G.R. No.
82027 March 29, 1990 On the other hand, the CA held that the survivorship agreement
ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF
APPEALS and ROWENA FAUSTINO-CORONA, respondents.
This case is a chapter in an earlier suit decided by this Court
involving the probate of the two wills of the late Dolores Luchangco
Vitug, who died in New York, U. S.A. naming private respondent
Rowena Faustino-Corona executrix. In said decision, the court
upheld the appointment of Nenita Alonte as co-special
administrator of Mrs. Vitug’s estate with her (Mrs. Vitug’s) widower,
petitioner Romarico G. Vitug, pending probate.
Romarico G. Vitug filed a motion asking for authority from the
probate court to sell certain shares of stock and real properties
belonging to the estate to cover allegedly his advances to the
estate, plus interests, which he claimed were personal funds. As
found by the CA the alleged advances were spent for the payment
of estate tax, deficiency estate tax, and “increment thereto.”
Rowena Corona opposed the motion to sell on the ground that the
same funds withdrawn were conjugal partnership properties and
part of the estate, and hence, there was allegedly no ground for
reimbursement. She also sought his ouster for failure to include the
sums in question for inventory and for “concealment of funds
belonging to the estate.”
Vitug insists that the said funds are his exclusive property having
acquired the same through a survivorship agreement executed with
his late wife and the bank.
The trial courts upheld the validity of such agreement.
constitutes a conveyance mortis causa which “did not comply with
the formalities of a valid will as prescribed by Article 805 of the Civil
Code,” and secondly, assuming that it is a mere donation inter vivos,
it is a prohibited donation under the provisions of Article 133 of the
Civil Code.
ISSUE: W/N the survivorship agreement between the spouses Vitug
constitutes a donation?
HELD: NO. The conveyance in question is not, first of all, one of
mortis causa, which should be embodied in a will. A will has been
defined as “a personal, solemn, revocable and free act by which a
capacitated person disposes of his property and rights and declares
or complies with duties to take effect after his death.” In other
words, the bequest or device must pertain to the testator. In this
case, the monies subject of savings account No. 35342-038 were in
the nature of conjugal funds In the case relied on, Rivera v. People’s
Bank and Trust Co., we rejected claims that a survivorship
agreement purports to deliver one party’s separate properties in
favor of the other, but simply, their joint holdings.
There is no showing that the funds exclusively belonged to one
party, and hence it must be presumed to be conjugal, having been
acquired during the existence of the marital relations.
Neither is the survivorship agreement a donation inter vivos, for
obvious reasons, because it was to take effect after the death of
one party. Secondly, it is not a donation between the spouses
because it involved no conveyance of a spouse’s own properties to
the other.
It is also our opinion that the agreement involves no modification
petition of the conjugal partnership, as held by the Court of
Appeals, by “mere stipulation” and that it is no “cloak” to
circumvent the law on conjugal property relations. Certainly, the
spouses are not prohibited by law to invest conjugal property, say,
by way of a joint and several bank account, more commonly
denominated in banking parlance as an “and/or” account. In the
case at bar, when the spouses Vitug opened savings account No.
35342-038, they merely put what rightfully belonged to them in a
money-making venture. They did not dispose of it in favor of the
other, which would have arguably been sanctionable as a prohibited
donation.
The conclusion is accordingly unavoidable that Mrs. Vitug having
predeceased her husband, the latter has acquired upon her death a
vested right over the amounts under savings account No. 35342-038
of the Bank of America. Insofar as the respondent court ordered
their inclusion in the inventory of assets left by Mrs. Vitug, we hold
that the court was in error. Being the separate property of
petitioner, it forms no more part of the estate of the deceased.
SUROZA CASE
In 1973, Marcelina Suroza supposedly executed a notarial will
bequeathing her house and lot to a certain Marilyn Suroza. In 1974,
Marcelina died. Marina Paje was named as the executrix in the said
will and she petitioned before CFI Rizal that the will be admitted to
probate. The presiding judge, Honrado admitted the will to probate
and assigned Paje as the administratrix. Honrado also issued an
ejectment order against the occupants of the house and lot subject
of the will.
Nenita Suroza, daughter in law of Marcelina (her husband, son of
Marcelina was confined in the Veteran’s Hospital), learned of the
probate proceeding when she received the ejectment order (as she
was residing in said house and lot).
Nenita opposed the probate proceeding. She alleged that the said
notarial will is void because (a) the instituted heir therein Marilyn
Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b)
the only son of Marcelina, Agapito Suroza, is still alive and is the
compulsory heir, (c) the notarial will is written in English a language
not known to Marcelina because the latter was illiterate so much so
that she merely thumbmarked the will, (d) the notary public who
notarized will admitted that Marcelina never appeared before him
and that he notarized the said will merely to accommodate the
request of a lawyer friend but with the understanding that
Marcelina should later appear before him but that never happened.
Honrado still continued with the probate despite the opposition
until testamentary proceeding closed and the property transferred
to Marilyn Sy.
Nenita then filed this administrative case against Honrado on the
ground of misconduct.
ISSUE: Whether or not Honrado is guilty of misconduct for admitting
into probate a void will.
HELD: Yes. Despite the valid claim raised by Nenita, he still
continued with the testamentary proceeding, this showed his
wrongful intent. He may even be criminally liable for knowingly
rendering an unjust judgment or interlocutory order or rendering a
manifestly unjust judgment or interlocutory order by reason of
inexcusable negligence or ignorance.
The will is written in English and was thumb marked by an obviously
illiterate Marcelina. This could have readily been perceived by
Honrado that that the will is void. In the opening paragraph of the
will, it was stated that English was a language “understood and
known” to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix “and translated into
Filipino language.” That could only mean that the will was written in
a language not known to the illiterate testatrix and, therefore, it is
void because of the mandatory provision of Article 804 of the Civil
Code that every will must be executed in a language or dialect
known to the testator. Had Honrado been careful and observant, he
could have noted not only the anomaly as to the language of the
will but also that there was something wrong in instituting to
Marilyn Sy as sole heiress and giving nothing at all to Agapito who
was still alive. Honrado was fined by the Supreme Court.
G.R. No. 42258 September 5, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD,
petitioner-appellant, vs. AQUILINA TOLENTINO, oppositor-
appellant.
There are two motions filed by the oppositor Aquilina Tolentino,
pending resolution: That of January 29, 1935, praying for the
reconsideration of the decision of the court and that of the same
date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the
following facts relied upon in her pleading:
1. That the testatrix did not personally place her thumbmark on her
alleged will;
2. That the testatrix did not request Attorney Almario to write her
name and surname on the spaces of the will where she should place
her thumbmarks;
3. That the will in question was not signed by the testatrix on the
date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix
was no longer in a physical or mental condition to make it.
We have again reviewed the evidence to determine once more
whether the errors assigned by the oppositor in her brief have not
been duly considered, whether some fact or detail which might
have led us to another conclusion has been overlooked, or whether
the conclusions arrived at in our decision are not supported by the
evidence. We have found that the testatrix Leoncia Tolentino,
notwithstanding her advanced age of 92 years, was in good health
until September 1, 1933. She had a slight cold on said date for which
reason she was visited by her physician, Dr. Florencio Manuel. Said
physician again visited her three or four days later and found her
still suffering from said illness but there was no indication that she
had but a few days to live. She ate comparatively well and
conserved her mind and memory at least long after noon of
September 7, 1933. She took her last nourishment of milk in the
morning of the following day, September 8, 1933, and death did not
come to her until 11 o'clock sharp that morning.
The will in question was prepared by Attorney Marciano Almario
between 11 and 12 o'clock noon on September 7, 1933, in the
house of the testatrix Leoncia Tolentino, after she had expressed to
said attorney her desire to make a will and bequeath her property
to the petitioner Victorio Payad in compensation according to her,
for his diligent and faithful services rendered to her. Victorio Payad
had grown up under the care of the testatrix who had been in her
home from childhood. The will was written by Attorney Almario in
his own handwriting, and was written in Spanish because he had
been instructed to do so by the testatrix. It was later read to her in
the presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and
other persons who were then present. The testatrix approved all
the contents of the document and requested Attorney Almario to
write her name where she had to sign by means of her thumbmark
in view of the fact that her fingers no longer had the necessary
strength to hold a pen. She did after having taken the pen and tried
to sign without anybody's help. Attorney Almario proceeded to
write the name of the testatrix on the three pages composing the
will and the testatrix placed her thumbmark on said writing with the
help of said attorney, said help consisting in guiding her thumb in
order to place the mark between her name and surname, after she
herself had moistened the tip of her thumb with which she made
such mark, on the ink pad which was brought to her for said
purpose. Said attorney later signed the three pages of the will in the
presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer
Cruz and Perfecto L. Ona, who, in turn, forthwith signed it
successively and exactly under the same circumstances above
stated.
In support of her claim that the testatrix did not place her
thumbmark on the will on September 7, 1983, and that she never
made said will because she was no longer physically or mentally in a
condition do so, the oppositor cites the testimony of Julian
Rodriguez, Gliceria Quisonia, Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not
seen Attorney Almario in the morning of September 7, 1933, in the
house of the deceased where they were then living, and that the
first time that they saw him there was at about 12 o'clock noon on
September 8th of said year, when Leoncia Tolentino was already
dead, Gliceria Quisonia stating that on that occasion Almario arrived
there accompanied only by woman named Pacing. They did not
state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer
Cruz and Perfecto L. Ona, the instrumental witnesses of the will.
Said two witnesses, however, could not but admit that their room
was situated at the other end of the rooms occupied by the
deceased herself and by the petitioner Victorio Payad, and that
their said room and that of Victorio Payad are separated by the
stairs of the house; that Gliceria Quisonia saw the deceased only
once on the 7th and twice on the 8th, and that Julian Rodriguez
stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on
the 7th of said month. Gliceria Quisonia further stated that in the
morning of September 7th, she prepared the noonday meal in the
kitchen which was situated under the house. Under such
circumstances it is not strange that the two did not see the testatrix
when, according to the evidence for the petitioner, she made her
will and signed it by means of her thumbmark. In order to be able to
see her and also Almario and the instrumental witnesses of the will,
on that occasion, it was necessary for them to enter the room
where the deceased was, or at least the adjoining room where the
will was prepared by Attorney Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th
the testatrix was already so weak that she could not move and that
she could hardly be understood because she could no longer
enunciate, making it understood thereby, that in such condition it
was absolutely impossible for her to make any will. The attorney for
the oppositor insists likewise and more so because, according to
him and his witness Paz de Leon, two days before the death of the
testatrix, or on September 6, 1933, she could not even open her
eyes or make herself understood.
The testimony of said witnesses is not sufficient to overthrow, or
discredit the testimony of the petitioner-appellant or that of
Attorney Almario and the three instrumental witnesses of the will
because, to corroborate them, we have of record the testimony of
the physician of the deceased and the accountant Ventura Loreto
who are two disinterested witnesses, inasmuch as the outcome of
these proceedings does not affect them in the least. The two
testified that two, three or four days before the death of the
testatrix, they visited her in her home, the former professionally,
and the latter as an acquaintance, and they then found her not so ill
as to be unable to move or hold a conversation. They stated that
she spoke to them intelligently; that she answered all the questions
which they had put to her, and that she could still move in spite of
her weakness.
In view of the foregoing facts and considerations, we deem it clear
that the oppositor's motion for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following
facts: (1) That upon her death, the deceased left a letter signed by
herself, placed in a stamped envelope and addressed to Teodoro R.
Yangco, with instructions not to open it until after her death; (2)
that there are witnesses competent to testify on the letter in
question, in addition to other evidence discovered later, which
could not be presented at the trial; (3) that in the letter left by the
deceased, she transfers all her property to Teodoro R. Yangco
stating therein that, upon her death, all the property in question
should become Yangco's. From this alleged fact, the oppositor infers
that the deceased never had and could not have had the intention
to make the will in question, and (4) that said oppositor knew of the
existence of said letter only after her former attorney, Alejandro
Panis, had been informed thereof in May, 1935, by one of Teodoro
R. Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the
oppositor filed another supplementary motion alleging that she had
discovered some additional new evidence consisting in the affidavit
of Attorney Gabino Fernando Viola wherein the latter affirms that
Victorio Payad had called him on September 5, 1933, to prepare the
will of the deceased but he did not do so because after seeing her
he had been convinced that she could not make a will because she
had lost her speech and her eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola,
substantially affirming the facts alleged by the oppositor, are
attached to both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola
are not and cannot be newly discovered evidence, and are not
admissible to warrant the holding of a new trial, because the
oppositor had been informed of the facts affirmed by Attorney Jose
Cortes in his affidavit long before this case was decided by this
court. It is stated in said affidavit that in May, 1935, Attorney Jose
Cortes revealed to the attorney for oppositor the fact that the
deceased had left a letter whereby she transferred all her property
to Teodoro R. Yangco, and the judgment was rendered only on
January 15, 1936, or eight months later
The oppositor contends that she had no reason to inform the court
of said newly discovered evidence inasmuch as the judgment of the
lower court was favorable to her. She, however, overlooks the fact
that she also appealed from the decision of the lower court and it
was her duty, under the circumstances, to inform this court of the
discovery of said allegedly newly discovered evidence and to take
advantage of the effects thereof because, by so doing, she could
better support her claim that the testatrix made no will, much less
the will in question. Said evidence, is not new and is not of the
nature of that which gives rise to a new trial because, under the
law, in order that evidence may be considered newly discovered
evidence and may serve as a ground for a new trial, it is necessary
(a) that it could not have been discovered in time, even by the
exercise of due diligence; (b) that it be material, and (c) that it also
be of such a character as probably to change the result if admitted.
The affidavit of Attorney Cortes is neither material nor important in
the sense that, even considering it newly discovered evidence, it will
be sufficient to support the decision of the lower court and modify
that of this court. It is simply hearsay or, at most, corroborative
evidence. The letter of the deceased Leoncia Tolentino to Teodoro
R. Yangco would, in the eyes of the law, be considered important or
material evidence but this court has not the letter in question
before it, and no attempt was ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he
may give pursuant thereto is not more competent than that of
Attorney Jose Cortes because, granting that when he was called by
Victorio Payad to help the deceased Leoncia Tolentino to make her
will and he went to her house on September 5, 1933, the deceased
was almost unconscious, was unintelligible and could not speak, it
does not necessarily mean that on the day she made her will,
September 7, 1933, she had not recovered consciousness and all
her mental faculties to capacitate her to dispose of all her property.
What Attorney Gabino Fernando Viola may testify pursuant to his
affidavit in question is not and can not be newly discovered
evidence of the character provided for by law, not only because it
does not exclude the possibility that testatrix had somewhat
improved in health, which possibility became a reality at the time
she made her will because she was then in the full enjoyment of her
mental faculties, according to the testimony of Pedro L. Cruz, Jose
Ferrer Cruz, Perfecto L. Ona, Victorio Payad and Marciano Almario,
but also because during the hearing of these proceedings in the
Court of First Instance, Attorney Viola was present, and the
oppositor then could have very well called him to the witness stand,
inasmuch as her attorney already knew what Attorney Viola was to
testify about, yet she did not call him. The last fact is shown by the
following excerpt from pages 148 to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your
Honor, I should like to present as the last witness Attorney
Fernando Viola who was called by the petitioner Victoria Payad to
prepare the will of the deceased in his favor on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney
Fernando Viola? — Mr. PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom
you wish to call to the witness stand? — Mr. PANIS: Your Honor, he
is busy in the branch, presided over by Judge Sison.
COURT: And when can he come? Mr. — PANIS. I am now going to
find out, Your Honor. If the other party, Your Honor, is willing to
admit what said witness is going to testify in the sense that said
Attorney Fernando Viola went to the house of the deceased on
September 5, 1933, for the purpose of talking to the deceased to
draft the will upon petition of Mr. Victorio Payad; if the other party
admits that, then I am going waive the presentation of the witness
Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other
party would not admit that proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the
witness, Mr. Viola, without prejudice to the other party's calling the
witness it may wish to call.
COURT: The court reserves to the oppositor its right to call Attorney
Viola to the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to
testify as a witness in her favor, it might have been because she
considered his testimony unimportant and unnecessary, and at the
present stage of the proceedings, it is already too late to claim that
what said attorney may now testify is a newly discovered evidence.
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased.
ROSARIO GARCIA, petitioner, vs. JULIANA LACUESTA, ET AL.,
respondents.
This is an appeal from a decision of the Court of Appeals disallowing
the will of Antero Mercado dated January 3, 1943. The will is
written in the Ilocano dialect and contains the following attestation
clause:
We, the undersigned, by these presents to declare that the
foregoing testament of Antero Mercado was signed by himself and
also by us below his name and of this attestation clause and that of
the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano
dialect which is spoken and understood by the testator, and it bears
the corresponding number in letter which compose of three pages
and all them were signed in the presence of the testator and
witnesses, and the witnesses in the presence of the testator and all
and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of
January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who which he signed his name. After mature reflection, we are not
wrote the name of Antero Mercado, followed below by "A reugo del prepared to liken the mere sign of the cross to a thumbmark, and
testator" and the name of Florentino Javier. Antero Mercado is the reason is obvious. The cross cannot and does not have the
alleged to have written a cross immediately after his name. The trustworthiness of a thumbmark.
Court of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1) What has been said makes it unnecessary for us to determine there
to certify that the will was signed on all the left margins of the three is a sufficient recital in the attestation clause as to the signing of the
will by the testator in the presence of the witnesses, and by the
pages and at the end of the will by Atty. Florentino Javier at the
express request of the testator in the presence of the testator and latter in the presence of the testator and of each other.
each and every one of the witnesses; (2) to certify that after the G.R. No. L-6285 February 15, 1912
signing of the name of the testator by Atty. Javier at the former's
request said testator has written a cross at the end of his name and PEDRO BARUT, petitioner-appellant, vs. FAUSTINO CABACUNGAN,
on the left margin of the three pages of which the will consists and ET AL., opponents-appellees.
at the end thereof; (3) to certify that the three witnesses signed the
This case is closely connected with the case of Faustino Cabacungan
will in all the pages thereon in the presence of the testator and of
vs. Pedro Barut and another, No. 6284,1 just decided by this court,
each other.
wherein there was an application for the probate of an alleged last
In our opinion, the attestation clause is fatally defective for failing to will and testament of the same person the probate of whose will is
state that Antero Mercado caused Atty. Florentino Javier to write involved in this suit.
the testator's name under his express direction, as required by
This appeal arises out of an application on the part of Pedro Barut
section 618 of the Code of Civil Procedure. The herein petitioner
to probate the last will and testament of Maria Salomon, deceased.
(who is appealing by way of certiorari from the decision of the Court
It is alleged in the petition of the probate that Maria Salomon died
of Appeals) argues, however, that there is no need for such recital
on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos
because the cross written by the testator after his name is a
Sur, leaving a last will and testament bearing date March 2, 1907.
sufficient signature and the signature of Atty. Florentino Javier is a
Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M.
surplusage. Petitioner's theory is that the cross is as much a
Jimenez are alleged to have been witnesses to the execution
signature as a thumbmark, the latter having been held sufficient by
thereof. By the terms of said will Pedro Barut received the larger
this Court in numerous cases.
part of decedent's property.
It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by
The original will appears on page 3 of the record and is in the
Ilocano dialect. Its translation into Spanish appears at page 11. After
disposing of her property the testatrix revoked all former wills by
her made. She also stated in said will that being unable to read or
write, the same had been read to her by Ciriaco Concepcion and
Timotea Inoselda and that she had instructed Severo Agayan to sign
her name to it as testatrix.
The probate of the will was contested and opposed by a number of
the relatives of the deceased on various grounds, among them that
a later will had been executed by the deceased. The will referred to
as being a later will is the one involved in case No. 6284 already
referred to. Proceeding for the probate of this later will were
pending at the time. The evidence of the proponents and of the
opponents was taken by the court in both cases for the purpose of
considering them together.
In the case before us the learned probate court found that the will
was not entitled to probate upon the sole ground that the
handwriting of the person who it is alleged signed the name of the
testatrix to the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will than that of
the person whose handwriting it was alleged to be. We do not
believe that the mere dissimilarity in writing thus mentioned by the
court is sufficient to overcome the uncontradicted testimony of all
the witnesses to the will that the signature of the testatrix was
written by Severo Agayan at her request and in her presence and in
the presence of all the witnesses to the will. It is immaterial who
writes the name of the testatrix provided it is written at her request
and in her presence and in the presence of all the witnesses to the
execution of the will.
The court seems , by inference at least, to have had in mind that
under the law relating to the execution of a will it is necessary that
the person who signs the name of the testatrix must afterwards sign
his own name; and that, in view of the fact that, in the case at bar,
the name signed below that of the testatrix as the person who
signed her name, being, from its appearance, not the same
handwriting as that constituting the name of the testatrix, the will is
accordingly invalid, such fact indicating that the person who signed
the name of the testatrix failed to sign his own. We do not believe
that this contention can be sustained. Section 618 of the Code of
Civil Procedure reads as follows:
No will, except as provided in the preceding section, shall be valid to
pass any estate, real or personal, nor charge or effect the same,
unless it be in writing and signed by the testator, or by the testator's
name written by some other person in his presence, and by his
expenses direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of each. . . .
This is the important part of the section under the terms of which
the court holds that the person who signs the name of the testator
for him must also sign his own name The remainder of the section
reads:
The attestation shall state the fact that the testator signed the will,
or caused it to be signed by some other person, at his express
direction, in the presence of three witnesses, and that they attested
and subscribed it in his presence and in the presence of each other.
But the absence of such form of attestation shall not render the will
invalid if it is proven that the will was in fact signed and attested as
in this section provided.
From these provisions it is entirely clear that, with respect to the
validity of the will, it is unimportant whether the person who writes
the name of the testatrix signs his own or not. The important thing
is that it clearly appears that the name of the testatrix was signed at
her express direction in the presence of three witnesses and that
they attested and subscribed it in her presence and in the presence
of each other. That is all the statute requires. It may be wise as a
practical matter that the one who signs the testator's name signs
also his own; but that it is not essential to the validity of the will.
Whether one parson or another signed the name of the testatrix in
this case is absolutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows that the
requirement laid down by the trial court, if it did lay down, is
absolutely unnecessary under the law; and the reasons underlying
the provisions of the statute relating to the execution of wills do not
in any sense require such a provision. From the standpoint of
language it is an impossibility to draw from the words of the law the
inference that the persons who signs the name of the testator must
sign his own name also. The law requires only three witnesses to a
will, not four.
Nor is such requirement found in any other branch of the law. The
name of a person who is unable to write may be signed by another
by express direction to any instrument known to the law. There is
no necessity whatever, so far as the validity of the instrument is
concerned, for the person who writes the name of the principal in
the document to sign his own name also. As a matter of policy it
may be wise that he do so inasmuch as it would give such intimation
as would enable a person proving the document to demonstrate
more readily the execution by the principal. But as a matter of
essential validity of the document, it is unnecessary. The main thing
to be established in the execution of the will is the signature of the
testator. If that signature is proved, whether it be written by himself
or by another at his request, it is none the less valid, and the fact of
such signature can be proved as perfectly and as completely when
the person signing for the principal omits to sign his own name as it
can when he actually signs. To hold a will invalid for the lack of the
signature of the person signing the name of the principal is, in the
particular case, a complete abrogation of the law of wills, as it
rejects and destroys a will which the statute expressly declares is
valid.
There have been cited three cases which it is alleged are in
opposition to the doctrine which we have herein laid down. They
are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of
these cases is in point. The headnote in the case last above stated
gives an indication of what all of cases are and the question
involved in each one of them. It says:
The testatrix was not able to sign it for her. Instead of writing her
name he wrote his own upon the will. Held, That the will was not
duly executed.
All of the above cases are precisely of this character. Every one of
them was a case in which the person who signed the will for the
testator wrote his own name to the will instead of writing that of
the testator, so that the testator's name nowhere appeared
attached to the will as the one who executed it. The case of Ex parte
Arcenas contains the following paragraph:
Where a testator does not know, or is unable for any reason, to sign
the will himself, it shall be signed in the following manner: "John
Doe, by the testator, Richard Roe;" or in this form: "By the testator.
John Doe, Richard Roe." All this must be written by the witness
signing at the request of the testator.
The only question for decision in that case, as we have before
stated, was presented by the fact that the person who was
authorized to sign the name of the testator to the will actually failed
to sign such name but instead signed his own thereto. The decision
in that case related only to that question.
Aside from the presentation of an alleged subsequent will the
contestants in this case have set forth no reason whatever why the
will involved in the present litigation should not be probated. The
due and legal execution of the will by the testatrix is clearly
established by the proofs in this case. Upon the facts, therefore, the
will must be probated. As to the defense of a subsequent will, that
is resolved in case No. 6284 of which we have already spoken. We
there held that said later will not the will of the deceased.
The judgment of the probate court must be and is hereby reversed
and that court is directed to enter an order in the usual form
probating the will involved in this litigation and to proceed with
such probate in accordance with law.
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA RIMANDO,
defendant-appellant.
The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court
below, is whether one of the subscribing witnesses was present in
the small room where it was executed at the time when the testator
and the other subscribing witnesses attached their signatures; or
whether at that time he was outside, some eight or ten feet away,
in a large room connecting with the smaller room by a doorway,
across which was hung a curtain which made it impossible for one in
the outside room to see the testator and the other subscribing
witnesses in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this
subscribing witness was in the small room with the testator and the
other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of
the appeal and necessitates the affirmance of the decree admitting
the document to probate as the last will and testament of the
deceased.
The trial judge does not appear to have considered the
determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep.,
541) the alleged fact that one of the subscribing witnesses was in
the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been
proven, would not be sufficient in itself to invalidate the execution
of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room at
the time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room, it
would have been invalid as a will, the attaching of those signatures
under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this
witness to the testator and the other subscribing witnesses would
necessarily have been impeded by the curtain separating the inner
from the outer one "at the moment of inscription of each
signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign,
but whether they might have been seen each other sign, had they
chosen to do so, considering their mental and physical condition
and position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with
relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they
choose to do so. This, of course, does not mean that the testator
and the subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions. The
evidence in the case relied upon by the trial judge discloses that "at
the moment when the witness Javellana signed the document he
was actually and physically present and in such position with
relation to Jaboneta that he could see everything that took place by
merely casting his eyes in the proper direction and without any
physical obstruction to prevent his doing so." And the decision
merely laid down the doctrine that the question whether the
testator and the subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not depend upon
proof of the fact that their eyes were actually cast upon the paper
at the moment of its subscription by each of them, but that at that
moment existing conditions and their position with relation to each
other were such that by merely casting the eyes in the proper
direction they could have seen each other sign. To extend the
doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the
purpose for which this particular condition is prescribed in the code
as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of
Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee, vs. DOÑA MATEA LEDESMA,
oppositor-appellant.
By order of July 23, 1953, the Court of First Instance of Iloilo
admitted to probate the documents in the Visayan dialect, marked
Exhibits D and E, as the testament and codicil duly executed by the
deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30,
1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria
Montinola de Tabiana and Vicente Yap as witnesses. The
contestant, Da. Matea Ledesma, sister and nearest surviving relative
of said deceased, appealed from the decision, insisting that the said
exhibits were not executed in conformity with law. The appeal was
made directly to this Court because the value of the properties
involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the
testatrix lacked testamentary capacity and that the dispositions
were procured through undue influence. These grounds were
abandoned at the hearing in the court below, where the issue was
concentrated into three specific questions: (1) whether the
testament of 1950 was executed by the testatrix in the presence of
the instrumental witnesses; (2) whether the acknowledgment
clause was signed and the notarial seal affixed by the notary
without the presence of the testatrix and the witnesses; and (3) if
so, whether the codicil was thereby rendered invalid and
ineffective. These questions are the same ones presented to us for
resolution.
The contestant argues that the Court below erred in refusing
credence to her witnesses Maria Paderogao and Vidal Allado, cook
and driver, respectively, of the deceased Apolinaria Ledesma. Both
testified that on March 30, 1950, they saw and heard Vicente Yap
(one of the witnesses to the will) inform the deceased that he had
brought the "testamento" and urge her to go to attorney Tabiana's
office to sign it; that Da. Apolinaria manifested that she could not
go, because she was not feeling well; and that upon Yap's insistence
that the will had to be signed in the attorney's office and not
elsewhere, the deceased took the paper and signed it in the
presence of Yap alone, and returned it with the statement that no
one would question it because the property involved was
exclusively hers.
Our examination of the testimony on record discloses no grounds
for reversing the trial Court's rejection of the improbable story of
the witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon
Tabiana, and his wife Gloria Montinola, who asserted under oath
that the testament was executed by testatrix and witnesses in the
presence of each other, at the house of the decedent on General
Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,
and contrary to usage, that either Tabiana or Yap should have
insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all
three witnesses could have easily repaired thither for the purpose.
Moreover, the cross-examination has revealed fatal flaws in the
testimony of Contestant's witnesses. Both claim to have heard the
word "testamento" for the first time when Yap used it; and they
claimed ability to recall that word four years later, despite the fact
that the term meant nothing to either. It is well known that what is
to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao
was positive that Yap brought the will, and that the deceased alone
signed it, precisely on March 30, 1950; but she could remember no
other date, nor give satisfactory explanation why that particular day
stuck in her mind. Worse still, Allado claimed to have heard what
allegedly transpired between Yap and Da. Apolinaria from the
kitchen of the house, that was later proved to have been separated
from the deceased's quarters, and standing at a much lower level,
so that conversations in the main building could not be distinctly
heard from the kitchen. Later, on redirect examination, Allado
sought to cure his testimony by claiming that he was upstairs in a
room where the servants used to eat when he heard Yap converse
with his mistress; but this correction is unavailing, since it was
plainly induced by two highly leading questions from contestant's
counsel that had been previously ruled out by the trial Court.
Besides, the contradiction is hardly consonant with this witness' 18
years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the
instrumental witnesses urged upon us by the contestant-appellant,
concerning the presence or absence of Aurelio Montinola at the
signing of the testament or of the codicil, and the identity of the
person who inserted the date therein, are not material and are
largely imaginary, since the witness Mrs. Tabiana confessed inability
to remember all the details of the transaction. Neither are we
impressed by the argument that the use of some Spanish terms in
the codicil and testament (like legado, partes iguales, plena
propiedad) is proof that its contents were not understood by the
testatrix, it appearing in evidence that those terms are of common
use even in the vernacular, and that the deceased was a woman of
wide business interests.
The most important variation noted by the contestants concerns
that signing of the certificate of acknowledgment (in Spanish)
appended to the Codicil in Visayan, Exhibit E. Unlike the testament,
this codicil was executed after the enactment of the new Civil Code,
and, therefore, had to be acknowledged before a notary public (Art.
806). Now, the instrumental witnesses (who happen to be the same
ones who attested the will of 1950) asserted that after the codicil
had been signed by the testatrix and the witnesses at the San Pablo
Hospital, the same was signed and sealed by notary public Gimotea
on the same occasion. On the other hand, Gimotea affirmed that he
did not do so, but brought the codicil to his office, and signed and
sealed it there. The variance does not necessarily imply conscious
perversion of truth on the part of the witnesses, but appears rather
due to a well-established phenomenon, the tendency of the mind,
in recalling past events, to substitute the usual and habitual for
what differs slightly from it.
At any rate, as observed by the Court below, whether or not the
notary signed the certification of acknowledgment in the presence
of the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does
not require that the signing of the testator, witnesses and notary
should be accomplished in one single act. A comparison of Articles
805 and 806 of the new Civil Code reveals that while testator and
witnesses sign in the presence of each other, all that is thereafter
required is that "every will must be acknowledged before a notary
public by the testator and the witnesses" (Art. 806); i.e., that the
latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the
testamentary disposition. This was done in the case before us. The
subsequent signing and sealing by the notary of his certification that
the testament was duly acknowledged by the participants therein is
no part of the acknowledgment itself nor of the testamentary act.
Hence their separate execution out of the presence of the testatrix
and her witnesses can not be said to violate the rule that
testaments should be completed without interruption (Andalis vs.
Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno
codem die ac tempore in eadem loco", and no reversible error was
committed by the Court in so holding. It is noteworthy that Article
806 of the new Civil Code does not contain words requiring that the
testator and the witnesses should acknowledge the testament on
the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs
against appellant.
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.
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 Pañares 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 an
American Jurisprudence which reads as follows:
It is said that there are, practical reasons for upholding a will as
against the purely technical reason that one of the witnesses
required by law signed as certifying to an acknowledgment of the
testator's signature under oath rather than as attesting the
execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We
are inclined to sustain that of the appellant that the last will and
testament in question was not executed in accordance with law.
The notary public before whom the will was acknowledged cannot
be considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space
or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls New Standard Dictionary
of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the
notary public himself, he would have to avow assent, or admit his
having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will
appear before the other to acknowledge his participation in the
making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to
guard against any illegal or immoral arrangement Balinon v. De
Leon, 50 0. G. 583.) That function would defeated if the notary
public were one of the attesting instrumental witnesses. For them
he would be interested sustaining the validity of the will as it
directly involves him and the validity of his own act. It would place
him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code
Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary
public may, in addition, act as a witness to the executive of the
document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others
holding that his signing merely as notary in a will nonetheless makes
him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re
Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911,
Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W.
Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So.
1030). But these authorities do not serve the purpose of the law in
this jurisdiction or are not decisive of the issue herein because the
notaries public and witnesses referred to aforecited cases merely
acted as instrumental, subscribing attesting witnesses, and not as
acknowledging witnesses. He the notary public acted not only as
attesting witness but also acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public shall not
be required to retain a copy of the will or file another with the office
of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the effect of
having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least
three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses
must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses appeared
before the notary public for or that purpose. In the circumstances,
the law would not be duly in observed.
GARCIA V. VASQUEZ (READ FURTHER)
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.
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.
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.
Before us is an appeal from the Decision dated 11 April 19861 of the
First Civil Cases Division of the then Intermediate Appellate Court,
now Court of Appeals, which affirmed the Order dated 27 June
19832 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to
probate the last will and testament3 with codicil4 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.5 Petitioner, in turn, filed an Opposition
on the following grounds: that the will sought to be probated was
not executed and attested as required by law; that the testator was
insane or otherwise mentally incapacitated to make a will at the
time of its execution due to senility and old age; that the will was
executed under duress, or influence of fear and threats; that it was
procured by undue and improper pressure and influence on the part
of the beneficiary who stands to get the lion's share of the testator's
estate; and lastly, that the signature of the testator was procured by
fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds
relied upon in the Opposition, a Probate Order was issued on 27
June 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind
within the meaning of the law at the time his "Huling Habilin" and
the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied
with, probate of the deceased's last will and codicil should have
been denied.
On 11 April 1986, the Court of Appeals rendered the decision under
review with the following findings: that Brigido Alvarado was not
blind at the time his last will and codicil were executed; that
assuming his blindness, the reading requirement of Art. 808 was
substantially complied with when both documents were read aloud
to the testator with each of the three instrumental witnesses and
the notary public following the reading with their respective copies
of the instruments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to the
testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado
blind for purpose of Art, 808 at the time his "Huling Habilin" and its
codicil were executed? If so, was the double-reading requirement of
said article complied with?
Regarding the first issue, there is no dispute on the following facts:
Brigido Alvarado was not totally blind at the time the will and codicil
were executed. However, his vision on both eyes was only of
"counting fingers at three (3) feet" by reason of the glaucoma which
he had been suffering from for several years and even prior to his
first consultation with an eye specialist on 14 December 1977.
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.
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.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator
was still capable of reading at the time his will and codicil were
prepared, the fact remains and this was testified to by his witnesses,
that Brigido did not do so because of his "poor," 10 "defective," 11
or "blurred"12 vision making it necessary for private respondent to
do the actual reading for him.
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 rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance
with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective,"
or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term
"blind" as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his instructions.
Hence, to consider his will as validly executed and entitled to
probate, it is essential that we ascertain whether Art. 808 had been
complied with.
Article 808 requires that in case of testators like Brigido Alvarado,
the will shall be read twice; once, by one of the instrumental
witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his
instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the
notary public and an instrumental witness, it was the lawyer
(private respondent) who drafted the eight-paged will and the five-
paged codicil who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of the
law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness read the
contents of the will and codicil to Brigido, probate of the latter's will
and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition
must be denied.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds
of fraud and trickery but are never intended to be so rigid 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.
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 physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the
will, the formal imperfections should be brushed aside when they
do not affect its purpose and which, when taken into account, may
only defeat the testator's will.

As a final word to convince petitioner of the propriety of the trial

court's Probate Order and its affirmance by the Court of Appeals,
we quote the following 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.