lorenzo since his birth. Six days after the
execution of the Will or on September 19, 1981, Paciencia left for the
United States of America (USA). There, she resided with Lorenzo and his
family until her death on January 4, 1996.In the interim, the Will remained
in the custody of Judge Limpin. More than four years after the death of
Paciencia or on April 27, 2000, Lorenzo filed a petition] with the RTC of
Guagua,Pampanga for the probate of the Will of Paciencia and for the
issuance of Letters of Administration in his favour. Petitioners filed an
Amended Opposition asking the RTC to deny the probate of Paciencias Will
on the following grounds: the Will was not executed and attested to in
accordance with the requirements of the law; that Paciencia was mentally
incapable to make a Will at the time of its execution; that she was forced to
execute the Will under duress or influence of fear or threats; that the
execution of the Will had been procured by undue and improper pressure
and influence by Lorenzo or by some other persons for his benefit; that the

39
signature of Paciencia on the Will was forged; that assuming the signature
to be genuine, it was obtained through fraud or trickery; and, that
Paciencia did not intend the document to be her Will. Simultaneously,
petitioners filed an Opposition and Recommendation reiterating their
opposition to the appointment of Lorenzo as administrator of the properties
and requesting for the appointment of Antonio in his stead.
ISSUE:
Whether Paciencia was not of sound mind at the time the will was allegedly
executed.
RULING:
The state of being forgetful does not necessarily make a person mentally
unsound so as to render him unfit to execute a Will. Forgetfulness is not
equivalent to being of unsound mind. Besides, Article 799 of the New Civil
Code states: To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease, injury or other cause. It
shall be sufficient if the testator was able at the time of making the will to
know the nature of he estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act. Bare allegations of
duress or influence of fear or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as basis to deny the probate of
a will. Here, there was no showing that Paciencia was publicly known to be
insane one month or less before the making of the Will. Clearly, thus, the
burden to prove that Paciencia was of unsound mind lies upon the
shoulders of petitioners. However and as earlier mentioned, no substantial
evidence was presented by them to prove the same, thereby warranting
the CAs finding that petitioners failed to discharge such burden.
Furthermore, the Court is convinced that Paciencia was aware of the nature
of her estate to be disposed of, the proper objects of her bounty and the
character of the testamentary act.

40
THIRD DIVISION
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
sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang tagapag-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.

41
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

Doc. No. 1232 ; NOTARIO PUBLIKO

Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang
Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa
harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa
kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA

The three named witnesses to the will affixed their signatures on the lefthand margin of both pages of the will, but not at the bottom of the
attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees
of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who
was alleged to have resided abroad. Petitioner prayed that the will be
allowed, and that letters testamentary be issued to the designated
executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of
the decedent.2 Geralda Castillo claimed that the will is a forgery, and that
the true purpose of its emergence was so it could be utilized as a defense
in several court cases filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all centering on petitioners
right to occupy the properties of the decedent.3 It also asserted that
contrary to the representations of petitioner, the decedent was actually
survived by 12 legitimate heirs, namely her grandchildren, who were then
residing abroad. Per records, it was subsequently alleged that decedent
was the widow of Bonifacio Igsolo, who died in 1965, 4 and the mother of a
legitimate child, Asuncion E. Igsolo, who predeceased her mother by three
(3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedents
signature did not appear on the second page of the will, and the will was
not properly acknowledged. These twin arguments are among the central
matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10
August 1992.6 The RTC favorably took into account the testimony of the
three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and
Juanito Estrada. The RTC also called to fore "the modern tendency in
respect to the formalities in the execution of a will x x x with the end in
view of giving the testator more freedom in expressing his last

42
wishes;"7 and from this perspective, rebutted oppositors arguments that
the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies
of the subscribing and attesting witnesses, and having in mind the modern
tendency in respect to the formalities in the execution of a will, i.e., the
liberalization of the interpretation of the law on the formal requirements of
a will with the end in view of giving the testator more freedom in
expressing his last wishes, this Court is persuaded to rule that the will in
question is authentic and had been executed by the testatrix in accordance
with law.
On the issue of lack of acknowledgement, this Court has noted that at the
end of the will after the signature of the testatrix, the following statement
is made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang
Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa
harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa
kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by
the subscribing witnesses at the bottom thereof, this Court is of the view
that the signing by the subscribing witnesses on the left margin of the
second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies
the purpose of identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the
attestation did not state the number of pages thereof, it is worthy to note
that the will is composed of only two pages. The first page contains the
entire text of the testamentary dispositions, and the second page contains

the last portion of the attestation clause and acknowledgement. Such

being so, the defects are not of a serious nature as to invalidate the will.
For the same reason, the failure of the testatrix to affix her signature on
the left margin of the second page, which contains only the last portion of
the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on
the will is a forgery, the testimonies of the three subscribing witnesses to
the will are convincing enough to establish the genuineness of the
signature of the testatrix and the due execution of the will. 8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who
had substituted his since deceased mother-in-law, Geralda Castillo. In a
Decision dated 17 August 1995, the Court of Appeals reversed the trial
court and ordered the dismissal of the petition for probate. 9 The Court of
Appeals noted that the attestation clause failed to state the number of
pages used in the will, thus rendering the will void and undeserving of
probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code
that "the number of pages used in a notarial will be stated in the
attestation clause" is merely directory, rather than mandatory, and thus
susceptible to what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles 805 and 806 of
the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.

43
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure
of the attestation clause to state the number of pages of the will. But an
examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the
number of pages of the will.12 There was an incomplete attempt to comply
with this requisite, a space having been allotted for the insertion of the
number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court,
citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of
Andrada.14 In Uy Coque, the Court noted that among the defects of the will
in question was the failure of the attestation clause to state the number of
pages contained in the will.15 In ruling that the will could not be admitted to
probate, the Court made the following consideration which remains highly
relevant to this day: "The purpose of requiring the number of sheets to be
stated in the attestation clause is obvious; the document might easily
be so prepared that the removal of a sheet would completely
change the testamentary dispositions of the will and in the
absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing
the numbers at the top of the following sheets or pages. If, on the
other hand, the total number of sheets is stated in the attestation clause
the falsification of the document will involve the inserting of new pages
and the forging of the signatures of the testator and witnesses in the
margin, a matter attended with much greater difficulty."16

The case of In re Will of Andrada concerned a will the attestation clause of

which failed to state the number of sheets or pages used. This
consideration alone was sufficient for the Court to declare "unanim[ity]
upon the point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied that the x x x
requirement affords additional security against the danger that the will
may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein despite the fact that the attestation
clause did not state the number of pages of the will. Yet the appellate court
itself considered the import of these two cases, and made the following
distinction which petitioner is unable to rebut, and which we adopt with
approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that
the attestation does not state the number of pages used upon which the
will is written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel
Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio
[Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect
that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the
Decisions of the Supreme Court are not applicable in the aforementioned
appeal at bench. This is so because, in the case of "Manuel Singson versus
Emilia Florentino, et al., supra," although the attestation in the subject Will
did not state the number of pages used in the will, however, the same was
found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause shall
state the number of pages or sheets upon which the will is written, which
requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of
the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L.
Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54

44
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 acknowledgment wherein the number of pages of the will should
be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the
Civil Code in 1950, at a time when the statutory provision governing the
formal requirement of wills was Section

618 of the Code of Civil Procedure.22 Reliance on these cases remains

apropos, considering that the requirement that the attestation state the
number of pages of the will is extant from Section 618. 23 However, the
enactment of the Civil Code in 1950 did put in force a rule of interpretation
of the requirements of wills, at least insofar as the attestation clause is
concerned, that may vary from the philosophy that governed these two
cases. Article 809 of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will was in
fact executed and attested in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission,
which stated that "the underlying and fundamental objective permeating
the provisions on the [law] on [wills] in this project consists in the
[liberalization] of the manner of their execution with the end in view of
giving the testator more [freedom] in [expressing] his last wishes. This
objective is in accord with the [modern tendency] in respect to the
formalities in the execution of wills."24 However, petitioner conveniently
omits the qualification offered by the Code Commission in the very same
paragraph he cites from their report, that such liberalization be "but with
sufficient safeguards and restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure and influence upon the
testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by
Justice Regalado, speaking for the Court on the conflicting views on the
manner of interpretation of the legal formalities required in the execution
of the attestation clause in wills.27 Uy Coque and Andrada are cited therein,
along with several other cases, as examples of the application of the rule
of strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though
by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely

45
disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only
check against perjury in the probate proceedings.29 (Emphasis
supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure to state the number of pages
of the will in the attestation clause is one of the defects which cannot be
simply disregarded. In Caneda itself, the Court refused to allow the probate
of a will whose attestation clause failed to state that the witnesses
subscribed their respective signatures to the will in the presence of the
testator and of each other,30 the other omission cited by Justice J.B.L. Reyes
which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands,
is that omission which can be supplied by an examination of the will itself,
without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will
being assailed. However, those omissions which cannot be supplied except
by evidence aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself."31 Thus, a failure by the attestation
clause to state that the testator signed every page can be liberally
construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one
anothers presence should be considered a fatal flaw since the attestation
is the only textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which
the will was written remains a fatal flaw, despite Article 809. The purpose
of the law in requiring the clause to state the number of pages on which
the will is written is to safeguard against possible interpolation or omission
of one or some of its pages and to prevent any increase or decrease in the
pages.33 The failure to state the number of pages equates with the absence
of an averment on the part of the instrumental witnesses as to how many
pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is substantial
compliance with this requirement if the will states elsewhere in it how
many pages it is comprised of, as was the situation
in Singson and Taboada. However, in this case, there could have been no
substantial compliance with the requirements under Article 805 since there
is no statement in the attestation clause or anywhere in the will itself as to
the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply
with the formal requirements as enumerated under Article 805. Whatever
the inclinations of the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe substantially the
same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the
forgery or intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords the public a high
degree of comfort that the testator himself or herself had decided to
convey property post mortem in the manner established in the will.35 The
transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the
testators incontestable desires, and not for the indulgent
admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However,
an examination of the will itself reveals a couple of even more critical
defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on
the left-hand margin of the will, they do not appear at the bottom of the
attestation clause which after all consists of their averments before the
notary public.

46
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of
the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin."37 While three (3) Justices38 considered
the signature requirement had been substantially complied with, a majority
of six (6), speaking through Chief Justice Paras, ruled that the attestation
clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will
do not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct.
The attestation clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses, since
the omission of their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If
an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any
or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses
sign each page of the will, from the requisite that the will be "attested and
subscribed by [the instrumental witnesses]." The respective intents behind
these two classes of signature are distinct from each other. The signatures
on the left-hand corner of every page signify, among others, that the
witnesses are aware that the page they are signing forms part of the will.
On the other hand, the signatures to the attestation clause establish that
the witnesses are referring to the statements contained in the attestation
clause itself. Indeed, the attestation clause is separate and apart from the
disposition of the will. An unsigned attestation clause results in an
unattested will. Even if the instrumental witnesses signed the left-hand

margin of the page containing the unsigned attestation clause, such

signatures cannot demonstrate these witnesses undertakings in the
clause, since the signatures that do appear on the page were directed
towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the
page containing such clause. Without diminishing the value of the
instrumental witnesses signatures on each and every page, the fact must
be noted that it is the attestation clause which contains the utterances
reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state
the number of pages used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another. The only proof in the will that the
witnesses have stated these elemental facts would be their signatures on
the attestation clause.
Thus, the subject will cannot be considered to have been validly attested
to by the instrumental witnesses, as they failed to sign the attestation
clause.
Yet, there is another fatal defect to the will on which the denial of this
petition should also hinge. The requirement under Article 806 that "every
will must be acknowledged before a notary public by the testator and the
witnesses" has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been segregated from the
other requirements under Article 805 and entrusted into a separate
provision, Article 806. The non-observance of Article 806 in this case is
equally as critical as the other cited flaws in compliance with Article 805,
and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa
Lungsod ng Maynila."40 By no manner of contemplation can those words be
construed as an acknowledgment. An acknowledgment is the act of one
who has executed a deed in going before some competent officer or court
and declaring it to be his act or deed.41 It involves an extra step
undertaken whereby the signor actually declares to the notary that the
executor of a document has attested to the notary that the same is his/her
own free act and deed.

47
It might be possible to construe the averment as a jurat, even though it
does not hew to the usual language thereof. A jurat is that part of an
affidavit where the notary certifies that before him/her, the document was
subscribed and sworn to by the executor. 42 Ordinarily, the language of
the jurat should avow that the document was subscribed and sworn before
the notary public, while in this case, the notary public averred that he
himself "signed and notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and swearing in of
the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the
will would nonetheless remain invalid, as the express requirement of Article
806 is that the will be "acknowledged", and not merely subscribed and
sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed
the will as their own free act or deed. The acknowledgment made in a will
provides for another all-important legal safeguard against spurious wills or
those made beyond the free consent of the testator. An acknowledgement
is not an empty meaningless act.43 The acknowledgment coerces the
testator and the instrumental witnesses to declare before an officer of the
law that they had executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent of
the testator. It also provides a further degree of assurance that the testator
is of certain mindset in making the testamentary dispositions to those
persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident
as it is under Article 806. A notarial will that is not acknowledged
before a notary public by the testator and the witnesses is fatally
defective, even if it is subscribed and sworn to before a notary
public.
There are two other requirements under Article 805 which were not fully
satisfied by the will in question. We need not discuss them at length, as
they are no longer material to the
disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left
margin, except the last; and that all the pages shall be numbered

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

48
SECOND DIVISION
G.R. No. 189984

November 12, 2012

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST

WILL AND TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B.
LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L.
TUAZON, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
This Petition for Review on Certiorari assails the March 30, 2009
Decision1 and October 22, 2009 Resolution2 of the Court of Appeals (CA) in
CA-G.R. CV No. 87064 which affirmed the August 26, 2005 Decision 3 of the
Regional Trial Court of Manila, Branch 42 (RTC), in SP. Proc. No. 99-95225
disallowing the probate of the Last Will and Testament of Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy
B. Lopez, and their four legitimate children, namely, petitioner Richard B.
Lopez (Richard) and the respondents Diana Jeanne Lopez (Diana),
Marybeth de Leon (Marybeth) and Victoria L. Tuazon (Victoria) as
compulsory heirs. Before Enriques death, he executed a Last Will and
Testament4 on August 10, 1996 and constituted Richard as his executor
and administrator.

Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary
public who notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco). The
instrumental witnesses testified that after the late Enrique read and signed
the will on each and every page, they also read and signed the same in the
latter's presence and of one another. Photographs of the incident were
taken and presented during trial. Manalo further testified that she was the
one who prepared the drafts and revisions from Enrique before the final
copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his client for more
than 20 years. Prior to August 10, 1996, the latter consulted him in the
preparation of the subject will and furnished him the list of his properties
for distribution among his children. He prepared the will in accordance with
Enrique's instruction and that before the latter and the attesting witnesses
signed it in the presence of one another, he translated the will which was
written in English to Filipino and added that Enrique was in good health and
of sound mind at that time.
On the other hand, the oppositors presented its lone witness, Gregorio B.
Paraon (Paraon), Officer-in-Charge of the Notarial Section, Office of the
Clerk of Court, RTC, Manila. His testimony centered mainly on their findings
that Atty. Nolasco was not a notary public for the City of Manila in 1996,
which on cross examination was clarified after Paraon discovered that Atty.
Nolasco was commissioned as such for the years 1994 to 1997.
Ruling of the RTC

On September 27, 1999, Richard filed a petition for the probate of his
father's Last Will and Testament before the RTC of Manila with prayer for
the issuance of letters testamentary in his favor. Marybeth opposed the
petition contending that the purported last will and testament was not
executed and attested as required by law, and that it was procured by
undue and improper pressure and influence on the part of Richard. The
said opposition was also adopted by Victoria.

In the Decision dated August 26, 2005,5 the RTC disallowed the probate of
the will for failure to comply with Article 805 of the Civil Code which
requires a statement in the attestation clause of the number of pages used
upon which the will is written. It held that while Article 809 of the same
Code requires mere substantial compliance of the form laid down in Article
805 thereof, the rule only applies if the number of pages is reflected
somewhere else in the will with no evidence aliunde or extrinsic evidence
required. While the acknowledgment portion stated that the will consists of
7 pages including the page on which the ratification and acknowledgment
are written, the RTC observed that it has 8 pages including the
acknowledgment portion. As such, it disallowed the will for not having been
executed and attested in accordance with law.

After submitting proofs of compliance with jurisdictional requirements,

Richard presented the attesting witnesses, namely: Reynaldo Maneja;

Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the
Order dated October 26, 2005.6

49
Ruling of the Court of Appeals
On March 30, 2009,7 the CA issued the assailed decision dismissing the
appeal. It held that the RTC erroneously granted Richard's appeal as the
Rules of Court is explicit that appeals in special proceedings, as in this
case, must be made through a record on appeal. Nevertheless, even on the
merits, the CA found no valid reason to deviate from the findings of the
RTC that the failure to state the number of pages of the will in the
attestation clause was fatal. It noted that while Article 809 of the Civil Code
sanctions mere substantial compliance with the formal requirements set
forth in Article 805 thereof, there was a total omission of such fact in the
attestation clause. Moreover, while the acknowledgment of the will made
mention of "7 pages including the page on which the ratification and
acknowledgment are written," the will had actually 8 pages including the
acknowledgment portion thus, necessitating the presentation of evidence
aliunde to explain the discrepancy. Richard's motion for reconsideration
from the decision was likewise denied in the second assailed
Resolution8 dated October 22, 2009.
Hence, the instant petition assailing the propriety of the CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of Wills, particularly, Articles 805
and 809 of the Civil Code provide:
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.1wphi1(underscoring supplied)
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 proved that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805.
The law is clear that the attestation must state the number of pages used
upon which the will is written. The purpose of the law is to safeguard
against possible interpolation or omission of one or some of its pages and
prevent any increase or decrease in the pages.9
While Article 809 allows substantial compliance for defects in the form of
the attestation clause, Richard likewise failed in this respect. The
statement in the Acknowledgment portion of the subject last will and
testament that it "consists of 7 pages including the page on which the
ratification and acknowledgment are written"10 cannot be deemed
substantial compliance. The will actually consists of 8 pages including its
acknowledgment which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence
aliund.11 On this score is the comment of Justice J.B.L. Reyes regarding the
application of Article 809, to wit:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings.12(Emphasis supplied)

50
Hence, the CA properly sustained the disallowance of the will. Moreover, it
correctly ruled that Richard pursued the wrong mode of appeal as Section
2(a), Rule 41 of the Rules of Court explicitly provides that in special
proceedings, as in this case, the appeal shall be made by record on appeal.
WHEREFORE, premises considered, the petition is DENIED.
SO ORDERED.

51
ECOND DIVISION
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR,
ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact,
two other cases directly related to the present one and involving the same
parties had already been decided by us in the past. In G.R. No. L30479, 1which was a petition for certiorari and mandamus instituted by the
petitioners herein, we dismissed the petition ruling that the more
appropriate remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling, the petitioners
commenced in the then Court of First Instance of Iloilo, Special Proceeding
No. 2176, for the probate of the disputed will, which was opposed by the
private respondents presently, Panfilo and Felino both surnamed Maloto.
The trial court dismissed the petition on April 30, 1970. Complaining
against the dismissal, again, the petitioners came to this Court on a
petition for review by certiorari. 2 Acting on the said petition, we set aside
the trial court's order and directed it to proceed to hear the case on the
merits. The trial court, after hearing, found the will to have already been
revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the Intermediate Appellate
Court which, on June 7, 1985, affirmed the order. The petitioners' motion
for reconsideration of the adverse decision proved to be of no avail, hence,
this petition.
For a better understanding of the controversy, a factual account would be
a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto,
and the private respondents Panfilo Maloto and Felino Maloto. Believing

that the deceased did not leave behind a last will and testament, these
four heirs commenced on November 4, 1963 an intestate proceeding for
the settlement of their aunt's estate. The case was instituted in the then
Court of First Instance of Iloilo and was docketed as Special Proceeding No.
1736. However, while the case was still in progress, or to be exact on
February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino
executed an agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four equal parts
among the parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which the court did on
March 21, 1964. That should have signalled the end of the controversy,
but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a
former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the testament,
the original copy, while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First Instance of Iloilo on
April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs
in the said will, Aldina and Constancio are bequeathed much bigger and
more valuable shares in the estate of Adriana than what they received by
virtue of the agreement of extrajudicial settlement they had earlier signed.
The will likewise gives devises and legacies to other parties, among them
being the petitioners Asilo de Molo, the Roman Catholic Church of Molo,
and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other
devisees and legatees named in the will, filed in Special Proceeding No.
1736 a motion for reconsideration and annulment of the proceedings
therein and for the allowance of the will When the trial court denied their
motion, the petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court . 3 As we stated earlier, we
dismissed that petition and advised that a separate proceeding for the
probate of the alleged will would be the appropriate vehicle to thresh out
the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter
on whether or not the document or papers allegedly burned by the
househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions

52
of the testatrix, was indeed the will, contradicted itself and found that the
will had been revoked. The respondent court stated that the presence
of animus revocandi in the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding on the facts that
the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will
left in the latter's possession, and, her seeking the services of Atty. Palma
in order to have a new will drawn up. For reasons shortly to be explained,
we do not view such facts, even considered collectively, as sufficient bases
for the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the
due execution of the will. The heart of the case lies on the issue as to
whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be revoked except in the following
cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself, or
by some other person in his presence, and by his express
direction. If burned, torn cancelled, or obliterated by some
other person, without the express direction of the testator,
the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation,
or obliteration are established according to the Rules of
Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the testator. It
is not imperative that the physical destruction be done by the testator

himself. It may be performed by another person but under the express

direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not
suffice. "Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to revoke
must be accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator or by another
person in his presence and under his express direction. There is paucity of
evidence to show compliance with these requirements. For one, the
document or papers burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less the will of Adriana
Maloto. For another, the burning was not proven to have been done under
the express direction of Adriana. And then, the burning was not in
her presence. Both witnesses, Guadalupe and Eladio, were one in stating
that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers proffered as a
will were burned.
The respondent appellate court in assessing the evidence presented by the
private respondents as oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of the will's
revocation appear "inconclusive." We share the same view. Nowhere in the
records before us does it appear that the two witnesses, Guadalupe Vda.
de Corral and Eladio Itchon, both illiterates, were unequivocably positive
that the document burned was indeed Adriana's will. Guadalupe, we think,
believed that the papers she destroyed was the will only because,
according to her, Adriana told her so. Eladio, on the other hand, obtained
his information that the burned document was the will because Guadalupe
told him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public
interest that a purported win is not denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken
to its very foundations ...." 4
The private respondents in their bid for the dismissal of the present action
for probate instituted by the petitioners argue that the same is already
barred by res adjudicata. They claim that this bar was brought about by
the petitioners' failure to appeal timely from the order dated November 16,

53
1968 of the trial court in the intestate proceeding (Special Proceeding No.
1736) denying their (petitioners') motion to reopen the case, and their
prayer to annul the previous proceedings therein and to allow the last will
and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present
controversy. For a judgment to be a bar to a subsequent case, the following
requisites must concur: (1) the presence of a final former judgment; (2) the
former judgment was rendered by a court having jurisdiction over the
subject matter and the parties; (3) the former judgment is a judgment on
the merits; and (4) there is, between the first and the second action,
Identity of parties, of subject matter, and of cause of action. 5 We do not
find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar
as the probate of Adriana Maloto's will is concerned. The decision of the
trial court in Special Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that judgment could
not in any manner be construed to be final with respect to the probate of
the subsequently discovered will of the decedent. Neither is it a judgment
on the merits of the action for probate. This is understandably so because
the trial court, in the intestate proceeding, was without jurisdiction to rule
on the probate of the contested will . 6 After all, an action for probate, as it
implies, is founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not be
properly done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will. Thus, there is
likewise no Identity between the cause of action in intestate proceeding
and that in an action for probate. Be that as it may, it would be
remembered that it was precisely because of our ruling in G.R. No. L-30479
that the petitioners instituted this separate action for the probate of the
late Adriana Maloto's will. Hence, on these grounds alone, the position of
the private respondents on this score can not be sustained.

One last note. The private respondents point out that revocation could be
inferred from the fact that "(a) major and substantial bulk of the properties
mentioned in the will had been disposed of: while an insignificant portion of
the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the
execution of the will on January 3,1940." 7 Suffice it to state here that as
these additional matters raised by the private respondents are extraneous
to this special proceeding, they could only be appropriately taken up after
the will has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE
the Decision dated June 7, 1985 and the Resolution dated October 22,
1986, of the respondent Court of Appeals, and a new one ENTERED for the
allowance of Adriana Maloto's last will and testament. Costs against the
private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Facts:
1. Petitioners and respondents are the neices/nephews or Adriana Maloto
who died in 1963. The four heirs believed that the deceased did not leave
a will, hesnce they filed an intestate proceeding. However, the parties
executed an extrajudicial settlement of the estate dividing it into four equal
parts.
2. In 1967, Atty. Sulpicio Palma, ex-associate of the deceased's counsel
allegedly discovered her last will which was purportedly dated 1940, inside
a cabinet. Hence the annulment of the proceedings and a probate petition
was filed by the devisees and legatees. The said will was allegedly burned
by the househelp under the instruction of the deceased
3. The lower court denied the probate on the ground that the animus
revocandi in the burning of the will was sufficiently proven.
Issue: Whether or not there was valid revocation of the will
RULING: No, there was no revocation. For a valid revocation to
occur,the 'corpus' and 'animus' must concur, one without the other will not
produce a valid revocation. The physical act of destruction of a will must
come with an intention to revoke (animus revocandi). In this case, there's
paucity of evidence to comply with the said requirement. The paper burned
was not established to be the will and the burning though done under her
express direction was not done in her presence.

54
Under Art. 830, the physical act of destruction, in this case the burning of
the will, does not constitute an effective revocation, unless it is coupled
with animus revocandi on the part of the testator. Since animus is a state
of mind, it has to be accompanied by an overt physical act of burning,
tearing, obliterating or cancelling done by the testator himself or by
another under his express direction and presence.

not proper to make a finding in an intestate proceeding that the discovered

will has been revoked. In fact, the probate court in S.P. No. 1736 stated in
its order that Movants should have filed a separate actionfor the probate
of the will. Even this Court, in dismissing the petition for certiorari, said
that the more appropriate remedy is a separate proceeding for the probate
of the alleged will.
Thus, the order of the probate court in S.P. No. 1736 is not a bar to the
present petition for the probate of the alleged will of Adriana Maloto.

ldina Maloto Casiano, Constancio Maloto, et al. vs. Panfilo Maloto

and Felino Maloto
September 30, 1977 | Fernandez

Doctrine: It is not proper to make a finding in an intestate proceeding

regarding the validity of an alleged will.

Facts:
Adriana Maloto died on October 1963 in Iloilo City, her place of residence.
On November 1963, Aldina Maloto Casiano, Constancio Maloto, Panfilo
Maloto, and Felino Maloto, niece and nephews respectively, of Adriana
Maloto commenced an intestate proceeding in the CFI of Iloilo that was
docketed as Spec. Pro. No. 1736. They executed an intestate proceeding
and divided the estate in the proportion of one-fourth (1/4) share for each.
The CFI judge approved the partition.

158 SCRA 451 TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA
MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR,
ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners, vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
Adriana Maloto - Testatrix

Subsequently, on April 1, 1967, a document purporting to be the last will

and testament of Adriana Maloto was delivered to the CFI of Iloilo. Aldina et
al. were all named as heirs but Aldina and Constancio appeared to have
bigger shares in the will than what they received in the extrajudicial
partition. There were also dispositions in favor of Asilo de Molo, the Roman
Catholic Church of Molo, and Purificacion Miraflor.
Aldino and Constancio, along with the other devisees and legatees, filed a
motion in S.P. No. 1736 for, among others, the allowance of the will of
Adriana Maloto. The CFI judge denied the motion on the ground that the
said motion had been filed out of time. The petitioners (Aldino et al.) filed a
petition for certiorari and mandamus with the SC but it was denied on the
ground of improper remedy.
The petitioners then commenced S.P. No. 2176 in the CFI of Iloilo for the
probate of the alleged last will and testament. The probate court dismissed
the petition on the basis of the finding of said court in S.P. No. 1736 that
the alleged will sought to be probated had been destroyed and revoked by
the testatrix.
Issue: Whether the dismissal of S.P. No. 2176 by the CFI of Iloilo was
proper?
Held: No. The probate court had no jurisdiction to entertain the petition for
the probate of the alleged will of Adriana Maloto in S.P. No. 1736. Indeed,
the motion to reopen the proceedings was filed out of time. Moreover, it is

Heirs (Niece and Nephews): Aldina Maloto Casiano Constancio Maloto

Panfilo Maloto Felino Maloto Devisees/Legatees: Asilo De Molo

The Roman Catholic Church Purificacion Miraflor Witnesses: Guadalupe

Maloto Vda. De Coral househelp of Adriana Eladio Itchon - driver of
Adriana Facts: Adriana died on October 20, 1963 leaving her niece and
nephews as heirs. Believing that she died intestate, the heirs commenced
an intestate proceeding for the settlement of their aunts estate. While the
case was still in progress, the heirs agreed to an extrajudicial settlement to
divide the estate into four equal parts and be distributed to them equally.
The agreement was presented to the court. Three years later, Atty. Palma,
an associate of Adrianas lawyer, discovered an original copy of what
purports to be the Last Will and Testament of Adriana. Atty. Palma
submitted it to the Clerk of Court where the case was pending. According
to the will, while Panfilo and Felino were still named heirs, their share in the
estate is much less compared to Aldina and Constancio. Devisees and
legatees were also named (listed above). Petitioners filed with the trial
court a motion for reconsideration to dismiss the pending case and allow
the probate of Adrianas will. Both the trial court and the CA denied the
motion. The CA held that there was animus revocandi to revoke the will by
the order of Adriana to Guadalupe to burn a copy of the will. Issue: WON

55
there was a valid revocation of the will. Held: The SC reversed the ruling of
the CA. The provisions of the new Civil Code pertinent to the issue can be
found in Article 830. Art. 830. No will shall be revoked except in the
following cases: (1) By implication of law; or (2) By some will, codicil, or
other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention
of revoking it, by the testator himself, or by some other person in his
presence, and by his express direction. If burned, torn cancelled, or
obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. Animus revocandi is just one of the
necessary elements for the proper revocation of a will. The physical act of
burning does not per se constitute an effective revocation. It was proven
that Guadalupe and Eladio were illiterates and could not have known
whether the document that Guadalupe burned as witnessed by Eladio was
a will, much less the will of Adriana. The burning was not proven to have
been done under the express direction of Adriana. Also, according to the
witnesses, Adriana was not present during the burning of the documents.

56
EN BANC
G.R. No. L-26317

January 29, 1927

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and
testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in
the municipality of Agoo of the Province of La Union. It appears from the
record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament (Exhibit A). In the month of
January, 1922, the said Francisco Gago presented a petition in the Court of
First Instance of the Province of La Union for the probation of that will. The
probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144,
Province of La Union). After hearing all of the parties the petition for the
probation of said will was denied by the Honorable C. M. Villareal on the 2d
day of November, 1923, upon the ground that the deceased had on the
16th day of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its
purpose was to secure the probation of the said will of the 16th day of
April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their
oppositions, alleging (a) that the said will is a copy of the second will and
testament executed by the said Miguel Mamuyac; (b) that the same had
been cancelled and revoked during the lifetime of Miguel Mamuyac and (c)
that the said will was not the last will and testament of the deceased
Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge,
after hearing the respective parties, denied the probation of said will of
April 16, 1919, upon the ground that the same had been cancelled and
revoked in the year 1920. Judge Teodoro, after examining the evidence
adduced, found that the following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in

the possession of the deceased testator Miguel Mamuyac, who
revoked it before his death as per testimony of witness Jose Fenoy,
who typed the will of the testator on April 16, 1919, and Carlos
Bejar, who saw on December 30, 1920, the original Exhibit A (will
of 1919) actually cancelled by the testator Miguel Mamuyac, who
assured Carlos Bejar that inasmuch as he had sold him a house
and the land where the house was built, he had to cancel it (the
will of 1919), executing thereby a new testament. Narcisa Gago in
a way corroborates the testimony of Jose Fenoy, admitting that the
will executed by the deceased (Miguel Mamuyac) in 1919 was
found in the possession of father Miguel Mamuyac. The opponents
have successfully established the fact that father Miguel Mamuyac
had executed in 1920 another will. The same Narcisa Gago, the
sister of the deceased, who was living in the house with him, when
cross-examined by attorney for the opponents, testified that the
original Exhibit A could not be found. For the foregoing
consideration and for the reason that the original of Exhibit A has
been cancelled by the deceased father Miguel Mamuyac, the court
disallows the probate of Exhibit A for the applicant." From that
order the petitioner appealed.
The appellant contends that the lower court committed an error in not
finding from the evidence that the will in question had been executed with
all the formalities required by the law; that the same had been revoked
and cancelled in 1920 before his death; that the said will was a mere
carbon copy and that the oppositors were not estopped from alleging that
fact.
With reference to the said cancellation, it may be stated that there is
positive proof, not denied, which was accepted by the lower court, that will
in question had been cancelled in 1920. The law does not require any
evidence of the revocation or cancellation of a will to be preserved. It
therefore becomes difficult at times to prove the revocation or cancellation
of wills. The fact that such cancellation or revocation has taken place must
either remain unproved of be inferred from evidence showing that after
due search the original will cannot be found. Where a will which cannot be
found is shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent evidence, that
the same was cancelled or destroyed. The same presumption arises where
it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been

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destroyed by any other person without the knowledge or authority of the
testator. The force of the presumption of cancellation or revocation by the
testator, while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by proof that the
will was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after the
death of the testator Miguel Mamuyac and in view of the positive proof that
the same had been cancelled, we are forced to the conclusion that the
conclusions of the lower court are in accordance with the weight of the
evidence. In a proceeding to probate a will the burden of proofs is upon the
proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great majority of
instances in which wills are destroyed for the purpose of revoking them
there is no witness to the act of cancellation or destruction and all
evidence of its cancellation perishes with the testator. Copies of wills
should be admitted by the courts with great caution. When it is proven,
however, by proper testimony that a will was executed in duplicate and
each copy was executed with all the formalities and requirements of the
law, then the duplicate may be admitted in evidence when it is made to
appear that the original has been lost and was not cancelled or destroyed
by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully persuaded
that the will presented for probate had been cancelled by the testator in

1920. Therefore the judgment appealed from is hereby affirmed. And

without any finding as to costs, it is so ordered.
Facts:
1. Previously, Francisco Gago filed a petition for the probate of a will of
Miguel Mamuyac executed on July 27, 1918. The oppositors alleged that
the said will was already annulled and revoked. It appeared that on April
16, 1919, the deceased executed another will. The lower court denied the
probate of the first will on the ground of the existence of the second will.
2. Another petition was filed to seek the probate of the second will. The
oppositors alleged that the second will presented was merely a copy.
According to the witnesses, the said will was allegedly revoked as per the
testimony of Jose Tenoy, one of the witnesses who typed the document.
Another witness testified that on December 1920 the original will was
actually cancelled by the testator.
3. The lower court denied the probate and held that the same has been
annulled and revoked.
Issue: Whether or not there was a valid revocation of the will
RULING: Yes. The will was already cancelled in 1920. This was inferred
when after due search, the original will cannot be found. When the will
which cannot be found in shown to be in the possession of the testator
when last seen, the presumption is that in the absence of other competent
evidence, the same was deemed cancelled or destroyed. The same
presumption applies when it is shown that the testator has ready access to
the will and it can no longer be found after his death.