G.R. No. L-32213 November 26, 1973 acknowledge the same.
acknowledge the same. As the third witness is the notary public himself,
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 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
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
1
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.
FOR ALL THE FOREGOING, the judgment appealed from is hereby
reversed and the probate of the last will and testament of Valente Z. Cruz
(Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.

Admittedly, there are American precedents holding that notary public may, Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ.,
in addition, act as a witness to the executive of the document he has concur.
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.

2
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.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to
probate the documents in the Visayan dialect, marked Exhibits D and E, as
the testament and codicil duly executed by the deceased Da. Apolinaria
Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and
Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and
nearest surviving relative of said deceased, appealed from the decision,
insisting that the said exhibits were not executed in conformity with law.
The appeal was made directly to this Court because the value of the
properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix
lacked testamentary capacity and that the dispositions were procured
through undue influence. These grounds were abandoned at the hearing in
the court below, where the issue was concentrated into three specific
questions: (1) whether the testament of 1950 was executed by the testatrix
in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the witnesses; and (3) if
so, whether the codicil was thereby rendered invalid and ineffective. These
questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to
her witnesses Maria Paderogao and Vidal Allado, cook and driver,
respectively, of the deceased Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to
the will) inform the deceased that he had brought the "testamento" and
urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria
manifested that she could not go, because she was not feeling well; and
that upon Yap's insistence that the will had to be signed in the attorney's
office and not elsewhere, the deceased took the paper and signed it in the
presence of Yap alone, and returned it with the statement that no one
would question it because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for
reversing the trial Court's rejection of the improbable story of the
witnesses. It is squarely contradicted by the concordant testimony of the
instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife
Gloria Montinola, who asserted under oath that the testament was
executed by testatrix and witnesses in the presence of each other, at the
house of the decedent on General Hughes St., Iloilo City, on March 30,
1950. And it is highly unlikely, and contrary to usage, that either Tabiana or
Yap should have insisted that Da. Apolinaria, an infirm lady then over 80
years old, should leave her own house in order to execute her will, when
all three witnesses could have easily repaired thither for the purpose.
Moreover, the cross-examination has revealed fatal flaws in the testimony
of Contestant's witnesses. Both claim to have heard the word "testamento"
for the first time when Yap used it; and they claimed ability to recall that
word four years later, despite the fact that the term meant nothing to either.
It is well known that what is to be remembered must first be rationally
conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria
Paderogao was positive that Yap brought the will, and that the deceased
alone signed it, precisely on March 30, 1950; but she could remember no
other date, nor give satisfactory explanation why that particular day stuck
in her mind. Worse still, Allado claimed to have heard what allegedly
transpired between Yap and Da. Apolinaria from the kitchen of the house,
that was later proved to have been separated from the deceased's
quarters, and standing at a much lower level, so that conversations in the
main building could not be distinctly heard from the kitchen. Later, on
redirect examination, Allado sought to cure his testimony by claiming that
he was upstairs in a room where the servants used to eat when he heard
Yap converse with his mistress; but this correction is unavailing, since it
was plainly induced by two highly leading questions from contestant's
counsel that had been previously ruled out by the trial Court. Besides, the
contradiction is hardly consonant with this witness' 18 years of service to
the deceased.
3
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 (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed.
868, 870).
acknowledged before a notary public by the testator and the witnesses"
(Art. 806); i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in
executing the testamentary disposition. This was done in the case before
us. The subsequent signing and sealing by the notary of his certification
that the testament was duly acknowledged by the participants therein is no
part of the acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her witnesses
can not be said to violate the rule that testaments should be completed
without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman
maxim puts it, "uno codem die ac tempore in eadem loco", and no
reversible error was committed by the Court in so holding. It is noteworthy
that Article 806 of the new Civil Code does not contain words requiring that
the testator and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against
appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista
Angelo, Labrador, and Concepcion, JJ.,concur.

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

4
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
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
Decision2 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 petitioner’s 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]:
5
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;
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
6
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
testator’s 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 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.
"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 testator’s wife, Josefina
was not with them.
"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 Leticia’s family to live with him and
they took care of him. During that time, the testator’s 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
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
"It then found these grounds extant and proven, and accordingly
disallowed probate."5
Ruling of the Court of Appeals
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
7
unhygienic, crude and impolite ways" 6 did not make him a person of At the outset, we stress that only questions of law may be raised in a
unsound mind. 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
Hence, this Petition.7 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
Issues

The fact that public policy favors the probate of a will does not necessarily
Petitioner raises the following issues for our consideration:
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
"I. of a will.10 Verily, Article 839 of the Civil Code states the instances when a
will may be disallowed, as follows:
Whether or not the findings of the probate court are entitled to great
respect. "Article 839. The will shall be disallowed in any of the following cases:

"II. (1) If the formalities required by law have not been complied with;

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.
"III.
(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;

Whether or not Placido Valmonte has testamentary capacity at the time he (4) If it was procured by undue and improper pressure and influence, on
allegedly executed the subject will."8 the part of the beneficiary or of some other person;

In short, petitioner assails the CA’s allowance of the probate of the will of (5) If the signature of the testator was procured by fraud;
Placido Valmonte.
(6) If the testator acted by mistake or did not intend that the instrument he
This Court’s Ruling signed should be his will at the time of affixing his signature thereto."

The Petition has no merit. In the present case, petitioner assails the validity of Placido Valmonte’s will
by imputing fraud in its execution and challenging the testator’s state of
Main Issue: mind at the time.

Probate of a Will Existence of Fraud in the

8
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 testator’s 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.
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
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.19Furthermore, 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
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.
xxxxxxxxx
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?
A Yes sir.
9
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 On that particular date when it was acknowledged, August 9, 1983.
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?
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)
Eugenio Gomez:
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 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 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?
xxxxxxxxx
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)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, 1983,
what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9,
1983.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
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
10
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
testator’s 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.
11
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 taga-
pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang
silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa
aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa
mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28,
Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan
kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix
Azuela at ang pagkakaloob kong ito ay walang pasubali’t 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.
12
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
1981. Lungsod ng Maynila.

(Sgd.) (Sgd.)
EUGENIA E. IGSOLO PETRONIO Y. BAUTISTA
(Tagapagmana)
Doc. No. 1232 ; NOTARIO PUBLIKO
PATUNAY NG MGA SAKSI Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, Series of 1981 TAN # 1437-977-81
na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang
Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing The three named witnesses to the will affixed their signatures on the left-
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng hand margin of both pages of the will, but not at the bottom of the
lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami attestation clause.
namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa
harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa The probate petition adverted to only two (2) heirs, legatees and devisees
kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito. of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo,
who was alleged to have resided abroad. Petitioner prayed that the will be
EUGENIA E. IGSOLO allowed, and that letters testamentary be issued to the designated
address: 500 San Diego St. executor, Vart Prague.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of
QUIRINO AGRAVA the decedent.2 Geralda Castillo claimed that the will is a forgery, and that
address: 1228-Int. 3, Kahilum the true purpose of its emergence was so it could be utilized as a defense
Pandacan, Manila Res. Cert. No. A-458365 in several court cases filed by oppositor against petitioner, particularly for
Issued at Manila on Jan. 21, 1981 forcible entry and usurpation of real property, all centering on petitioner’s
right to occupy the properties of the decedent. 3 It also asserted that
LAMBERTO C. LEAÑO contrary to the representations of petitioner, the decedent was actually
address: Avenue 2, Blcok 7, survived by 12 legitimate heirs, namely her grandchildren, who were then
Lot 61, San Gabriel, G.MA., Cavite Res. residing abroad. Per records, it was subsequently alleged that decedent
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 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
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829 Oppositor Geralda Castillo also argued that the will was not executed and
Issued at Manila on March 2, 1981. attested to in accordance with law. She pointed out that decedent’s

13
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 wishes;" 7 and
from this perspective, rebutted oppositor’s 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 bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at
kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana
at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan
at sa kaliwang panig ng lahat at bawa’t 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 oppositor’s 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 oppositor’s 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 oppositor’s 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
14
The solution to this case calls for the application of Articles 805 and 806 of
the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure
of the attestation clause to state the number of pages of the will. But an
examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the
number 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. Sioca 13 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:
15
Even a cursory examination of the Will (Exhibit "D"), will readily show that
the attestation does not state the number of pages used upon which the
will is written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel
Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio
[Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect
that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the
Decisions of the Supreme Court are not applicable in the aforementioned
appeal at bench. This is so because, in the case of "Manuel Singson
versus Emilia Florentino, et al., supra," although the attestation in the
subject Will did not state the number of pages used in the will, however,
the same was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause shall
state the number of pages or sheets upon which the will is written, which
requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of
the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L.
Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata,
54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must
contain a statement of the number of sheets or pages composing the will
and that if this is missing or is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not by evidence aliunde, but
by a consideration or examination of the will itself. But here the situation is
different. While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of the body
of the will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator
from being defeated by purely technical considerations." (page 165-165,
supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually composed of
only two pages duly signed by the testatrix and her instrumental witnesses.
As earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as "Pagina dos" comprises the attestation
clause and the acknowledgment. The acknowledgment itself states that
"this Last Will and Testament consists of two pages including this page"
(pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is
not stated in any part of the Will. The will does not even contain any
notarial 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,
16
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
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 another’s 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
17
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
testator’s 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.
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.
18
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.
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.
19
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. 45Taken 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.

20
G.R. No. 211972 July 22, 2015
WILSON GO and PETER GO, Petitioners,
vs.
THE ESTATE OF THE LATE FELISA TAMIO DE BUENA VENTURA,
represented by RESURRECCION A. BIHIS, RHEA A. BIHIS, and
REGINA A. BIHIS; and RESURRECCION A. BIHIS, RHEA A. BIHIS and
REGINA A. BIHIS, in their personal capacities, Respondents.
x-----------------------x
G.R. No. 212045
ELLA A. GUERRERO, DELFIN A. GUERRERO, JR. and LESTER ALVIN
A. GUERRERO, Petitioners,
vs.
THE ESTATE OF THE LATE FELISA TAMIO DE BUENA VENTURA,
herein represented by RESURRECION A. BIHIS, RHEA A. BIHIS and
REGINA A. BIHIS, and RESURRECION A. BIHIS, RHEA A. BIHIS and
REGINA A. BIHIS, in their personal capacities, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in these consolidated1 petitions for review on certiorari 2 are the
Decision3 dated December 19, 2013 and the Resolution 4 dated April 1,
2014 rendered by the Court of Appeals (CA) in CA-G.R. CV No. 96697,
which modified the Decision5 dated June 8, 2009 of the Regional Trial
Court of Quezon City, Branch 224 (RTC) in Civil Case No. Q-97-32515,
and thereby ordered: (a) the nullification of the Deed of Sale dated January
23, 1997 in favor of Wilson Go (Wilson) and Peter Go (Peter), petitioners
in G.R. No. 211972; (b) the reconveyance of the disputed property to the
Estate of Felisa Tamio; and (c) the cancellation of Transfer Certificate of
Title (TCT) No. N-1704 75, as well as the issuance of a new title in the
name of the Estate of Felisa Tamio by the Register of Deeds.
The Facts
On March 17, 1959, the late Felisa Tamio de Buenaventura (Felisa)
purchased from Carmen Zaragosa, Inc. a parcel of land with an area of
533 square meters, more or less, situated at Retiro corner Kanlaon
Streets, Sta. Mesa Heights, Quezon City (subject property) and, thus, TCT
No. 45951/T-233 was issued in her name. Thereafter, she constructed a
three-storey building thereon, called D'Lourds Building, where she resided
until her death on February 19, 1994. 6 On February 10, 1960, Felisa
supposedly sold the subject property to one of her daughters, Bella
Guerrero (Bella), the latter's husband, Delfin Guerrero, Sr. (Delfin, Sr.), and
Felimon Buenaventura, Sr. (Felimon, Sr.), Felisa's common-law
husband.7 Bella, co-petitioner in G.R. No. 212045, and Delfin, Sr. paid
₱15,000.00 as consideration therefor. 8 Thus, TCT No. 45951/T-233 in the
name of Felisa was cancelled and TCT No. 49869 9 was issued in the
names of Felimon, Sr. and Bella, married to Delfin, Sr..
Sometime in 1968, Resurrecion A. Bihis 10 (Resurrecion), the other
daughter of Felisa, sister of Bella, and respondent in both G.R. Nos.
211972 a nd 212045, began to occupy the second floor of the D'Lourds
Building and stayed therein until her death in 2007. 11
As it appears that TCT No. 49869 in the names of Felimon, Sr. and Bella,
married to Delfin, Sr., was irretrievably destroyed in the interim, Bella
caused its reconstitution and was issued TCT No. RT-74910
(49869),12 again registered in their names.
When Felisa died on February 19, 1994, she allegedly bequeathed, in a
disputed last will and testament, half of the subject property to Resurrecion
and her daughters, Rhea A. Bihis (Rhea) and Regina A. Bihis (Regina),
corespondents in both G.R. Nos. 211972 and 212045 (collectively, the
Bihis Family). Thus, on April 19, 1994, the Bihis Family caused the
annotation of an adverse claim on TCT No. RT-74910 (49869). Felisa's
purported will likewise declared Bella as the administrator of the subject
property.13
On the strength of such appointment, Bella filed, on May 24, 1994, a
petition for the probate of Felisa's will. She was eventually appointed as
21
the administratrix of the Estate of Felisa and, in an inventory of Felisa's
properties, Bella included the subject property as part of said estate. 14
On January 22, 1997, the adverse claim of the Bihis Family was cancelled.
The following day, January 23, 1997, Felimon Buenaventura, Jr. (Felimon,
Jr.) and Teresita Robles, a.k.a. Rosalina Buenaventura
Mariano15 (Teresita), apparently the heirs of Felimon, Sr. (Heirs of Felimon,
Sr.), executed a purported Extrajudicial Settlement of the Estate of Felimon
Buenaventura, Sr., and caused its annotation on TCT No. RT-74910
(49869). By virtue thereof, TCT No. RT-74910 (49869) was cancelled and
TCT No. N-170416 was issued in the names of the Heirs of Felimon, Sr.,
Bella, and her co-petitioners in G.R. No. 212045, Delfin A. Guerrero, Jr.
(Delfin, Jr.) and Lester Alvin A. Guerrero (Lester) (collectively, Bella, et
al.).16
On the very same day, January 23, 1997, through a Deed of Sale of even
date, the subject property was sold to Wilson and Peter by Bella, et al. for
the amount of ₱4,500,000.00, a transaction completely unknown to
Felisa's other heirs, the Bihis Family. Thus, TCT No. N-170416 was
cancelled and, in lieu thereof, TCT No. 170475 was issued in the names of
Wilson and Peter. Thereafter, Wilson and Peter filed ejectment cases
against the occupants and/or lessees of the subject property. 17
In July 1997, the probate court revoked the appointment of Bella as
administratrix of the Estate of Felisa and eventually, granted letters of
administration to Resurrecion.18 Hence, on October 17, 1997, herein
respondents, the Estate of Felisa, as represented by the Bihis Family, and
the Bihis Family, in their personal capacities (collectively, respondents),
filed a complaint for reconveyance and damages before the RTC,
docketed as Civil Case No. Q-97-32515, against Bella, et al., Wilson,
Peter, and the Register of Deeds of Quezon City, alleging that Felisa,
during her lifetime, merely entrusted the subject property to Felimon, Sr.,
Bella, and Delfin, Sr. for the purpose of assisting Bella and Delfin, Sr. to
obtain a loan and mortgage from the Government Service Insurance
System (GSIS). To facilitate the transaction, Felisa agreed to have the title
over the subject property transferred to Bella and Felimon, Sr. However,
Felisa never divested herself of her ownership over the subject property,
as evidenced by her continuous residence thereon, as well as her act of
leasing several units to various tenants. In fact, in a letter 19 dated
September 21, 1970 (September 21, 1970 letter) addressed to Delfin, Sr.,
Felisa reminded Bella, Delfin, Sr., and Felimon, Sr. that the subject
property was merely entrusted to them for Bella and Delfin, Sr. to procure
a loan from the GSIS.20 At the bottom of the letter, Bella's and Delfin, Sr.' s
signatures appear beside their names.21
Likewise, respondents alleged that Wilson and Peter were buyers in bad
faith, as they were aware of the facts and circumstances that would have
warranted further inquiry into the validity of the title of the sellers, Bella, et
al. They averred that Wilson and Peter knew that the building was
occupied by individuals other than the sellers, as in fact, the Bihis Family
was residing therein.22
In their defense, Bella and Felimon, Jr. claimed that the subject property
was owned by Bella and (the late) Felimon, Sr., as evidenced by TCT No.
RT-74910 (49869), which title was issued to them as early as February 10,
1960. Such title has therefore subsisted for almost thirty seven (37) years
without having been voided or nullified by a court decree. Moreover, they
have exercised acts of ownership over the subject property, such as
m01igaging the same and leasing the building to third parties. Finally, they
asserted that Bella's act of including the subject property in the inventory
of properties of the Estate of Felisa was merely because of inadvertence. 23
For his part, Wilson claimed that when he and his brother, Peter,
purchased the subject property from Bella, et al. on January 23, 1997, he
was not aware of the judicial settlement of the Estate of Felisa. He testified
that before they acquired the subject property, he verified the validity of the
title covering the same with the Registry of Deeds, and that a period of two
(2) months had lapsed before the sale was consummated because his
lawyer advised him to request Bella to cancel the encumbrance annotated
on the title over the subject property. However, he asserted that .his lawyer
merely advised him to ask for the cancellation of the annotation but he was
not aware of the details surrounding the same. Eventually, the annotation
was cancelled and that he only knew that the subject property was
included in the Estate of Felisa when herein respondents' complaint before
the RTC was filed. As such, he maintained that he and Peter were
purchasers in good faith.24
22
The RTC Ruling
In a Decision25 dated June 8, 2009, the RTC found that there was an
implied trust between Felisa, on the one hand, and Bella and Felimon, Sr.,
on the other, created by operation of law. The RTC concluded that it was
the intention of the late Felisa to merely entrust to Bella and Felimon, Sr.
the subject property for the sole purpose of using the same as collateral to
secure a loan with the GSIS. As such, while it is true that a title was issued
in the names of Bella, Delfin, Sr., and Felimon, Sr. by virtue of the sale of
the subject property to them, it was clear that Felisa never intended to
relinquish her ownership over the subject property. In concluding so, the
RTC gave probative weight to the September 21, 1970 letter executed and
signed by Felisa which not only reminded Bella, Delfin, Sr., and Felimon,
Sr. that the subject property was merely entrusted to them for purposes of
securing a loan from the GSIS, but also expressed Felisa's desire to have
the subject property divided equally among her heirs.26
However, the R TC held that reconveyance can no longer be effected
since the subject property had already been transferred to Wilson and
Peter, whom it found to be purchasers in good faith. The RTC found that
through Wilson's testimony, they were able to disprove respondents'
allegation that they were aware of an infirmity in the title of the sellers
when they acquired the subject property.27
Consequently, as Bella, Delfin, Sr., and Felimon, Sr. were unjustly enriched
at the expense of the respondents who, as compulsory heirs, were also
entitled to their share in the subject property, the RTC directed Bella, et al.
to pay plaintiffs, jointly and severally, the amounts of: (a) ₱2,000,000.00 as
compensatory damages, representing half of the purchase price of the
subject property considering that reconveyance can no longer be granted;
(b) ₱200,000.00 as moral damages; (c) ₱100,000.00 as exemplary
damages; and (d) ₱200,000.00 as attorney's fees. 28
Dissatisfied, the following parties filed their separate appeals before the
CA: the Estate of Felisa; the Bihis Family; the Estate of Rosalinda B.
Mariano;29 and Bella, Delfin, Jr., and Lester. 30 The CA simplified the issues
raised in the separate appeals, as follows: (a) whether or not there was a
trust established by Felisa in favor of Bella, Delfin, Sr., and Felimon, Sr.;
(b) whether or not the action for reconveyance had already prescribed; and
(c) whether or not Wilson and Peter are purchasers in good faith. 31
The CA Ruling
In a Decision32 dated December 19, 2013, the CA modified the RTC
Decision, and thereby ordered: (a) the nullification of the Deed of Sale
dated January 23, 1997 in favor of Wilson and Peter; ( b) the
reconveyance of the disputed property to the Estate of Felisa; and (c) the
cancellation of TCT No. N-170475 in the name of Wilson and Peter, as
well as the issuance of a new title in the name of the Estate of Felisa by
the Register of Deeds.33
In its ruling, the CA upheld the RTC's finding that an implied trust was
constituted between Felisa, during her lifetime, and Bella, Delfin, Sr., and
Felimon, Sr. when the former sold the subject property to the latter. Like
the RTC, it gave substantial weight and credence to the September 21,
1970 letter executed by Felisa which expressed her intention to convey the
subject property to Bella, Delfin, Sr., and Felimon, Sr. only for the purpose
of obtaining a loan from the GSIS. The CA similarly found that Felisa had
not intended to relinquish her ownership over the subject property in their
favor, as evidenced not only by the said letter but also by her
contemporaneous and subsequent acts of ownership, i.e., leasing the
building to tenants, instituting ejectment suits, having business permits
issued in her name, and including the subject property in her last will and
testament.34
Moreover, the CA ruled that the issuance of TCT No. 49869 in the names
of Bella, Delfin, Sr., and Felimon, Sr. did not operate to vest ownership of
the subject property upon them, as a certificate of title is not equivalent to
title. Hence, the presentation of TCT No. 49869 does not conclusively
prove their claim of ownership over the subject property. 35
With respect to the issue of whether or not the action for reconveyance
based on an implied trust had already prescribed, the CA found that
prescription has not set in. Citing jurisprudence, it held that an action for
reconveyance based on an implied trust prescribes in ten ( 10) years, to be
counted from the date of issuance of the Torrens title over the property.
23
However, the rule applies only when the claimant or the person enforcing
the trust is not in possession of the property. When the claimant is in actual
possession of the property, the action for reconveyance, which is
effectively an action for quieting of title, is imprescriptible. In this case, it
has been indubitably established that the Bihis Family have been in actual
possession of the subject property; hence, their action for reconveyance is
imprescriptible.36
Finally, with regard to the question of whether or not Wilson and Peter are
purchasers in good faith, the CA ruled in the negative. It took into
consideration the admission made by Wilson that he has knowledge of the
adverse claim of the Bihis Family annotated on the title of the subject
property but denied knowledge of its contents. Likewise, he admitted that
he directed his lawyer to have the said annotation cancelled before
purchasing the subject property. Records also show that he knew that the
Bihis Family have been occupying the second floor of the D'Lourds
Building. However, despite knowledge of the foregoing facts, he and his
brother failed to make the necessary inquiries as to the validity of the title
of the sellers, Bella, et al. Consequently, he and Peter cannot be
considered as buyers in good faith.37
Wilson and Peter, Bella, Delfin, Jr., and Lester, Felimon, Jr., and the Estate
of Rosalinda Buenaventura Mariano filed separate motions for
reconsideration,38 which were all denied in the Resolution39 dated April 1,
2014; hence, these petitions.
The Issues Before the Court
The issues advanced for the Court's consideration are: (a) whether or not
the CA erred in ruling that there was an implied trust created between
Felisa, on one hand, and Bella, Delfin, Sr., and Felimon, Sr., on the other;
(b) whether or not the action for reconveyance had not yet prescribed; and
(c) whether or not Wilson and Peter are purchasers in good faith.
The Court's Ruling
The petitions are bereft of merit.
The following facts are undisputed: in 1960, Felisa, as owner of the subject
property, transferred the same to her daughter Bella, married to Delfin, Sr.,
and Felimon, Sr. to assist them in procuring a loan from the GSIS. In view
thereof, her title over the property, TCT No. 45951/T-233, was cancelled
and a new one, TCT No. 49869, was issued in the names of Bella, married
to Delfin, Sr., and Felimon, Sr. After it was lost, TCT No. 49869 was
reconstituted and TCT No. RT-74910 (49869) was issued in their names.
Upon Felisa's death in 1994, the Bihis Family, Felisa's other heirs who
have long been occupying the subject property, caused the annotation of
their adverse claim over the same on TCT No. RT-74910 (49869).
Subsequently, however, or on January 22, 1997, the said annotation was
cancelled, and the next day, the Heirs of Felimon, Sr. executed an
Extrajudicial Settlement of his estate and caused its annotation on said
title. TCT No. RT-74910 (49869) was then cancelled and TCT No. N-
170416 was issued in the names of Bella, et al. Finally, by virtue of a Deed
of Sale dated January 23, 1997, the subject property was sold to Wilson
and Peter, in whose names TCT No. 170475 currently exists. Months later,
or on October 17, 1997,40 the complaint for reconveyance and damages,
docketed as Civil Case No. Q-97-32515, was instituted.
From the foregoing factual milieu, the Court holds that: one, a trust was
established between Felisa, on the one hand, and Bella, Delfin, Sr., and
Felimon, Sr., on the other, albeit not an implied trust as concluded by the
RTC and the CA but an express one; two, the present action for
reconveyance has not yet prescribed; and, three, Wilson and Peter are not
purchasers in good faith.
I.
Trust is the right to the beneficial enjoyment of property, the legal title to
which is vested in another. It is a fiduciary relationship that obliges the
trustee to deal with the property for the benefit of the
beneficiary.1âwphi1 Trust relations between parties may either be express
or implied. An express trust is created by the intention of the trustor or of
the parties, while an implied trust comes into being by operation of law. 41
24
Express trusts are created by direct and positive acts of the parties, by
some writing or deed, or will, or by words either expressly or impliedly
evincing an intention to create a trust. Under Article 1444 of the Civil Code,
"[n]o particular words are required for the creation of an express trust, it
being sufficient that a trust is clearly intended." It is possible to create a
trust without using the word "trust" or "trustee." Conversely, the mere fact
that these words are used does not necessarily indicate an intention to
create a trust. The question in each case is whether the trustor manifested
an intention to create the kind of relationship which to lawyers is known as
trust. It is immaterial whether or not he knows that the relationship which
he intends to create is called a trust, and whether or not he knows the
precise characteristics of the relationship which is called a trust. 42
Further, in the case of Tamayo v. Callejo, 43 the Court recognized that a
trust may have a constructive or implied nature in the beginning, but the
registered owner's subsequent express acknowledgement in a public
document of a previous sale of the property to another party effectively
converted the same into an express trust.44
In the present case, both the R TC and the CA found that an implied trust
was established, heavily giving credence, among others, to the September
21, 1970 letter executed by Felisa during her lifetime, which partly reads:
Dear Delfin,
Ipinaaabot ko sa iyo ang sulat kong ito upang malaman mo ang aking
nagiging damdamin. Hinihiling ko sa iyo at ipinakikiusap sa iyo tungkol
doon sa late at building ng D 'lourds.
Hindi naman kaila sa ivo kung papaano ko ito naisalin sa inyong pangalan
nina Filemon C. Buenaventura Sr., Bella Alvarez Guerrero at Delfin
Guerrero Sr. Ang dahilan nito ay dahil sa pag-utang sa GSIS.
Kaya gusto kong malaman mo na ito ay nagpapatotoo na ito ay sarili kong
pag-aari at walang sinumang nagbigay o tumulong sa akin sa lupang ito.
At maski si Ka Fe ling mo ay walang naibigay na pera dito.
Kaya hinihiling ko ang gusto kong mangyari sa ngayon ay maging
kaparehong-kapareho ang paghahati ng bawat isa sa anumang aking
kabuhayan.
Kaya hinihiling ko sa iyo Delfin na kung maaari lamang ay ang lahat ng
nakatala dito ay pirmahan ninyo.
x x x x45 (Emphasis and underscoring supplied)
Beneath the letter appear the signatures of Bella and Delfin, and the
signature of Felisa signing as "MOMMY" as well.46
Taking the contents of the foregoing letter into consideration – the validity
and due execution of which were never put in issue, hence, indubitably
established - the Court therefore differs from the finding of the courts a quo
that an implied trust was established; instead, the Court rules that an
express trust was duly proved in this case.
The words of Felisa in the above-quoted letter unequivocally and
absolutely declared her intention of transferring the title over the subject
property to Bella, Delfin, Sr., and Felimon, Sr. in order to merely
accommodate them in securing a loan from the GSIS. She likewise stated
clearly that she was retaining her ownership over the subject property and
articulated her wish to have her heirs share equally therein. Hence, while
in the beginning, an implied trust was merely created between Felisa, as
trustor, and Bella, Delfin, Sr., and Felimon, Sr., as both trustees and
beneficiaries, the execution of the September 21, 1970 letter settled, once
and for all, the nature of the trust established between them as an express
one, their true intention irrefutably extant thereon.
Bella's attempt to thwart the express trust established in this case by
claiming that she affixed her signature on the September 21, 1970 letter
only "to appease" her mother, Felisa, and that she could afford to sign the
letter since the title covering the subject property was in their name as
owners anyway,47 does not hold water. As correctly ruled by the CA, citing
Lee Tek Sheng v. CA,48 the "[m]ere issuance of the certificate of title in the
name of any person does not foreclose the possibility that the real property
25
may be under co-ownership with persons not named in the ce1iificate or
that the registrant may only be a trustee or that other parties may have
acquired interest subsequent to the issuance of the certificate of title," 49 as
in this case.50 Registration does not vest title; it is merely the evidence of
such title.51 Moreover, the Court notes that even during the proceedings
before the RTC, Bella never denied the purpose for which the sale to them
of the subject property was effected. Instead, they relied heavily and
anchored their defense on the existence of their certificate of title covering
the subject property, which, to reiterate, was insufficient to prove their
ownership over the same independent of the express trust.
In light of the foregoing, while the Court agrees with the RTC, as affirmed
by the CA, that Bella, Delfin, Sr., and Felimon, Sr. only hold the subject
property in trust for Felisa, the Court however finds that an express trust,
not an implied one, was established in this case.
II.
Anent the issue of prescription, the Court finds that the action for
reconveyance instituted by respondents has not yet prescribed, following
the jurisprudential rule that express trusts prescribe in ten (10) years from
the time the trust is repudiated.52
In this case, there was a repudiation of the express trust when Bella, as
the remaining trustee, sold the subject property to Wilson and Peter on
January 23, 1997.53 As the complaint for reconveyance and damages was
filed by respondents on October 17, 1997,54 or only a few months after the
sale of the subject property to Wilson and Peter, it cannot be said that the
same has prescribed.
III.
Finally, with regard to the question of whether or not Wilson and Peter are
purchasers of the subject property in good faith, the Court concurs with the
CA' s finding that they are not.
A purchaser in good faith is one who buys the property of another without
notice that some other person has a right to, or an interest in, such
property and pays a full and fair price for the same at the time of such
purchase, or before he has notice of some other person's claim or interest
in the property.55 Corollary thereto, when a piece of land is in the actual
possession of persons other than the seller, the buyer must be wary and
should investigate the rights of those in possession. Without making such
inquiry, one cannot claim that he is a buyer in good faith. When a man
proposes to buy or deal with realty, his duty is to read the public
manuscript, that is, to look and see who is there upon it and what his rights
are. A want of caution and diligence, which an honest man of ordinary
prudence is accustomed to exercise in making purchases, is in
contemplation of law, a want of good faith. The buyer who has failed to
know or discover that the land sold to him is in adverse possession of
another is a buyer in bad faith.56
In his testimony57 before the R TC, Wilson claimed to have verified the
validity of the title covering the subject property before the Registry of
Deeds. However, he also admitted that two (2) months had lapsed before
the sale could be consummated because his lawyer advised him to
request Bella, one of the sellers, to cancel the encumbrance annotated on
the title of the subject property. He also claimed that he had no knowledge
about the details of such annotation, and that he was aware that
individuals other than the sellers were in possession of the subject
property.
As aptly concluded by the CA, such knowledge of the existence of an
annotation on the title covering the subject property and of the occupation
thereof by individuals other than the sellers negates any presumption of
good faith on the part of Wilson and Peter when they purchased the
subject property. A person who deliberately ignores a significant fact which
would create suspicion in an otherwise reasonable man is not an innocent
purchaser for value,58 as in this case.
WHEREFORE, the petitions are DENIED. The Decision dated December
19, 2013 and the Resolution dated April 1, 2014 of the Court of Appeals in
CA-G.R. CV No. 96697 are hereby AFFIRMED.
26
G.R. No. L-26808 May 23, 1969 special proceedings then pending before respondent Court. He is
therefore entitled to have our decision reconsidered.
REV. FATHER LUCIO V. GARCIA, petitioner,
vs. WHEREFORE, the decision of March 28, 1969 is set aside and the
HON. CONRADO M. VASQUEZ, respondent. petition for certiorari granted, with petitioner being thus entitled to the
refund of the second docket fee of P940.00 paid under Receipt No. J-
R E S O L U T I O N* 1459986 issued on December 2, 1965, and the order of respondent
Court of November 6, 1965 ordering such payment of the second
FERNANDO, J.: docket fee annulled. Without pronouncement as to costs. lawphi1.ñet

This is a motion for the reconsideration of our decision of March 28,

1969, filed by petitioner. In the opinion rendered in that case, we
stated: "Petitioner should have been aware that there is no escape
from the payment of the corresponding docket fee, otherwise, the
Court is not called upon to act on a complaint or petition. Nor does it
suffice to vary the rule simply because there is only one decedent
whose estate is thus to be disposed of by will that must first be
probated. It is not farfetched or implausible that a decedent could have
left various wills. Under such circumstances, there is nothing inherently
objectionable in thus exacting the payment of a docket fee, every time
a will is sought to be probated. Petitioner here could have sought the
probate of the will presented by him in the same proceeding. He did
not; he filed instead a separate action."

While not disputing the correctness of the above principle announced,

petitioner, in this motion for reconsideration, would assert that he did
not file a separate action "but instead elected to file the probate of the
decedent's 1956 Will in the same Sp. Proc. 62618, then pending
before the respondent Court." Petitioner's statement of fact is correct.
Under the circumstances then, while the doctrine to the effect that a
court of justice is not called upon to act on a complaint will petition in
the absence of a payment of the corresponding docket fee every time a
will is sought to be probated must be considered as subsisting, it finds
no application to the present case, as petitioner did not file a separate
action but instead sought to have the other will probated in the same

27
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 of the1
First Civil Cases Division of the then Intermediate Appellate Court, now
Court of Appeals, which affirmed the Order dated 27 June 1983 of the
2 grounds: that the will sought to be probated was not executed and
Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last
will and testament with codicil of the late Brigido Alvarado.
3 4
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. Petitioner, in turn, filed an Opposition on the following
5
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
28
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), the contents of which were
6
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise
was admitted by private respondent. Dr. Roasa explained that
7
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." Since the testator was still capable of reading at that time,
9
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," "defective," or "blurred" vision
10 11 12
making it necessary for private respondent to do the actual reading for
him.
The following pronouncement in Garcia vs. Vasquez provides an
13
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
29
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.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. With four persons following the reading word for word with
16
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.
30
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
WHEREFORE, the petition is DENIED and the assailed Decision of
respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained pending,
this decision is immediately executory. Costs against petitioner.
SO ORDERED.

As a final word to convince petitioner of the propriety of the trial court's Cruz, Griño-Aquino, Davide, Jr. and Quiason, JJ., concur.
Probate Order and its affirmance by the Court of Appeals, we quote the
following pronouncement in Abangan v. Abangan, to wit:
18

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.

31
G.R. No. 176943 October 17, 2008
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO
ALUAD, and CONNIE ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido Aluad
were raised by the childless spouses Matilde Aluad (Matilde) and Crispin
Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677,
680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife
Matilde adjudicated the lots to herself.1
On November 14, 1981, Matilde executed a document entitled "Deed of
Donation of Real Property Inter Vivos"2(Deed of Donation) in favor of
petitioners’ mother Maria3 covering all the six lots which Matilde inherited
from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR
[Matilde] for the DONEE [Maria], the latter being adopted and hav[ing]
been brought up by the former the DONOR, by these presents, transfer
and convey, BY WAY OF DONATION, unto the DONEE the property
above-described, to become effective upon the death of the DONOR,
but in the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force
and effect; Provided, however, that anytime during the lifetime of the
DONOR or anyone of them who should survive, they could use[,]
encumber or even dispose of any or even all of the parcels of landherein
donated.4 (Emphasis and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674
and 676 were issued in Matilde’s name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of
Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a last will and
testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her
"remaining properties" including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of
the same year.7
On August 21, 1995, Maria’s heirs-herein petitioners filed before the
Regional Trial Court (RTC) of Roxas City a Complaint, 8 for declaration and
recovery of ownership and possession of Lot Nos. 674 and 676, and
damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-
described until January 1991 when defendant entered and possessed the
two (2) parcels of land claiming as the adopted son of Crispin Aluad who
refused to give back possession until Matilde Aluad died in [1994] and then
retained the possession thereof up to and until the present time, thus,
depriving the plaintiffs of the enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by
inheritance by right of representation from their deceased mother, Maria
Aluad who is the sole and only daughter of Matilde Aluad[.] 9
To the complaint respondent alleged in his Answer. 10
That Lot 674 is owned by the defendant as this lot was adjudicated to him
in the Last Will and Testament of Matilde Aluad x x x while Lot 676 was
purchased by him from Matilde Aluad. These two lots are in his possession
as true owners thereof.11 (Underscoring supplied)
32
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed
to Conform to Evidence12 to which it annexed an Amended
Complaint13 which cited the donation of the six lots via Deed of Donation in
favor of their mother Maria. Branch 15 of the RTC granted the motion and
admitted the Amended Complaint.14
Respondent filed an Amended Answer15 contending, inter alia, that the
Deed of Donation is forged and falsified and petitioners’ change of theory
showed that "said document was not existing at the time they filed their
complaint and was concocted by them after realizing that their false claim
that their mother was the only daughter of Matild[e] Aluad cannot in
anyway be established by them"; 16 and that if ever said document does
exist, the same was already revoked by Matilde "when [she] exercised all
acts of dominion over said properties until she sold Lot 676 to defendant
and until her death with respect to the other lots without any opposition
from Maria Aluad."17
The trial court, by Decision18 of September 20, 1996, held that Matilde
could not have transmitted any right over Lot Nos. 674 and 676 to
respondent, she having previously alienated them to Maria via the Deed of
Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos.
674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots to
the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorney’s fees;
b. Twenty thousand pesos (P20,000.00), representing the income from
subject Lot 676, a year from 1991 up to the time said lot is delivered to the
plaintiffs, together with the interest thereof at the legal rate until fully paid;
c. Ten thousand pesos (P10,000.00), representing the income from the
subject Lot No. 674, a year from 1991 up to the time said lot is delivered to
the plaintiffs, plus legal interest thereof at the legal rate until fully paid; and
d. The costs of the suit.
Defendant’s counterclaim is ordered dismissed for lack of merit.
SO ORDERED.19
On petitioners’ motion, the trial court directed the issuance of a writ of
execution pending appeal.20 Possession of the subject lots appears to
have in fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial
court’s decision, it holding that the Deed of Donation was actually a
donation mortis causa, not inter vivos, and as such it had to, but did not,
comply with the formalities of a will. Thus, it found that the Deed of
Donation was witnessed by only two witnesses and had no attestation
clause which is not in accordance with Article 805 of the Civil Code,
reading:
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 that testator signed the will and every page
thereof, or caused some other person to write his name, under his express
33
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.
While the appellate court declared respondent as the rightful owner of Lot
No. 676, it did not so declare with respect to Lot No. 674, as Matilde’s last
will and testament had not yet been probated. Thus the Court of Appeals
disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is
hereby GRANTED and the Decision of the Regional Trial Court of Roxas
City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for
declaration of ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the
lawful owner of Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-
appellees are directed to return the possession of the said lot to the
defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-
appellant as attorney’s fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration 23 having been denied,24 petitioners filed
the present Petition for Review,25contending that the Court of Appeals
erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW
(RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF
DONATION INTER VIVOS IN FAVOR OF PETITIONERS’ MOTHER IS IN
FACT A DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL
OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED
OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO
SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL
OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT
RESPONDENT CANNOT BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF
EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a)
SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING
PETITIONERS TO RETURN POSSESSION OF LOT 676 TO
RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEY’S
FEES AND COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to petitioners’
mother one of mortis causa, it having the following characteristics:
(1) It conveys no title or ownership to the transferee before the death of
the transferor; or what amounts to the same thing, that the transferor
should retain the ownership (full or naked) and control of the property while
alive;
(2) That before the death of the transferor, the transfer should be
revocable by the transferor at will, ad nutum; but revocability may be
34
provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the
transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective
upon the death of the DONOR" admits of no other interpretation than to
mean that Matilde did not intend to transfer the ownership of the six lots to
petitioners’ mother during her (Matilde’s) lifetime.28
The statement in the Deed of Donation reading "anytime during the
lifetime of the DONOR or anyone of them who should survive, they
could use, encumber or even dispose of any or even all the parcels of
land herein donated"29 means that Matilde retained ownership of the lots
and reserved in her the right to dispose them. For the right to dispose of a
thing without other limitations than those established by law is an attribute
of ownership.30 The phrase in the Deed of Donation "or anyone of
them who should survive" is of course out of sync. For the Deed of
Donation clearly stated that it would take effect upon the death of the
donor, hence, said phrase could only have referred to the donor Matilde.
Petitioners themselves concede that such phrase does not refer to the
donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in the
disputed paragraph should only refer to Matilde Aluad, the donor, because
she was the only surviving spouse at the time the donation was
executed on 14 November 1981, as her husband – Crispin Aluad [–] had
long been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period
when the donor provides in the aforequoted provisions, "but in the event
that the DONEE should die before the DONOR, the present donation shall
be deemed rescinded and [of] no further force and effect". When the donor
provides that should the "DONEE" xxx die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect"
the logical construction thereof is that after the execution of the subject
donation, the same became effective immediately and shall be "deemed
rescinded and [of] no further force and effect" upon the arrival of a
resolutory term or period, i.e., the death of the donee which shall occur
before that of the donor. Understandably, the arrival of this resolutory term
or period cannot rescind and render of no further force and effect a
donation which has never become effective, because, certainly what
donation is there to be rescinded and rendered of no further force and
effect upon the arrival of said resolutory term or period if there was no
donation which was already effective at the time when the donee died?
32
(Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however,
thus:
x x x [P]etitioners contend that the stipulation on rescission in case
petitioners [donee] die ahead of [donor] Cabatingan is a resolutory
condition that confirms the nature of the donation as inter vivos.
Petitioners’ arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the donation shall be
rescinded in case [donees] the petitioners predecease [the donor]
Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive
characteristics of a donation mortis causa is that the transfer should be
considered void if the donor should survive the donee. This is exactly what
Cabatingan provided for in her donations. If she really intended that the
donation should take effect during her lifetime and that the ownership of
the properties donated to the donee or independently of, and not by
reason of her death, she would not have expressed such proviso in the
subject deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation is mortis
causa is fortified by Matilde’s acts of possession as she continued to pay
35
the taxes for the said properties which remained under her name;
appropriated the produce; and applied for free patents for which OCTs
were issued under her name."35
The donation being then mortis causa, the formalities of a will should have
been observed36 but they were not, as it was witnessed by only two, not
three or more witnesses following Article 805 of the Civil Code. 37
Further, the witnesses did not even sign the attestation clause 38 the
execution of which clause is a requirement separate from the subscription
of the will and the affixing of signatures on the left-hand margins of the
pages of the will. So the Court has emphasized:
x x x 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[s] 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.
x x x 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.39 (Emphasis and underscoring
supplied)
Furthermore, the witnesses did not acknowledge the will before the notary
public,40 which is not in accordance with the requirement of Article 806 of
the Civil Code that every will must be acknowledged before a notary public
by the testator and the witnesses.
More. The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was not also
followed.41
The Deed of Donation which is, as already discussed, one of mortis causa,
not having followed the formalities of a will, it is void and transmitted no
right to petitioners’ mother. But even assuming arguendo that the
formalities were observed, since it was not probated, no right to Lot Nos.
674 and 676 was transmitted to Maria. 42 Matilde thus validly disposed of
Lot No. 674 to respondent by her last will and testament, subject of course
to the qualification that her (Matilde’s) will must be probated. With respect
to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde
to respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the donation of Lot No.
674 in favor of their mother is indeed mortis causa, hence, Matilde could
devise it to respondent, the lot should nevertheless have been awarded to
them because they had acquired it by acquisitive prescription, they having
been in continuous, uninterrupted, adverse, open, and public possession
of it in good faith and in the concept of an owner since 1978. 43
Petitioners failed to raise the issue of acquisitive prescription before the
lower courts, however, they having laid their claim on the basis of
inheritance from their mother. As a general rule, points of law, theories,
and issues not brought to the attention of the trial court cannot be raised
for the first time on appeal. 44 For a contrary rule would be unfair to the
adverse party who would have no opportunity to present further evidence
material to the new theory, which it could have done had it been aware of it
at the time of the hearing before the trial court. 45
WHEREFORE, the petition is DENIED.
36