FIRST DIVISION

[G.R. No. 118248. April 5, 2000.]

DKC HOLDINGS CORPORATION, Petitioner, v. COURT OF APPEALS, VICTOR U. BARTOLOME and REGISTER OF

DEEDS FOR METRO MANILA, DISTRICT III, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review on certiorari seeking the reversal of the December 5, 1994 Decision of the Court of Appeals in CA-
G.R. CV No. 40849 entitled "DKC Holdings Corporation v. Victor U. Bartolome, Et. Al.", 1 affirming in toto the January 4, 1993
Decision of the Regional Trial Court of Valenzuela, Branch 172, 2 which dismissed Civil Case No. 3337-V-90 and ordered
petitioner to pay P30,000.00 as attorney’s fees. The subject of the controversy is a 14,021 square meter parcel of land located
in Malinta, Valenzuela, Metro Manila which was originally owned by private respondent Victor U. Bartolome’s deceased mother,
Encarnacion Bartolome, under Transfer Certificate of Title No. B-37615 of the Register of Deeds of Metro Manila, District III.
This lot was in front of one of the textile plants of petitioner and, as such, was seen by the latter as a potential warehouse site.

On March 16, 1988, petitioner entered into a Contract of Lease with Option to Buy with Encarnacion Bartolome, whereby
petitioner was given the option to lease or lease with purchase the subject land, which option must be exercised within a period
of two years counted from the signing of the Contract. In turn, petitioner undertook to pay P3,000.00 a month as consideration
for the reservation of its option. Within the two-year period, petitioner shall serve formal written notice upon the lessor
Encarnacion Bartolome of its desire to exercise its option. The contract also provided that in case petitioner chose to lease the
property, it may take actual possession of the premises. In such an event, the lease shall be for a period of six years, renewable
for another six years, and the monthly rental fee shall be P15,000.00 for the first six years and P18,000.00 for the next six
years, in case of renewal.

Petitioner regularly paid the monthly P3,000.00 provided for by the Contract to Encarnacion until her death in January 1990.
Thereafter, petitioner coursed its payment to private respondent Victor Bartolome, being the sole heir of Encarnacion. Victor,
however, refused to accept these payments.

Meanwhile, on January 10, 1990, Victor executed an Affidavit of Self-Adjudication over all the properties of Encarnacion,
including the subject lot. Accordingly, respondent Register of Deeds cancelled Transfer Certificate of Title No. B-37615 and
issued Transfer Certificate of Title No. V-14249 in the name of Victor Bartolome.

On March 14, 1990, petitioner served upon Victor, via registered mail, notice that it was exercising its option to lease the
property, tendering the amount of P15,000.00 as rent for the month of March. Again, Victor refused to accept the tendered
rental fee and to surrender possession of the property to petitioner.

Petitioner thus opened Savings Account No. 1-04-02558-I-1 with the China Banking Corporation, Cubao Branch, in the name of
Victor Bartolome and deposited therein the P15,000.00 rental fee for March as well as P6,000.00 reservation fees for the
months of February and March.

Petitioner also tried to register and annotate the Contract on the title of Victor to the property. Although respondent Register of
Deeds accepted the required fees, he nevertheless refused to register or annotate the same or even enter it in the day book or
primary register.

Thus, on April 23, 1990, petitioner filed a Complaint for specific performance and damages against Victor and the Register of
Deeds, 3 docketed as Civil Case No. 3337-V-90 which was raffled off to Branch 171 of the Regional Trial Court of Valenzuela.
Petitioner prayed for the surrender and delivery of possession of the subject land in accordance with the Contract terms; the
surrender of title for registration and annotation thereon of the Contract; and the payment of P500,000.00 as actual damages,
P500,000.00 as moral damages, P500,000.00 as exemplary damages and P300,000.00 as attorney’s fees.

Meanwhile, on May 8, 1990, a Motion for Intervention with Motion to Dismiss 4 was filed by one Andres Lanozo, who claimed
that he was and has been a tenant-tiller of the subject property, which was agricultural riceland, for forty-five years. He
questioned the jurisdiction of the lower court over the property and invoked the Comprehensive Agrarian Reform Law to protect
his rights that would be affected by the dispute between the original parties to the case.

On May 18, 1990, the lower court issued an Order 5 referring the case to the Department of Agrarian Reform for preliminary
determination and certification as to whether it was proper for trial by said court.

On July 4, 1990, the lower court issued another Order 6 referring the case to Branch 172 of the RTC of Valenzuela which was
designated to hear cases involving agrarian land, after the Department of Agrarian Reform issued a letter-certification stating
that referral to it for preliminary determination is no longer required.

On July 16, 1990, the lower court issued an Order denying the Motion to Intervene, 7 holding that Lanozo’s rights may well be
ventilated in another proceeding in due time.

After trial on the merits, the RTC of Valenzuela, branch 172 rendered its Decision on January 4, 1993, dismissing the Complaint
and ordering petitioner to pay Victor P30,000.00 as attorney’s fees. On appeal to the CA, the Decision was affirmed in toto.

Hence, the instant Petition assigning the following errors:

(A)

FIRST ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE PROVISION ON THE NOTICE TO EXERCISE OPTION WAS
NOT TRANSMISSIBLE.

(B)

SECOND ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE NOTICE OF OPTION MUST BE SERVED BY DKC UPON
ENCARNACION BARTOLOME PERSONALLY.

(C)

THIRD ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE CONTRACT WAS ONE-SIDED AND ONEROUS IN FAVOR OF
DKC.

(D)

FOURTH ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE EXISTENCE OF A REGISTERED TENANCY WAS FATAL TO
THE VALIDITY OF THE CONTRACT.

(E)

FIFTH ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PLAINTIFF-APPELLANT WAS LIABLE TO DEFENDANT-APPELLEE
FOR ATTORNEY’S FEES. 8

The issue to be resolved in this case is whether or not the Contract of Lease with Option to Buy entered into by the late
Encarnacion Bartolome with petitioner was terminated upon her death or whether it binds her sole heir, Victor, even after her
demise.

Both the lower court and the Court of Appeals held that the said contract was terminated upon the death of Encarnacion
Bartolome and did not bind Victor because he was not a party thereto.

Article 1311 of the Civil Code provides, as follows-

"ARTICLE 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and
obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is
not liable beyond the value of the property he received from the decedent.

x       x       x."

The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-in-interest except when the
rights and obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of law.

In the case at bar, there is neither contractual stipulation nor legal provision making the rights and obligations under the
contract intransmissible. More importantly, the nature of the rights and obligations therein are, by their nature, transmissible.

The nature of intransmissible rights as explained by Arturo Tolentino, an eminent civilist, is as follows:

"Among contracts which are intransmissible are those which are purely personal, either by provision of law, such as in cases of
partnerships and agency, or by the very nature of the obligations arising therefrom, such as those requiring special personal
qualifications of the obligor. It may also be stated that contracts for the payment of money debts are not transmitted to the
heirs of a party, but constitute a charge against his estate. Thus, where the client in a contract for professional services of a
lawyer died, leaving minor heirs, and the lawyer, instead of presenting his claim for professional services under the contract to
the probate court, substituted the minors as parties for his client, it was held that the contract could not be enforced against the
minors; the lawyer was limited to a recovery on the basis of quantum meruit." 9

In American jurisprudence," (W)here acts stipulated in a contract require the exercise of special knowledge, genius, skill, taste,
ability, experience, judgment, discretion, integrity, or other personal qualification of one or both parties, the agreement is of a
personal nature, and terminates on the death of the party who is required to render such service." 10

It has also been held that a good measure for determining whether a contract terminates upon the death of one of the parties
is whether it is of such a character that it may be performed by the promissor’s personal representative. Contracts to perform
personal acts which cannot be as well performed by others are discharged by the death of the promissor. Conversely, where the
service or act is of such a character that it may as well be performed by another, or where the contract, by its terms, shows that
performance by others was contemplated, death does not terminate the contract or excuse nonperformance. 11

In the case at bar, there is no personal act required from the late Encarnacion Bartolome. Rather, the obligation of Encarnacion
in the contract to deliver possession of the subject property to petitioner upon the exercise by the latter of its option to lease
the same may very well be performed by her heir Victor.

As early as 1903, it was held that" (H)e who contracts does so for himself and his heirs." 12 In 1952, it was ruled that if the
predecessor was duty-bound to reconvey land to another, and at his death the reconveyance had not been made, the heirs can
be compelled to execute the proper deed for reconveyance. This was grounded upon the principle that heirs cannot escape the
legal consequence of a transaction entered into by their predecessor-in-interest because they have inherited the property
subject to the liability affecting their common ancestor. 13

It is futile for Victor to insist that he is not a party to the contract because of the clear provision of Article 1311 of the Civil Code.
Indeed, being an heir of Encarnacion, there is privity of interest between him and his deceased mother. He only succeeds to
what rights his mother had and what is valid and binding against her is also valid and binding as against him. 14 This is clear
from Parañaque Kings Enterprises v. Court of Appeals, 15 where this Court rejected a similar defense —

With respect to the contention of respondent Raymundo that he is not privy to the lease contract, not being the lessor nor the
lessee referred to therein, he could thus not have violated its provisions, but he is nevertheless a proper party. Clearly, he
stepped into the shoes of the owner-lessor of the land as, by virtue of his purchase, he assumed all the obligations of the lessor
under the lease contract. Moreover, he received benefits in the form of rental payments. Furthermore, the complaint, as well as
the petition, prayed for the annulment of the sale of the properties to him. Both pleadings also alleged collusion between him
and respondent Santos which defeated the exercise by petitioner of its right of first refusal.

In order then to accord complete relief to petitioner, respondent Raymundo was a necessary, if not indispensable, party to the
case. A favorable judgment for the petitioner will necessarily affect the rights of respondent Raymundo as the buyer of the
property over which petitioner would like to assert its right of first option to buy.

In the case at bar, the subject matter of the contract is likewise a lease, which is a property right. The death of a party does not
excuse nonperformance of a contract which involves a property right, and the rights and obligations thereunder pass to the
personal representatives of the deceased. Similarly, nonperformance is not excused by the death of the party when the other
party has a property interest in the subject matter of the contract. 16

Under both Article 1311 of the Civil Code and jurisprudence, therefore, Victor is bound by the subject Contract of Lease with
Option to Buy.

That being resolved, we now rule on the issue of whether petitioner had complied with its obligations under the contract and
with the requisites to exercise its option. The payment by petitioner of the reservation fees during the two-year period within
which it had the option to lease or purchase the property is not disputed. In fact, the payment of such reservation fees, except
those for February and March, 1990 were admitted by Victor. 17 This is clear from the transcripts, to wit —

"ATTY. MOJADO:

One request, Your Honor. The last payment which was allegedly made in January 1990 just indicate in that stipulation that it
was issued November of 1989 and postdated January 1990 and then we will admit all.

COURT:
All reservation fee?

ATTY. MOJADO:

Yes, Your Honor.

COURT:
All as part of the lease?

ATTY. MOJADO:

Reservation fee, Your Honor. There was no payment with respect to payment of rentals." 18

Petitioner also paid the P15,000.00 monthly rental fee on the subject property by depositing the same in China Bank Savings
Account No. 1-04-02558-I-1, in the name of Victor as the sole heir of Encarnacion Bartolome, 19 for the months of March to
July 30, 1990, or a total of five (5) months, despite the refusal of Victor to turn over the subject property. 20

Likewise, petitioner complied with its duty to inform the other party of its intention to exercise its option to lease through its
letter dated March 12, 1990, 21 well within the two-year period for it to exercise its option. Considering that at that time
Encarnacion Bartolome had already passed away, it was legitimate for petitioner to have addressed its letter to her heir.

It appears, therefore, that the exercise by petitioner of its option to lease the subject property was made in accordance with the
contractual provisions. Concomitantly, private respondent Victor Bartolome has the obligation to surrender possession of and
lease the premises to petitioner for a period of six (6) years, pursuant to the Contract of Lease with Option to Buy.

Coming now to the issue of tenancy, we find that this is not for this Court to pass upon in the present petition. We note that the
Motion to Intervene and to Dismiss of the alleged tenant, Andres Lanozo, was denied by the lower court and that such denial
was never made the subject of an appeal. As the lower court stated in its Order, the alleged right of the tenant may well be
ventilated in another proceeding in due time.

WHEREFORE, in view of the foregoing, the instant Petition for Review is GRANTED. The Decision of the Court of Appeals in CA-
G.R. CV No. 40849 and that of the Regional Trial Court of Valenzuela in Civil Case No. 3337-V-90 are both SET ASIDE and a new
one rendered ordering private respondent Victor Bartolome to:

(a) surrender and deliver possession of that parcel of land covered by Transfer Certificate of Title No. V-14249 by way of lease
to petitioner and to perform all obligations of his predecessor-in-interest, Encarnacion Bartolome, under the subject Contract of
Lease with Option to Buy;

(b) surrender and deliver his copy of Transfer Certificate of Title No. V-14249 to respondent Register of Deeds for registration
and annotation thereon of the subject Contract of Lease with Option to Buy;

(c) pay costs of suit.

Respondent Register of Deeds is, accordingly, ordered to register and annotate the subject Contract of Lease with Option to Buy
at the back of Transfer Certificate of Title No. V-14249 upon submission by petitioner of a copy thereof to his office.

SO ORDERED.
 FIRST DIVISION

G.R. No. 126334      November 23, 2001

EMILIO EMNACE, petitioner,
vs.
COURT OF APPEALS, ESTATE OF VICENTE TABANAO, SHERWIN TABANAO, VICENTE WILLIAM TABANAO,
JANETTE TABANAO DEPOSOY, VICENTA MAY TABANAO VARELA, ROSELA TABANAO and VINCENT
TABANAO, respondents.

YNARES-SANTIAGO, J.:

Petitioner Emilio Emnace, Vicente Tabanao and Jacinto Divinagracia were partners in a business concern known as Ma. Nelma
Fishing Industry. Sometime in January of 1986, they decided to dissolve their partnership and executed an agreement of
partition and distribution of the partnership properties among them, consequent to Jacinto Divinagracia's withdrawal from the
partnership.1 Among the assets to be distributed were five (5) fishing boats, six (6) vehicles, two (2) parcels of land located at
Sto. Niño and Talisay, Negros Occidental, and cash deposits in the local branches of the Bank of the Philippine Islands and
Prudential Bank.

Throughout the existence of the partnership, and even after Vicente Tabanao's untimely demise in 1994, petitioner failed to
submit to Tabanao's heirs any statement of assets and liabilities of the partnership, and to render an accounting of the
partnership's finances. Petitioner also reneged on his promise to turn over to Tabanao's heirs the deceased's 1/3 share in the
total assets of the partnership, amounting to P30,000,000.00, or the sum of P10,000,000.00, despite formal demand for
payment thereof.2

Consequently, Tabanao' s heirs, respondents herein, filed against petitioner an action for accounting, payment of shares,
division of assets and damages. 3 In their complaint, respondents prayed as follows:

1. Defendant be ordered to render the proper accounting of all the assets and liabilities of the partnership at bar; and

2. After due notice and hearing defendant be ordered to pay/remit/deliver/surrender/yield to the plaintiffs the
following:

A. No less than One Third (1/3) of the assets, properties, dividends, cash, land(s), fishing vessels, trucks,
motor vehicles, and other forms and substance of treasures which belong and/or should belong, had accrued
and/or must accrue to the partnership;

B. No less than Two Hundred Thousand Pesos (P200,000.00) as moral damages;

C. Attorney's fees equivalent to Thirty Percent (30%) of the entire share/amount/award which the Honorable
Court may resolve the plaintiffs as entitled to plus P1,000.00 for every appearance in court. 4

Petitioner filed a motion to dismiss the complaint on the grounds of improper venue, lack of jurisdiction over the nature of the
action or suit, and lack of capacity of the estate of Tabanao to sue. 5 On August 30, 1994, the trial court denied the motion to
dismiss. It held that venue was properly laid because, while realties were involved, the action was directed against a particular
person on the basis of his personal liability; hence, the action is not only a personal action but also an action in personam.  As
regards petitioner's argument of lack of jurisdiction over the action because the prescribed docket fee was not paid considering
the huge amount involved in the claim, the trial court noted that a request for accounting was made in order that the exact
value of the partnership may be ascertained and, thus, the correct docket fee may be paid. Finally, the trial court held that the
heirs of Tabanao had aright to sue in their own names, in view of the provision of Article 777 of the Civil Code, which states that
the rights to the succession are transmitted from the moment of the death of the decedent. 6

The following day, respondents filed an amended complaint, 7 incorporating the additional prayer that petitioner be ordered to
"sell all (the partnership's) assets and thereafter pay/remit/deliver/surrender/yield to the plaintiffs" their corresponding share in
the proceeds thereof. In due time, petitioner filed a manifestation and motion to dismiss, 8 arguing that the trial court did not
acquire jurisdiction over the case due to the plaintiffs' failure to pay the proper docket fees. Further, in a supplement to his
motion to dismiss,9 petitioner also raised prescription as an additional ground warranting the outright dismissal of the complaint.

On June 15, 1995, the trial court issued an Order, 10 denying the motion to dismiss inasmuch as the grounds raised therein were
basically the same as the earlier motion to dismiss which has been denied. Anent the issue of prescription, the trial court ruled
that prescription begins to run only upon the dissolution of the partnership when the final accounting is done. Hence,
prescription has not set in the absence of a final accounting. Moreover, an action based on a written contract prescribes in ten
years from the time the right of action accrues.

Petitioner filed a petition for certiorari before the Court of Appeals, 11 raising the following issues:

I.       Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in taking
cognizance of a case despite the failure to pay the required docket fee;
 II.      Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in insisting to try
the case which involve (sic) a parcel of land situated outside of its territorial jurisdiction;

III.     Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in allowing the
estate of the deceased to appear as party plaintiff, when there is no intestate case and filed by one who was never
appointed by the court as administratrix of the estates; and

IV.     Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in not dismissing
the case on the ground of prescription.

On August 8, 1996, the Court of Appeals rendered the assailed decision, 12 dismissing the petition for certiorari, upon a finding
that no grave abuse of discretion amounting to lack or excess of jurisdiction was committed by the trial court in issuing the
questioned orders denying petitioner's motions to dismiss.

Not satisfied, petitioner filed the instant petition for review, raising the same issues resolved by the Court of Appeals, namely:

I.       Failure to pay the proper docket fee;

II.      Parcel of land subject of the case pending before the trial court is outside the said court's territorial jurisdiction;

III.     Lack of capacity to sue on the part of plaintiff heirs of Vicente Tabanao; and

IV.     Prescription of the plaintiff heirs' cause of action.

It can be readily seen that respondents' primary and ultimate objective in instituting the action below was to recover the
decedent's 1/3 share in the partnership' s assets. While they ask for an accounting of the partnership' s assets and finances,
what they are actually asking is for the trial court to compel petitioner to pay and turn over their share, or the equivalent value
thereof, from the proceeds of the sale of the partnership assets. They also assert that until and unless a proper accounting is
done, the exact value of the partnership' s assets, as well as their corresponding share therein, cannot be ascertained.
Consequently, they feel justified in not having paid the commensurate docket fee as required by the Rules of Court. 1âwphi1.nêt

We do not agree. The trial court does not have to employ guesswork in ascertaining the estimated value of the partnership's
assets, for respondents themselves voluntarily pegged the worth thereof at Thirty Million Pesos (P30,000,000.00). Hence, this
case is one which is really not beyond pecuniary estimation, but rather partakes of the nature of a simple collection case where
the value of the subject assets or amount demanded is pecuniarily determinable. 13 While it is true that the exact value of the
partnership's total assets cannot be shown with certainty at the time of filing, respondents can and must ascertain, through
informed and practical estimation, the amount they expect to collect from the partnership, particularly from petitioner, in order
to determine the proper amount of docket and other fees. 14 It is thus imperative for respondents to pay the corresponding
docket fees in order that the trial court may acquire jurisdiction over the action. 15

Nevertheless, unlike in the case of Manchester Development Corp.  v. Court of Appeals,16  where there was clearly an effort to
defraud the government in avoiding to pay the correct docket fees, we see no attempt to cheat the courts on the part of
respondents. In fact, the lower courts have noted their expressed desire to remit to the court "any payable balance or lien on
whatever award which the Honorable Court may grant them in this case should there be any deficiency in the payment of the
docket fees to be computed by the Clerk of Court."17 There is evident willingness to pay, and the fact that the docket fee paid so
far is inadequate is not an indication that they are trying to avoid paying the required amount, but may simply be due to an
inability to pay at the time of filing. This consideration may have moved the trial court and the Court of Appeals to declare that
the unpaid docket fees shall be considered a lien on the judgment award.

Petitioner, however, argues that the trial court and the Court of Appeals erred in condoning the non-payment of the proper legal
fees and in allowing the same to become a lien on the monetary or property judgment that may be rendered in favor of
respondents. There is merit in petitioner's assertion. The third paragraph of Section 16, Rule 141 of the Rules of Court states
that:

The legal fees shall be a lien on the monetary or property judgment in favor of the pauper-litigant.

Respondents cannot invoke the above provision in their favor because it specifically applies to pauper-litigants. Nowhere in the
records does it appear that respondents are litigating as paupers, and as such are exempted from the payment of court fees. 18

The rule applicable to the case at bar is Section 5(a) of Rule 141 of the Rules of Court, which defines the two kinds of claims as:
(1) those which are immediately ascertainable; and (2) those which cannot be immediately ascertained as to the exact amount.
This second class of claims, where the exact amount still has to be finally determined by the courts based on evidence
presented, falls squarely under the third paragraph of said Section 5(a), which provides:

In case the value of the property or estate or the sum claimed is less or more in accordance with the appraisal of the
court, the difference of fee shall be refunded or paid as the case may be.  (Underscoring ours)

In Pilipinas Shell Petroleum Corporation v. Court of Appeals, 19 this Court pronounced that the above-quoted provision "clearly
contemplates an Initial payment of the filing fees corresponding to the estimated amount of the claim subject to adjustment as
to what later may be proved."20 Moreover, we reiterated therein the principle that the payment of filing fees cannot be made
contingent or dependent on the result of the case. Thus, an initial payment of the docket fees based on an estimated amount
must be paid simultaneous with the filing of the complaint. Otherwise, the court would stand to lose the filing fees should the
judgment later turn out to be adverse to any claim of the respondent heirs.

The matter of payment of docket fees is not a mere triviality. These fees are necessary to defray court expenses in the handling
of cases. Consequently, in order to avoid tremendous losses to the judiciary, and to the government as well, the payment of
docket fees cannot be made dependent on the outcome of the case, except when the claimant is a pauper-litigant.

Applied to the instant case, respondents have a specific claim - 1/3 of the value of all the partnership assets - but they did not
allege a specific amount. They did, however, estimate the partnership's total assets to be worth Thirty Million Pesos
(P30,000,000.00), in a letter 21 addressed to petitioner. Respondents cannot now say that they are unable to make an estimate,
for the said letter and the admissions therein form part of the records of this case. They cannot avoid paying the initial docket
fees by conveniently omitting the said amount in their amended complaint. This estimate can be made the basis for the initial
docket fees that respondents should pay. Even if it were later established that the amount proved was less or more than the
amount alleged or estimated, Rule 141, Section 5(a) of the Rules of Court specifically provides that the court may refund the
'excess or exact additional fees should the initial payment be insufficient. It is clear that it is only the difference between the
amount finally awarded and the fees paid upon filing of this complaint that is subject to adjustment and which may be subjected
to alien.

In the oft-quoted case of Sun Insurance Office, Ltd. v. Hon. Maximiano Asuncion, 22  this Court held that when the specific claim
"has been left for the determination by the court, the additional filing fee therefor shall constitute a lien on the judgment and it
shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the
additional fee." Clearly, the rules and jurisprudence contemplate the initial payment of filing and docket fees based on the
estimated claims of the plaintiff, and it is only when there is a deficiency that a lien may be constituted on the judgment award
until such additional fee is collected.

Based on the foregoing, the trial court erred in not dismissing the complaint outright despite their failure to pay the proper
docket fees. Nevertheless, as in other procedural rules, it may be liberally construed in certain cases if only to secure a just and
speedy disposition of an action. While the rule is that the payment of the docket fee in the proper amount should be adhered to,
there are certain exceptions which must be strictly construed. 23

In recent rulings, this Court has relaxed the strict adherence to the Manchester  doctrine, allowing the plaintiff to pay the proper
docket fees within a reasonable time before the expiration of the applicable prescriptive or reglementary period. 24

In the recent case of National Steel Corp. v. Court of Appeals, 25  this Court held that:

The court acquires jurisdiction over the action if the filing of the initiatory pleading is accompanied by the payment of
the requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of the time of full payment of
the fees within such reasonable time as the court may grant, unless, of course, prescription has set in the meantime.

It does not follow, however, that the trial court should have dismissed the complaint for failure of private respondent to
pay the correct amount of docket fees. Although the payment of the proper docket fees is a jurisdictional requirement,
the trial court may allow the plaintiff in an action to pay the same within a reasonable time before the expiration of the
applicable prescriptive or reglementary period. If the plaintiff fails to comply within this requirement, the defendant
should timely raise the issue of jurisdiction or else he would be considered in estoppel. In the latter case, the balance
between the appropriate docket fees and the amount actually paid by the plaintiff will be considered a lien or any
award he may obtain in his favor. (Underscoring ours)

Accordingly, the trial court in the case at bar should determine the proper docket fee based on the estimated amount that
respondents seek to collect from petitioner, and direct them to pay the same within a reasonable time, provided the applicable
prescriptive or reglementary period has not yet expired, Failure to comply therewith, and upon motion by petitioner, the
immediate dismissal of the complaint shall issue on jurisdictional grounds.

On the matter of improper venue, we find no error on the part of the trial court and the Court of Appeals in holding that the
case below is a personal action which, under the Rules, may be commenced and tried where the defendant resides or may be
found, or where the plaintiffs reside, at the election of the latter. 26

Petitioner, however, insists that venue was improperly laid since the action is a real action involving a parcel of land that is
located outside the territorial jurisdiction of the court a quo.  This contention is not well-taken. The records indubitably show that
respondents are asking that the assets of the partnership be accounted for, sold and distributed according to the agreement of
the partners. The fact that two of the assets of the partnership are parcels of land does not materially change the nature of the
action. It is an action in personam  because it is an action against a person, namely, petitioner, on the basis of his personal
liability. It is not an action in rem  where the action is against the thing itself instead of against the person. 27 Furthermore, there
is no showing that the parcels of land involved in this case are being disputed. In fact, it is only incidental that part of the assets
of the partnership under liquidation happen to be parcels of land.

The time-tested case of Claridades v. Mercader, et al.,28  settled this issue thus:

The fact that plaintiff prays for the sale of the assets of the partnership, including the fishpond in question, did not
change the nature or character of the action, such sale being merely a necessary incident of the liquidation of the
partnership, which should precede and/or is part of its process of dissolution.
The action filed by respondents not only seeks redress against petitioner. It also seeks the enforcement of, and petitioner's
compliance with, the contract that the partners executed to formalize the partnership's dissolution, as well as to implement the
liquidation and partition of the partnership's assets. Clearly, it is a personal action that, in effect, claims a debt from petitioner
and seeks the performance of a personal duty on his part. 29 In fine, respondents' complaint seeking the liquidation and partition
of the assets of the partnership with damages is a personal action which may be filed in the proper court where any of the
parties reside.30 Besides, venue has nothing to do with jurisdiction for venue touches more upon the substance or merits of the
case.31 As it is, venue in this case was properly laid and the trial court correctly ruled so.

On the third issue, petitioner asserts that the surviving spouse of Vicente Tabanao has no legal capacity to sue since she was
never appointed as administratrix or executrix of his estate. Petitioner's objection in this regard is misplaced. The surviving
spouse does not need to be appointed as executrix or administratrix of the estate before she can file the action. She and her
children are complainants in their own right as successors of Vicente Tabanao. From the very moment of Vicente Tabanao' s
death, his rights insofar as the partnership was concerned were transmitted to his heirs, for rights to the succession are
transmitted from the moment of death of the decedent.32

Whatever claims and rights Vicente Tabanao had against the partnership and petitioner were transmitted to respondents by
operation of law, more particularly by succession, which is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance of a person are transmitted. 33 Moreover, respondents became owners of
their respective hereditary shares from the moment Vicente Tabanao died. 34

A prior settlement of the estate, or even the appointment of Salvacion Tabanao as executrix or administratrix, is not necessary
for any of the heirs to acquire legal capacity to sue. As successors who stepped into the shoes of their decedent upon his death,
they can commence any action originally pertaining to the decedent. 35 From the moment of his death, his rights as a partner
and to demand fulfillment of petitioner's obligations as outlined in their dissolution agreement were transmitted to respondents.
They, therefore, had the capacity to sue and seek the court's intervention to compel petitioner to fulfill his obligations.

Finally, petitioner contends that the trial court should have dismissed the complaint on the ground of prescription, arguing that
respondents' action prescribed four (4) years after it accrued in 1986. The trial court and the Court of Appeals gave scant
consideration to petitioner's hollow arguments, and rightly so.

The three (3) final stages of a partnership are: (1) dissolution; (2) winding-up; and (3) termination. 36 The partnership, although
dissolved, continues to exist and its legal personality is retained, at which time it completes the winding up of its affairs,
including the partitioning and distribution of the net partnership assets to the partners. 37 For as long as the partnership exists,
any of the partners may demand an accounting of the partnership's business. Prescription of the said right starts to run only
upon the dissolution of the partnership when the final accounting is done. 38

Contrary to petitioner's protestations that respondents' right to inquire into the business affairs of the partnership accrued in
1986, prescribing four (4) years thereafter, prescription had not even begun to run in the absence of a final accounting. Article
1842 of the Civil Code provides:

The right to an account of his interest shall accrue to any partner, or his legal representative as against the winding up
partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the
absence of any agreement to the contrary.

Applied in relation to Articles 1807 and 1809, which also deal with the duty to account, the above-cited provision states that the
right to demand an accounting accrues at the date of dissolution in the absence of any agreement to the contrary. When a final
accounting is made, it is only then that prescription begins to run. In the case at bar, no final accounting has been made, and
that is precisely what respondents are seeking in their action before the trial court, since petitioner has failed or refused to
render an accounting of the partnership's business and assets. Hence, the said action is not barred by prescription.

In fine, the trial court neither erred nor abused its discretion when it denied petitioner's motions to dismiss. Likewise, the Court
of Appeals did not commit reversible error in upholding the trial court's orders. Precious time has been lost just to settle this
preliminary issue, with petitioner resurrecting the very same arguments from the trial court all the way up to the Supreme
Court. The litigation of the merits and substantial issues of this controversy is now long overdue and must proceed without
further delay.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED for lack of merit, and the case is REMANDED to the
Regional Trial Court of Cadiz City, Branch 60, which is ORDERED to determine the proper docket fee based on the estimated
amount that plaintiffs therein seek to collect, and direct said plaintiffs to pay the same within a reasonable time, provided the
applicable prescriptive or reglementary period has not yet expired. Thereafter, the trial court is ORDERED to conduct the
appropriate proceedings in Civil Case No. 416-C.

Costs against petitioner

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 184148               June 9, 2014

NORA B. CALALANG-PARULAN and ELVIRA B. CALALANG, Petitioners,

vs.
ROSARIO CALALANG-GARCIA, LEONORA CALALANG-SABILE, and CARLITO S. CALALANG, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari assailing the Decision 1 dated December 21, 2007 and Resolution2 dated July 25,
2008 of the Thirteenth Division of the Court of Appeals (CA) in CA-G.R. CV No. 72531. The CA modified the Decision 3 dated July
10, 2001 of the Regional Trial Court (RTC), Branch 21, of Malolos, Bulacan, in Civil Case No. 370-M-91.

The facts, as culled from the records, follow:

In a Complaint4 for Annulment of Sale and Reconveyance of Property filed with the RTC of Malolos, Bulacan on June 10, 1991,
the respondents Rosario Calalang-Garcia, Leonora Calalang-Sabile, and Carlito S. Calalang asserted their ownership over a
certain parcel of land against the petitioners Nora B. Calalang-Parulan and Elvira B. Calalang. The said lot with an area of 1,266
square meters and specifically identified as Lot 1132, Cad. 333, Bigaa Cadastre situated in Brgy. Burol 2nd, Municipality of
Balagtas, Province of Bulacan, was allegedly acquired by the respondents from their mother Encarnacion Silverio, through
succession as the latter’s compulsory heirs.

According to the respondents, their father, Pedro Calalang contracted two marriages during his lifetime. The first marriage was
with their mother Encarnacion Silverio. During the subsistence of this marriage, their parents acquired the above-mentioned
parcel of land from their maternal grandmother Francisca Silverio. Despite enjoying continuous possession of the land, however,
their parents failed to register the same. On June 7, 1942, the first marriage was dissolved with the death of Encarnacion
Silverio.

On November 6, 1967, Pedro Calalang entered into a second marriage with Elvira B. Calalang who then gave birth to Nora B.
Calalang-Parulan and Rolando Calalang. According to the respondents, it was only during this time that Pedro Calalang filed an
application for free patent over the parcel of land with the Bureau of Lands. Pedro Calalang committed fraud in such application
by claiming sole and exclusive ownership over the land since 1935 and concealing the fact that he had three children with his
first spouse. As a result, on September 22, 1974, the Register of Deeds of Bulacan issued Original Certificate of Title (OCT) No.
P-28715 in favor of Pedro Calalang only.

On February 17, 1984, Pedro Calalang sold the said parcel of land to Nora B. Calalang-Parulan as evidenced by a Deed of
Sale6 executed by both Pedro Calalang and Elvira B. Calalang. Accordingly, the Register of Deeds of Bulacan cancelled OCT No.
P-2871 and issued Transfer Certificate of Title (TCT) No. 283321 in the name of Nora B. Calalang-Parulan. On December 27,
1989,7 Pedro Calalang died.

The respondents assailed the validity of TCT No. 283321 on two grounds. First, the respondents argued that the sale of the land
was void because Pedro Calalang failed to obtain the consent of the respondents who were co-owners of the same. As
compulsory heirs upon the death of Encarnacion Silverio, the respondents claimed that they acquired successional rights over
the land. Thus, in alienating the land without their consent, Pedro Calalang allegedly deprived them of their pro indiviso share in
the property. Second, the respondents claimed that the sale was absolutely simulated as Nora B. Calalang-Parulan did not have
the capacity to pay for the consideration stated in the Deed of Sale.

In their Answer,8 the petitioners argued that the parcel of land was acquired during the second marriage of Pedro Calalang with
Elvira B. Calalang. They stressed that OCT No. P-2871 itself stated that it was issued in the name of "Pedro Calalang, married to
Elvira Berba [Calalang]." Thus, the property belonged to the conjugal partnership of the spouses Pedro Calalang and Elvira B.
Calalang. The petitioners likewise denied the allegation that the sale of the land was absolutely simulated as Nora B. Calalang-
Parulan was gainfully employed in Spain at the time of the sale. Moreover, they alleged that the respondents did not have a
valid cause of action against them and that their cause of action, if any, was already barred by laches, estoppel and
prescription. By way of counterclaim, the petitioners also sought the payment to them of moral and exemplary damages plus
costs of suit for the filing of the clearly unfounded suit.

On July 10, 2001, the trial court rendered decision in favor of the respondents. The dispositive portion of the RTC decision reads
as follows:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants in the following manner:

1. Ordering the defendants to reconvey in favor of the plaintiffs, their rightful share to three-fourth (3/4) of one-half
(1/2) or a total of 474.75 square meters at 158.25 square meters for each of the three plaintiffs, namely: Rosario,
 Leonora, and Juanito all surname[d] Calalang, of the real property covered by TCT No. 283321 of the Registry of Deeds
of Bulacan corresponding to their shares in the conjugal estate of the late Encarnacion S. Calalang [sic];

2. Ordering defendants to pay plaintiffs the amount of ₱50,000.00 for moral damages; ₱50,000.00 for attorney’s fees
and another ₱50,000.00 for litigation expenses.

3. Dismissing the defendants’ counterclaims.

With costs against the defendants.

SO ORDERED.9

The trial court declared that the parcel of land was jointly acquired by the spouses Pedro Calalang and Encarnacion Silverio from
the parents of the latter. Thus, it was part of the conjugal property of the first marriage of Pedro Calalang. When this marriage
was dissolved upon the death of Encarnacion Silverio on June 7, 1942,the corresponding shares to the disputed property were
acquired by the heirs of the decedent according to the laws of succession. In particular, the trial court allocated half of the
disputed property to Pedro Calalang as his share in the conjugal partnership and allocated the other half to the three
respondents and Pedro Calalang to be divided equally among them. The trial court then ordered all of Pedro’s share to be given
to Nora B. Calalang-Parulan on account of the sale. The trial court also ruled that because the application for free patent filed by
Pedro Calalang was attended by fraud and misrepresentation, Pedro Calalang should be considered as a trustee of an implied
trust.

Aggrieved by the adverse ruling, the petitioners appealed the case to the CA which rendered the assailed Decision on December
21, 2007. The dispositive portion of the CA decision reads,

WHEREFORE, in light of the foregoing premises, the Decision dated July 10, 2001of the Regional Trial Court of Malolos, Bulacan
is hereby MODIFIED to read as follows:

"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, and against the defendants in the following manner:

1. Ordering the defendants to reconvey in favor of the plaintiffs, their rightful share to the property owned by their
common father Pedro Calalang, equivalent to one half(1/2) portion of the whole area or 633 square meters to be
divided equally by the three plaintiffs, namely:

Rosario, Leonora and Carlito, all surnamed Calalang, each getting an area of 211 square meters of the
property covered by TCT No. 2883321 of the Registry of Deeds of Bulacan corresponding to their shares in the
property of their late father Pedro Calalang;

2. Ordering defendants to pay plaintiffs the amount of ₱50,000.00 for moral damages; ₱50,000.00 for attorney’s fees
and another ₱50,000.00 for litigation expenses.

3. Dismissing the defendants’ counterclaims.

With costs against the defendants.

SO ORDERED.

SO ORDERED.10

The CA reversed the factual findings of the trial court and held that Pedro Calalang was the sole and exclusive owner of the
subject parcel of land. Firstly, it held that there was insufficient evidence to prove that the disputed property was indeed jointly
acquired from the parents of Encarnacion Silverio during the first marriage. Secondly, the CA upheld the indefeasibility of OCT
No. P-2871. It held that although the free patent was issued in the name of "Pedro Calalang, married to Elvira Berba [Calalang]"
this phrase was merely descriptive of the civil status of Pedro Calalang at the time of the registration of the disputed property.
Thus, contrary to the ruling of the trial court, upon the death of Encarnacion Silverio on June 7, 1942, the respondents did not
acquire any successional rights to the parcel of land which was exclusively owned by Pedro Calalang. However, applying the
rules of succession, Pedro’s heirs namely, Rosario Calalang-Garcia, Leonora Calalang-Sabile, Carlito Calalang, Nora B. Calalang-
Parulan, Elvira B. Calalang, and Rolando Calalang, succeeded Pedro to the land in equal shares upon his death. Thus, the CA
ordered the petitioners to reconvey in favor of the respondents their rightful shares to the land. The CA ruled that the sale by
Pedro Calalang to Nora B. Calalang-Parulan was fraudulent and fictitious as the vendee was in bad faith and the respondents
were unlawfully deprived of their pro indiviso shares over the disputed property. As regards the issue of prescription, the CA
ruled that the prescriptive period for reconveyance of fraudulently registered real property is ten years. Since the property was
registered in the name of Nora in1984 and the action for reconveyance was filed in 1991, the action has not yet prescribed.

On January 23, 2008, petitioners filed their Motion for Reconsideration. The CA, however, denied their motion in its Resolution
dated July 25, 2008.

Hence, this petition raising the sole issue:

Whether or not the court a quo gravely erred in rendering its December 21, 2007 Decision modifying the July 10, 2001 Decision
of the trial court, and in issuing its July 25, 2008 Resolution denying petitioners’ Motion for Reconsideration dated January 23,
2008.11

Essentially, the only issue in this case is whether Pedro Calalang was the exclusive owner of the disputed property prior to its
transfer to his daughter Nora B. Calalang-Parulan.

The petitioners argue that the disputed property belonged to the conjugal partnership of the second marriage of Pedro Calalang
with Elvira B. Calalang as evidenced by OCT No. P-2871 which was issued to Pedro Calalang during the subsistence of his
marriage to Elvira B. Calalang. On the other hand, the respondents claim that the disputed property was transferred by their
maternal grandmother, Francisca Silverio, to their parents, Pedro Calalang and Encarnacion Silverio, during the latter’s marriage.
Thus, the respondents argue that it belonged to the conjugal partnership of the first marriage of Pedro Calalang with
Encarnacion Silverio.

The petition is meritorious.

Preliminarily, we note that the resolution of the issue in this case requires a reevaluation of the probative value of the evidence
presented by the parties in order to trace the title of the disputed property. What is involved is indeed a question of fact which
is generally beyond the jurisdiction of this Court to resolve in a petition for review on certiorari. 12 However, a recognized
exception to the rule is when the RTC and CA have conflicting findings of fact as in this case. 13 Here, while the trial court ruled
that the disputed property belonged to the conjugal partnership of the first marriage of Pedro Calalang with Encarnacion
Silverio, the court a quo declared that the evidence proved the sole and exclusive ownership of the disputed property of Pedro
Calalang.

We have carefully reviewed the records of this case and sustain the finding of the CA that Pedro Calalang is the sole and
exclusive owner of the disputed property.

The trial court ruled that the respondents were able to establish that Lot 1132, Cad. 333 originated from the parents of
Encarnacion, and therefore said property "either became property of Encarnacion in her own right or jointly with her husband
Pedro Calalang in 1936." In so ruling, the trial court relied on the testimony of Rosario Calalang-Garcia that her parents built a
nipa house on the subject lot and lived there before and after World War II. The trial court further noted that Rosario’s
testimony was corroborated by her cousin and adjacent neighbor Manolo Calalang. 14

However, as correctly pointed out by the CA, a close perusal of the records of this case would show that the records are bereft
of any concrete proof to show that the subject property indeed belonged to respondents’ maternal grandparents. The evidence
respondents adduced merely consisted of testimonial evidence such as the declaration of Rosario Calalang-Garcia that they have
been staying on the property as far as she can remember and that the property was acquired by her parents through purchase
from her maternal grandparents. However, she was unable to produce any document to evidence the said sale, nor was she
able to present any documentary evidence such as the tax declaration issued in the name of either of her parents. Moreover, we
note that the free patent was issued solely in the name of Pedro Calalang and that it was issued more than 30 years after the
death of Encarnacion and the dissolution of the conjugal partnership of gains of the first marriage. Thus, we cannot subscribe to
respondents’ submission that the subject property originally belonged to the parents of Encarnacion and was acquired by Pedro
Calalang and Encarnacion.

We likewise cannot sustain the argument of the petitioners that the disputed property belongs to the conjugal partnership of the
second marriage of Pedro Calalang with Elvira B. Calalang on the ground that the title was issued in the name of "Pedro
Calalang, married to Elvira Berba [Calalang]."

The contents of a certificate of title are enumerated by Section 45 of Presidential Decree No. 1529, otherwise known as the
Property Registration Decree:

SEC. 45. Statement of personal circumstances in the certificate. – Every certificate of title shall set forth the full names of all
persons whose interests make up the full ownership in the whole land, including their civil status, and the names of their
respective spouses, if married, as well as their citizenship, residence and postal address. If the property covered belongs to the
conjugal partnership, it shall be issued in the names of both spouses. 1âwphi1

A plain reading of the above provision would clearly reveal that the phrase "Pedro Calalang, married to Elvira Berba [Calalang]"
merely describes the civil status and identifies the spouse of the registered owner Pedro Calalang. Evidently, this does not mean
that the property is conjugal. In Litam v. Rivera, 15 we declared:

Further strong proofs that the properties in question are the paraphernal properties of Marcosa Rivera, are the very Torrens
Titles covering said properties. All the said properties are registered in the name of "Marcosa Rivera, married to Rafael Litam."
This circumstance indicates that the properties in question belong to the registered owner, Marcosa Rivera, as her paraphernal
properties, for if they were conjugal, the titles covering the same should have been issued in the names of Rafael Litam and
Marcosa Rivera. The words "married to Rafael Litam" written after the name of Marcosa Rivera, in each of the above mentioned
titles are merely descriptive of the civil status of Marcosa Rivera, the registered owner of the properties covered by said titles.

It must likewise be noted that in his application for free patent, 16 applicant Pedro Calalang averred that the land was first
occupied and cultivated by him since 1935 and that he had planted mango trees, coconut plants, caimito trees, banana plants
and seasonal crops and built his house on the subject lot. But he applied for free patent only in 1974 and was issued a free
patent while already married to Elvira B. Calalang. Thus, having possessed the subject land in the manner and for the period
required by law after the dissolution of the first marriage and before the second marriage, the subject property ipso jure
became private property and formed part of Pedro Calalang’s exclusive property. 17 It was therefore excluded from the conjugal
partnership of gains of the second marriage.18

As the sole and exclusive owner, Pedro Calalang had the right to convey his property in favor of Nora B. Calalang-Parulan by
executing a Deed of Sale on February 17, 1984. The CA therefore erred in ruling that Pedro Calalang deprived his heirs of their
respective shares over the disputed property when he alienated the same.

It is hornbook doctrine that successional rights are vested only at the time of death. Article 777 of the New Civil Code provides
that "[t]he rights to the succession are transmitted from the moment of the death of the decedent." In Butte v. Manuel Uy and
Sons, Inc.,19 we proclaimed the fundamental tenets of succession:

The principle of transmission as of the time of the predecessor's death is basic in our Civil Code, and is supported by other
related articles. Thus, the capacity of the heir is determined as of the time the decedent died (Art. 1034); the legitime is to be
computed as of the same moment (Art. 908), and so is the in officiousness of the donation inter vivas (Art. 771). Similarly, the
legacies of credit and remission are valid only in the amount due and outstanding at the death of the testator (Art. 935), and
the fruits accruing after that instant are deemed to pertain to the legatee (Art. 948).

Thus, it is only upon the death of Pedro Calalang on December 27, 1989 that his heirs acquired their respective inheritances,
entitling them to their pro indiviso shares to his whole estate. At the time of the sale of the disputed property, the rights to the
succession were not yet bestowed upon the heirs of Pedro Calalang. And absent clear and convincing evidence that the sale was
fraudulent or not duly supported by valuable consideration (in effect an in officious donation inter vivas), the respondents have
no right to question the sale of the disputed property on the ground that their father deprived them of their respective shares.
Well to remember, fraud must be established by clear and convincing evidence. Mere preponderance of evidence is not even
adequate to prove fraud.20 The Complaint for Annulment of Sale and Reconveyance of Property must therefore be dismissed.

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated December 21, 2007 and Resolution dated
July 25, 2008 of the Thirteenth Division of the Court of Appeals in CA-G.R. CV No. 72531 are REVERSED and SET ASIDE. Civil
Case No. 370-M-91, or the Complaint for Annulment of Sale and Reconveyance of Property filed by the respondents with the
Regional Trial Court, Branch 21 of Malolos, Bulacan, on June 10, 1991, is hereby DISMISSED for lack of merit.

No pronouncement as to costs.

SO ORDERED.
 SECOND DIVISION

G. R. No. 121940 - December 4, 2001

JESUS SAN AGUSTIN, petitioner,

vs.
HON. COURT OF APPEALS and MAXIMO MENEZ, JR., Respondents.

QUISUMBING, J.:

This petition for review on certiorari seeks the reversal of the decision 1 of the Court of Appeals dated May 19, 1995, affirming
that of the Regional Trial Court in LRC Case No. R-4659.

The relevant facts, as summarized by the CA, are as follows:

On February 11, 1974, the Government Service Insurance System (GSIS) sold to a certain Macaria Vda. de Caiquep, a parcel of
residential land with an area of 168 square meters located in Rosario, Pasig City and denominated as Lot 13, Block 7, Pcs-5816
of the Government Service and Insurance System Low Cost Housing Project (GSIS-LCHP). The sale is evidenced by a Deed of
Absolute Sale. 2 On February 19, 1974, the Register of Deeds of Rizal issued in the name of Macaria Vda. de Caiquep. Transfer
Certificate of Title (TCT) No. 436465 with the following encumbrance annotated at the back of the title:

This Deed of Absolute Sale is subject to the conditions enumerated below which shall be permanent encumbrances on the
property, the violation of any of which shall entitle the vendor to cancel x x x. this Deed of Absolute Sale and reenter the
property;

The purpose of the sale be to aid the vendee in acquiring a lot for himself/themselves and not to provide him/them with a
means for speculation or profit by a future assignment of his/their right herein acquired or the resale of the lot through rent,
lease or subletting to others of the lot and subject of this deed, and therefore, the vendee shall not sell, convey, lease or
sublease, or otherwise encumber the property in favor of any other party within five (5) years from the dates final and absolute
ownership thereof becomes vested in the vendee, except in cases of hereditary succession or resale in favor of the vendor :

x x x (emphasis supplied).3

A day after We issuance of TCT No. 436465, or on February 20, 1974, Macaria Vda. de Caiquep sold the subject lot to private
respondent, Maximo Menez, Jr., as evidenced by a Deed of Absolute Sale (Exhibit "D"). 4 This deed was notarized but was not
registered immediately upon its execution in 1974 because GSIS prohibited him from registering the same in view of the five-
year prohibition to sell during the period ending in 1979.

Sometime in 1979, for being suspected as a subversive, an Arrest, Search and Seizure Order (ASSO) was issued against private
respondent. Military men ransacked his house in Cainta, Rizal. Upon learning that he was wanted by the military, he voluntarily
surrendered and was detained for two (2) years. When released, another order for his re-arrest was issued so he hid in
Mindanao for another four (4) years or until March 1984. In December of 1990, he discovered that the subject TCT was missing.
He consulted a lawyer but the latter did not act immediately on the matter. Upon consulting a new counsel, an Affidavit of
Loss5 was filed with the Register of Deeds of Pasig and a certified copy 6 of TCT No. 436465 was issued. Private respondent also
declared the property for tax purposes and obtained a certification thereof from the Assessor's Office. 7

Private respondent sent notices to the registered owner at her address appearing in the title and in the Deed of Sale. And, with
his counsel, he searched for the ,registered owner in Metro Manila and Rizal and as far as Samar, Leyte, Calbayog City,
Tacloban City, and in Eastern and Northern Samar. However, their search proved futile.

On July 8, 1992 private respondent filed a petition docketed as LRC Case No. R-4659 with the RTC, Branch 154, Pasig, Metro
Manila for the issuance of owner's duplicate copy of TCT No. 436465 to replace the lost one. To show he was the owner of the
contested lot, he showed the Deed of Absolute Sale, Exhibit "D". The petition was set for hearing and the court's order dated
July 10, 1992 was published once in Malaya, a nationally circulated newspaper in the Philippines. 8

During the hearing on September 3, 1992, only Menez and his counsel appeared. The Register of Deeds who was not served
notice, and the Office of the Solicitor General and the Provincial Prosecutor who were notified did not attend.

On September 18, 1992, there being no opposition, Menez presented his evidence ex-parte. The trial court granted his petition
in its decision9 dated September 30, 1992, the dispositive portion of which reads:

WHEREFORE, the petition is hereby GRANTED and the Registry of Deeds of Pasig, Metro Manila, is hereby directed to issue a
new Owner's Duplicate Copy of Transfer Certificate of Title No. 436465 based on the original thereon filed in his office which
shall contain the memorandum of encumbrance and an additional memorandum of the fact that it was issued in place of the
lost duplicate and which shall, in all respect, be entitled to like faith and credit as the original duplicate, for all legal intents and
purposes.

Issuance of new owner's duplicate copy shall be made only after this decision shall have become final and executory. The said
lost owner's duplicate is hereby declared null and void.
Petitioner shall pay all legal fees in connection with the issuance of the new owner's copy.

Let copies of this Order be furnished the petitioner, the registered owner of his given address in the title, in the deed of sale,
and in the tax declaration; the Registry of Deeds of Pasig, the Office of the Solicitor General; and the Provincial Fiscal of Pasig,
Metro Manila.

SO ORDERED.10

On October 13, 1992, herein petitioner, Jesus San Agustin, received a copy of the abovecited decision. He-claimed this was the
first time he became aware of the case of her aunt, Macaria Vda. de Caiquep who, according to him, died sometime in 1974.
Claiming that he was the present occupant of the property and the heir of Macaria, he filed his "Motion to Reopen
Reconstitution Proceedings''11 on October 27, 1992. On December 3, 1992, RTC issued an order denying said motion. 12

Petitioner filed an appeal with the Court of Appeals, which, as earlier stated, was denied in its decision of May 19, 1995.
Petitioner moved for a reconsideration, but it was denied in a resolution dated September 11, 1995. 13

Thus, the present petition, attributing the following errors to the court a quo:

A.

THE RESPONDENT COURT GRAVELY ERRED IN HOLDING THAT LRC CASE NO. R-4659 BEING ONLY A PETITION FOR THE
ISSUANCE OF A NEW OWNER'S DUPLICATE OF TITLE, THERE IS NO NEED OF PERSONAL NOTICE TO THE PETITIONER, THE
ACTUAL POSSESSOR [WHO HAS] AND ACTUALLY BEEN PAYING THE REAL ESTATE TAX, DESPITE PRIVATE RESPONDENT'S
KNOWLEDGE OF ACTUAL POSSESSION OF AND INTEREST OVER THE PROPERTY COVERED BY TCT NO. 436465. 14

B.

RESPONDENT COURT GRAVELY ERRED IN HOLDING THAT THE SALE BETWEEN THE PRIVATE RESPONDENT AND MACARIA
VDA. DE CAIQUEP IS NOT NULL AND VOID AND UNDER ARTICLE 1409 OF THE CIVIL CODE SPECIFICALLY PARAGRAPH (7)
THEREOF WHICH REFERS TO CONTRACTS EXPRESSLY PROHIBITED OR DECLARED VOID BY LAW. 15

Considering the above assignment of errors, let us resolve the corresponding issues raised by petitioner.

The first issue involves private respondent's alleged failure to send notice to petitioner who is the actual possessor of the
disputed lot. Stated briefly, is petitioner entitled to notice? Our finding is in the negative.

Presidential Decree No. 1529, otherwise known as the "Property Registration Decree" is decisive. It provides:

Sec. 109. Notice and replacement of lost duplicate certificate . In case of loss or theft of an owner's duplicate certificate of title,
due notice under oath shall be sent by the owner or by someone in his behalf to the Register of Deeds of the province or city
where the land lies as soon as the loss or theft is discovered. If a duplicate certificate is lost or destroyed, or cannot be
produced by a person applying for the entry of a new certificate to him or for :the registration of any instrument, a sworn
statement of the fact of such loss or destruction may be filed by the registered owner or other person it interest and registered.

Upon the petition of the registered owner or other person in interest, the court may, after notice and due hearing, direct the
issuance of a new duplicate certificate, which shall contain a memorandum of the fact that it is issued in place of the lost
duplicate certificate, but shall in all respects be entitled to like faith and credit as the original duplicate, and shall thereafter be
regarded as such for all purposes of this decree.

In Office of Court Administrator vs. Matas, A.M. No. RTJ-92-836, 247 SCRA 9, 16-17 (1995), we held:

In the case at bar, the respective certificate of title of the properties in question on file with the Register of Deeds are existing,
and it is the owner's copy of the certificate of title that was alleged to have been lost or destroyed. Thus, it is Section 109 of
P.D. 1529 which was approved on June 11, 1978 that becomes effective and is applicable, a reading of which shows that it is
practically the same as Section 109 of Act No. 496, governing reconstitution of a duplicate certificate of title lost or destroyed.
Consequently, it is sufficient that the notice under Section 109 is sent to the Register of Deeds and to those persons who are
known to have, or appear to have, an interest in the property as shown in the Memorandum of encumbrances at the back of
the original or transfer certificate of title on file in the office of the Register of Deeds. From a legal standpoint, there are no
other interested parties who should be notified, except those abovementioned since they are the only ones who may be
deemed to have a claim to the property involved. A person dealing with registered is not charged with notice of encumbrances
not annotated on the back of the title. (Emphasis supplied.)

Here, petitioner does not appear to have an interest in the property based on the memorandum of encumbrances annotated at
the back of the title. His claim, that he is an heir (nephew) of the original owner of the lot covered by the disputed lot and the
present occupant thereof is not annotated in the said memorandum of encumbrances. Neither was his claim entered on the
Certificate of Titles in the name of their original/former owners on file with the Register of Deeds at the time of the filing or
pendency of LRC Case No. R-4659. Clearly, petitioner is not entitled to notice.

Noteworthy is the fact that there was compliance by private respondent of the RTC's order of publication of the petition in a
newspaper of general circulation. This is sufficient notice of the petition to the public at large.
Petitioner contends that as possessor or actual occupant of the lot in controversy, he is entitled under the law to be notified. He
relies on Alabang Development Corporation vs. Valenzuela, G.R. No. L-54094, 116 SCRA 261, 277 (1982)) which held that in
reconstitution proceedings, courts must make sure that indispensable parties, i.e.. the actual owners and possessors of the
lands involved, are duly served with actual and personal notice of the petition. As pointed out by the appellate court, his reliance
on Alabang is misplaced because the cause of action in that case is based on Republic Act i No. 26, entitled "An Act Providing A
Special Procedure for the Reconstitution of Torrens Certificate of Title Lost or Destroyed," while the present case is based on
Section 109 of P.D. 1529 as above explained.

Under Republic Act No. 26, reconstitution is validly made only in case the original copy of the certificate of title with the Register
of Deeds is lost or destroyed. And if no notice of the date of hearing of a reconstitution case is served on a possessor or one
having interest in the property involved, he is deprived of his day in court and the order of reconstitution is null and void. 16 The
case at bar is not for reconstitution, but merely for replacement of lost duplicate certificate.

On the second assigned error, petitioner contends that Exhibit "D" is null and void under Article 1409 of the Civil Code,
specifically paragraph (7),17 because the deed of sale was executed within the five-year prohibitory period under Commonwealth
Act No. 141, as amended, otherwise known as "The Public Land Act." 18

We find petitioner's contention less than meritorious. We agree with respondent court that the proscription under Com. Act No.
141 on sale within the 5-year restrictive period refers to homestead lands only. Here the lot in dispute is not a homestead land,
as found by the trial and appellate courts. Said lot is owned by GSIS, under TCT No. 10028 in its proprietary capacity.

Moreover, as far as the violation of the 5-year restrictive condition imposed by GSIS in its contract with petitioner's predecessor-
in-interest is concerned, it is the GSIS and not petitioner who had a cause of action against private respondent. Vide the
instructive case of Sarmiento vs. Salud:

The condition that the appellees Sarmiento spouses could not resell the property except to the People's Homesite and Housing
Corporation (PHHC for short) within the next 25 years after appellees' purchasing the lot is manifestly a condition in favor of the
PHHC, and not one in favor of the Sarmiento spouses. The condition conferred no actionable right on appellees herein, since it
operated as a restriction upon their jus disponendi of the property they bought, and thus limited their right of ownership. It
follows that on the assumption that the mortgage to appellee Salud and the foreclosure sale violated the condition in the
Sarmiento contract, only the PHHC was entitled to invoke the condition aforementioned, and not the Sarmientos. The validity or
invalidity of the sheriff's foreclosure sale to appellant Salud thus violative of its right of exclusive reacquisition; but it (PHHC)
also could waive the condition and treat the sale as good, in which event, the sale can not be assailed for breach of the
condition aforestated.

In this case, the GSIS has not filed any action for the annulment of Exhibit "D", nor for the forfeiture of the lot in question. In
our view, the contract of sale remains valid between the parties, unless and until annulled in the proper suit filed by the rightful
party, the GSIS. For now, the said contract of sale is binding upon the heirs of Macaria Vda. de Caiquep, including petitioner
who alleges to be one of her heirs, in line with the rule that heirs are bound by contracts entered into by their predecessors-in-
interest.20

We are not unmindful of the social justice policy of R.A. 8291 otherwise known as "Government Service Insurance Act of 1997"
in granting housing assistance to the less-privileged GSIS members and their dependents payable at an affordable payment
scheme.21 This is the same policy which the 5-year restrictive clause in the contract seeks to implement by stating in the
encumbrance itself annotated at the back of TCT No. 436465 that, "The purpose of the sale is to aid the vendee in acquiring a
lot for himself/themselves and not to provide him/them with a means for speculation or profit by a future assignment of
his/their right herein acquired or the resale of the lot through rent, lease or subletting to others of the lot and subject of this
deed, . . . within five (5) years from the date final and absolute ownership thereof becomes vested in the vendee, except in
cases of hereditary succession or resale in favor of the vendor." 22 However, absent the proper action taken by the GSIS as the
original vendor referred to, the contract between petitioner's predecessor-in-interest and private respondent deserves to be
upheld. For as pointed out by said private respondent, it is protected by the Constitution under Section 10, Article III, of the Bill
of Rights stating that, "No law impairing the obligation of contracts shall be passed." Much as we would like to see a salutary
policy triumph, that provision of the Constitution duly calls for compliance.

More in point, however, is the fact that, following Sarmiento v. Salud,23 "Even if the transaction between the original awardee
and herein petitioner were wrongful, still, as between themselves, the purchaser and the seller were both in pari delicto,
being participes criminis as it were." As in Sarmiento, in this case both were aware of the existence of the stipulated condition in
favor of the original seller, GSIS, yet both entered into an agreement violating said condition and nullifying its effects. Similarly,
as Acting Chief Justice JBL Reyes concluded in Sarmiento, "Both parties being equally guilty, neither is entitled to complain
against the other. Having entered into the transaction with open eyes, and having benefited from it, said parties should be held
in estoppel to assail and annul their own deliberate acts."

WHEREFORE, the appeal is DENIED, and the decision of the respondent court is AFFIRMED.

SO ORDERED.
 THIRD DIVISION

G.R. No. 113725               June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,
vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-G.R. No. CV-35555, which
set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including
herein petitioner),  as  heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to
the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of
the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of that parcel of land surveyed
as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No.
4046 before the then Court of First Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is
registered in my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth
hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the
ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and
also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until
he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth
paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed,
and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect
and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the
buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina
Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my
near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria
Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will
obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants
and my sister."4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title
No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and
Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588,
before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to
enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in
that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the
testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export
sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to
the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or
mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of
sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot No. 1392 to the surviving
heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the
issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with
respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent)  and a certain Alan Azurin, son-in-law of the herein petitioner who was
lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived at an amicable settlement and entered into a
Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than
January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan
Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is considered compliance of the annuity as
mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number
of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during
each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of
December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year
1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year
1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year
1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year
1991-92."5

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of
sugar corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action
against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the command as
mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in
question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category
as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of
Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice.

SO ORDERED."6
On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and
ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of
the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge
Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said
obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392
and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the
reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-
appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and
distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her
legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge
Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition,
contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on
the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal
institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code
on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action.
Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a
mere simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near
descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the
testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any
effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite,
as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to who are the
"near descendants" and therefore, under Articles 843 8 and 8459 of the New Civil Code, the substitution should be deemed as not
written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed
before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was
no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The
disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the
decedent10 and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation
to their legitimate parents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his mother and sisters, as
compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further
proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge
Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not
extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to
his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to
his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct
thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory
heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's) obligation to deliver the
fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right
of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through
the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred
in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix
intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be
noncompliance with the obligation to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under
substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass
in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple
substitution,12 or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another
or others, as in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or
renunciation.14 In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla
default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil
provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to
shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution,
the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir.15 In the case
under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is
with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is
lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second
heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary
substitution."16 Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them
should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the
fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A
fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir. 17 In the case
under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a
modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the
New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge
imposed on him, shall not be considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact
manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub
modo  or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or
application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. 18 A "mode" imposes an
obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. 19 On the other hand, in a
conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the
testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. 20 To some extent, it is
similar to a resolutory condition.21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property
be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted
heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela
Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity
of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the
obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution
of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be
considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt,
the institution should be considered as modal and not conditional. 22

Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not
the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by the
buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions,
the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which
it was made.23 Such construction as will sustain and uphold the Will in all its parts must be adopted. 24

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to
Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer,
lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further
provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the
sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly
imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the
testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the
Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that
petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated
settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the
recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of
subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take
effect after his death.25 Since the Will expresses the manner in which a person intends how his properties be disposed, the
wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement
which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-
G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 171035               August 24, 2009

WILLIAM ONG GENATO, Petitioner,

vs.
BENJAMIN BAYHON, MELANIE BAYHON, BENJAMIN BAYHON, JR., BRENDA BAYHON, ALINA BAYHON-CAMPOS,
IRENE BAYHON-TOLOSA, and the minor GINO BAYHON, as represented herein by his natural mother as
guardian-ad-litem, JESUSITA M. BAYHON, Respondents.

DECISION

PUNO, CJ.:

At bar is a Petition for Review on Certiorari assailing the Decision of the Court of Appeals dated September 16, 2005 1 and
Resolution denying the petitioner’s motion for reconsideration issued on January 6, 2006.

This is a consolidated case stemming from two civil cases filed before the Regional Trial Court (RTC) – Civil Case No. Q-90-7012
and Civil Case No. Q-90-7551.

Civil Case No. Q-90-7012

On October 18, 1990, respondents Benjamin M. Bayhon, Melanie Bayhon, Benjamin Bayhon Jr., Brenda Bayhon, Alina Bayhon-
Campos, Irene Bayhon-Tolosa and the minor Gino Bayhon, as represented by his mother Jesusita M. Bayhon, filed an action
before the RTC, Quezon City, Branch 76, docketed as Civil Case No. Q-90-7012. In their Complaint, respondents sought the
declaration of nullity of a dacion en pago allegedly executed by respondent Benjamin Bayhon in favor of petitioner William Ong
Genato.2

Respondent Benjamin Bayhon alleged that on July 3, 1989, he obtained from the petitioner a loan amounting to PhP
1,000,000.00;3 that to cover the loan, he executed a Deed of Real Estate Mortgage over the property covered by Transfer
Certificate of Title (TCT) No. 38052; that, however, the execution of the Deed of Real Estate Mortgage was conditioned upon
the personal assurance of the petitioner that the said instrument is only a private memorandum of indebtedness and that it
would neither be notarized nor enforced according to its tenor. 4

Respondent further alleged that he filed a separate proceeding for the reconstitution of TCT No. 38052 before the RTC, Quezon
City, Branch 87.5 Petitioner William Ong Genato filed an Answer in Intervention in the said proceeding and attached a copy of an
alleged dacion en pago covering said lot.6 Respondent assailed the dacion en pago as a forgery alleging that neither he nor his
wife, who had died 3 years earlier, had executed it. 7

In his Answer, petitioner Genato denied the claim of the respondent regarding the death of the latter’s wife. 8 He alleged that on
the date that the real estate mortgage was to be signed, respondent introduced to him a woman as his wife. 9 He alleged that
the respondent signed the dacion en pago and that the execution of the instrument was above-board. 10

Civil Case No. Q-90-7551

On December 20, 1990, petitioner William Ong Genato filed Civil Case No. Q-90-7551, an action for specific performance, before
the RTC, Quezon City, Branch 79. In his Complaint, petitioner alleged that respondent obtained a loan from him in the amount
of PhP 1,000,000.00. Petitioner alleged further that respondent failed to pay the loan and executed on October 21, 1989
a dacion en pago in favor of the petitioner. The dacion en pago was inscribed and recorded with the Registry of Deeds of
Quezon City.11

Petitioner further averred that despite demands, respondent refused to execute the requisite documents to transfer to him the
ownership of the lot subject of the dacion en pago. Petitioner prayed, inter alia, for the court to order the respondent to execute
the final deed of sale and transfer of possession of the said lot. 12

Decision of the Consolidated Cases

The two cases were consolidated and transferred to the RTC, Quezon City, Branch 215. On October 9, 1997, the trial court
rendered its Decision. It found that respondent obtained a loan in the amount of PhP 1,000,000.00 from the petitioner on July
3, 1989. The terms of the loan were interest payment at 5% per month with an additional 3% penalty in case of nonpayment. 13

With respect to the dacion en pago, the trial court held that the parties have novated the agreement. 14 It deduced the novation
from the subsequent payments made by the respondent to the petitioner. Of the principal amount, the sum of PhP 102,870.00
had been paid: PhP 27,870.00 on March 23, 1990, PhP 55,000.00 on 26 March 1990 and PhP 20,000.00 on 16 November
1990.15 All payments were made after the purported execution of the dacion en pago.
The trial court likewise found that at the time of the execution of the real estate mortgage, the wife of respondent, Amparo
Mercado, was already dead. It held that the property covered by TCT No. 38052 was owned in common by the respondents and
not by respondent Benjamin Bayhon alone. It concluded that the said lot could not have been validly mortgaged by the
respondent alone; the deed of mortgage was not enforceable and only served as evidence of the obligation of the respondent. 16

In sum, the trial court upheld the respondent’s liability to the petitioner and ordered the latter to pay the sum of Php
5,647,130.00.17 This amount included the principal, the stipulated interest of 5% per month, and the penalty; and, was
calculated from the date of demand until the date the RTC rendered its judgment.

Appeal to the Court of Appeals

Respondents appealed before the Court of Appeals. On March 28, 2002, respondent Benjamin Bayhon died while the case was
still pending decision.18 On September 16, 2005, the Court of Appeals rendered a decision reversing the trial court.

The Court of Appeals held that the real estate mortgage and the dacion en pago were both void. The appellate court ruled that
at the time the real estate mortgage and the dacion en pago  were executed, or on July 3, 1989 and October 21, 1989,
respectively, the wife of respondent Benjamin Bayhon was already dead. 19 Thus, she could not have participated in the
execution of the two documents. The appellate court struck down both the dacion en pago and the real estate mortgage as
being simulated or fictitious contracts pursuant to Article 1409 of the Civil Code. 20

The Court of Appeals held further that while the principal obligation is valid, the death of respondent Benjamin Bayhon
extinguished it. 21 The heirs could not be ordered to pay the debts left by the deceased. 22 Based on the foregoing, the Court of
Appeals dismissed petitioner’s appeal. Petitioner’s motion for reconsideration was denied in a resolution dated January 6, 2006. 23

Petition for Review

Petitioner now comes before this Court assailing the decision of the Court of Appeals and raising the following issues:

Whether or not Benjamin Bayhon is liable to Mr. Genato in the amount of Php 5,647,130.00 in principal and interest as of
October 3, 1997 and 5% monthly interest thereafter until the account shall have been fully paid. 24

The Court of Appeals erred in declaring the Real Estate Mortgage dated July 3, 1989 and the Dacion en Pago dated October 21,
1989, null and void.25

We shall first tackle the nullity of the dacion en pago.

We affirm the ruling of the appellate court that the subject dacion en pago is a simulated or fictitious contract, and hence void.
The evidence shows that at the time it was allegedly signed by the wife of the respondent, his wife was already dead. This
finding of fact cannot be reversed.

We now go to the ruling of the appellate court extinguishing the obligation of respondent. As a general rule, obligations derived
from a contract are transmissible. Article 1311, par.1 of the Civil Code provides:

Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising
from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the
value of the property he received from the decedent. 1avvphi1

In Estate of Hemady v. Luzon Surety Co., Inc., 26 the Court, through Justice JBL Reyes, held:

While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the
inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased
but also to his obligations. Articles 774 and 776 of the New Civil Code (and Articles 659 and 661 of the preceding one) expressly
so provide, thereby confirming Article 1311 already quoted.

"ART. 774. — Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of
law."

"ART. 776. — The inheritance includes all the property, rights and obligations of a person which are not extinguished by his
death."27 (Emphasis supplied)

The Court proceeded further to state the general rule:

Under our law, therefore, the general rule is that a party's contractual rights and obligations are transmissible to
the successors. The rule is a consequence of the progressive "depersonalization" of patrimonial rights and duties that, as
observed by Victorio Polacco, has characterized the history of these institutions. From the Roman concept of a relation from
person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a
representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in
consideration of its performance by a specific person and by no other. The transition is marked by the disappearance of the
imprisonment for debt.28 (Emphasis supplied)
The loan in this case was contracted by respondent. He died while the case was pending before the Court of Appeals. While he
may no longer be compelled to pay the loan, the debt subsists against his estate. No property or portion of the inheritance may
be transmitted to his heirs unless the debt has first been satisfied. Notably, throughout the appellate stage of this case, the
estate has been amply represented by the heirs of the deceased, who are also his co-parties in Civil Case No. Q-90-7012.

The procedure in vindicating monetary claims involving a defendant who dies before final judgment is governed by Rule 3,
Section 20 of the Rules of Civil Procedure, to wit:

When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final
judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the
manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

Pursuant to this provision, petitioner’s remedy lies in filing a claim against the estate of the deceased respondent.

We now go to the interest awarded by the trial court. We note that the interest has been pegged at 5% per month, or 60% per
annum. This is unconscionable, hence cannot be enforced. 29 In light of this, the rate of interest for this kind of loan transaction
has been fixed in the case of Eastern Shipping Lines v. Court of Appeals, 30 at 12% per annum, calculated from October 3, 1989,
the date of extrajudicial demand.31

Following this formula, the total amount of the obligation of the estate of Benjamin Bayhon is as follows:

Plus: Interest

Principal Php 1,000,000.00

Less: Partial Payments 27,870.00
55,000.00
20,000.00

897,130.00
(12% per annum x 20 years) 2,153,552.00

TOTAL: Php 3,050,682.00

IN VIEW WHEREOF, the decision of the Court of Appeals dated September 16, 2005 is AFFIRMED with the MODIFICATION that
the obligation to pay the principal loan and interest contracted by the deceased Benjamin Bayhon subsists against his estate and
is computed at PhP 3,050,682.00.

No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 110427 February 24, 1997

The Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents

NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a retired pharmacist, and former
professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by
judgment1 of the Regional Trial Court of Quezon City, Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo
A. Evangelista.3 She was so adjudged because of her advanced age and physical infirmities which included cataracts in both
eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.

Cañiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo
Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro
and Leonora Estrada from said premises. 4 The complaint was later amended to identify the incompetent Cañiza as plaintiff,
suing through her legal guardian, Amparo Evangelista.

The amended Complaint5 pertinently alleged that plaintiff Cañiza was the absolute owner of the property in question, covered by
TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to
temporarily reside in her house, rent-free; that Cañiza already had urgent need of the house on account of her advanced age
and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment;" that
through her guardian, Cañiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so;
and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question, they . . (were)
enriching themselves at the expense of the incompetent, because, while they . . (were) saving money by not paying any rent
for the house, the incompetent . . (was) losing much money as her house could not be rented by others." Also alleged was that
the complaint was "filed within one (1) year from the date of of first letter of demand dated February 3, 1990."

In their Answer with Counterclaim, the defendants declared that they had been living in Cañiza's house since the 1960's; that in
consideration of their faithful service they had been considered by Cañiza as her own family, and the latter had in fact executed
a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question.

Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's favor, 6 the Estradas being ordered to vacate the premises
and pay Cañiza P5,000.00 by way of attorney's fees.

But on appeal,8 the decision was reversed by the Quezon City Regional Trial Court, Branch 96. 9 By judgment rendered on
October 21, 1992, 10 the RTC held that the "action by which the issue of defendants' possession should be resolved is accion
publiciana, the obtaining factual and legal situation . . demanding adjudication by such plenary action for recovery of possession
cognizable in the first instance by the Regional Trial Court."

Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a
decision 11 promulgated on June 2, 1993, the Appellate Court 12 affirmed the RTC's judgment in toto. It ruled that (a) the proper
remedy for Cañiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants
have not been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted
family of Carmen Cañiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will,
unless and until it has passed probate by the proper court, could not be the basis of defendants' claim to the property, . . it is
indicative of intent and desire on the part of Carmen Cañiza that defendants are to remain and are to continue in their
occupancy and possession, so much so that Cañiza's supervening incompetency can not be said to have vested in her guardian
the right or authority to drive the defendants out." 13

Through her guardian, Cañiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the
main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in
(b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case." 14

In the responsive pleading filed by them on this Court's requirement, 15 the Estradas insist that the case against them was really
not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any "contract,
express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be
deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law." Neither could
the suit against them be deemed one of forcible entry, they add, because they had been occupying the property with the prior
consent of the "real owner," Carmen Cañiza, which "occupancy can even ripen into full ownership once the holographic will of
petitioner Carmen Cañiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Cañiza's
legal guardian to oust them from the disputed premises.
Carmen Cañiza died on March 19, 1994, 16 and her heirs — the aforementioned guardian, Amparo Evangelista, and Ramon C.
Nevado, her niece and nephew, respectively — were by this Court's leave, substituted for her. 17

Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of
possession of the property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista, as Cañiza's legal
guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not
Evangelista may continue to represent Cañiza after the latter's death.

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of
the complaint and the character of the relief sought. 18 An inquiry into the averments of the amended complaint in the Court of
origin is thus in order. 19

The amended Complaint alleges: 20

6. That the plaintiff  Carmen Cañiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias,
Quezon City, which property is now the subject of this complaint;

xxx xxx xxx

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the
house of plaintiff Carmen Cañiza, for free, out of her kindness;

10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said
house, but the two (2) letters of demand were ignored and the defendants refused to vacate the same. . .

11. That the plaintiff, represented by her legal guardian, Amparo Evangelista , made another demand on the
defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging
Handa, Quezon City, but after two (2) conferences, the result was negative and no settlement was reached. A
photocopy of the Certification to File Action dated July 4, 1990, issued by said Barangay Captain is attached,
marked Annex "D" and made an integral part hereof;

12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still
refused to vacate the premises, and they are up to this time residing in the said place;

13. That this complaint is filed within one (1) year from the date of first letter of demand dated February 3,
1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian — Amparo Evangelista;

14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they
are enriching themselves at the expense of the incompetent  plaintiff  because, while they are saving money by
not paying any rent for the house, the plaintiff is losing much money as her house could not be rented by
others;

15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet
her expenses for her support, maintenance and medical treatment;

16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the
plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to spend P10,000.00
as attorney's fees.

Its prayer 21 is quoted below:

WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza, represented by her legal
guardian, Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of
plaintiff and against the defendants as follows:

1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them,
to vacate the house and premises at No. 6 1 Scout Tobias, Quezon City, so that its possession can be restored
to the plaintiff  Carmen Cañiza; and

2. To pay attorney's fees in the amount of P10,000.00;

3. To pay the costs of the suit.

In essence, the amended complaint states:

1) that the Estradas were occupying Cañiza's house by tolerance — having been "allowed to live temporarily . .
(therein) for free, out of . . (Cañiza's) kindness;"
 2) that Cañiza needed the house "urgently" because her "health . . (was) failing and she . . (needed) funds . .
to meet her expenses for her support, maintenance and medical treatment;"

3) that through her general guardian, Cañiza requested the Estradas several times, orally and in writing, to
give back possession of the house;

4) that the Estradas refused and continue to refuse to give back the house to Cañiza, to her continuing
prejudice; and

5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it
suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, 22 and a
complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful
without necessarily employing the terminology of the law. 23

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter
alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld
after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend
that since they did not acquire possession of the property in question " by virtue of any contract, express or implied" — they
having been, to repeat, "allowed to live temporarily . . (therein) for free, out of . . (Cañiza's) kindness" — in no sense could
there be an "expiration or termination of . . (their) right to hold possession, by virtue of any contract, express or implied." Nor
would an action for forcible entry lie against them, since there is no claim that they had "deprived (Cañiza) of the possession
of . . (her property) by force, intimidation, threat, strategy, or stealth.

The argument is arrant sophistry. Cañiza's act of allowing the Estradas to occupy her house, rent-free, did not create a
permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness
clearly require that that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the
Estradas of returning the house to Cañiza upon her demand. More than once has this Court adjudged that a person who
occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by
an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against
him. 24 The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by
tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date
of the demand to vacate. 25 In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the
land or property the moment he is required to leave. 26 Thus, in Asset Privatization Trust vs. Court of Appeals, 27 where a
company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing
to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, . . (its) continuing
possession . . became illegal and the complaint for unlawful detainer filed by the
. . (plant's owner) was its proper remedy.

It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year
period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand, 28 the reason being that
the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the
premises. 29 Now, the complaint filed by Cañiza's guardian alleges that the same was "filed within one (1) year from the date of
the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact
a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was actually
filed on September 17, 1990, well within one year from the second (last) written demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently
withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the
latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Cañiza had executed a will
bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in the premises after
demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best
inchoate, no transfer of ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as
possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance; that had been
legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is
dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them — an event
which still has to take place; in other words, prior to the probate of the will, any assertion of possession by them would be
premature and inefficacious.

In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession
by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Cañiza is not
ejectment but accion publiciana, a plenary action in the RTC or an action that is one for recovery of the right to possession de
jure.

II

The Estradas insist that the devise of the house to them by Cañiza clearly denotes her intention that they remain in possession
thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster
would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; 30 and until admitted to
probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either
real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, id.). 31 An owner's
intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the former's taking
back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the
owner's resumption of possession is apparent: she needed to generate income from the house on account of the physical
infirmities afflicting her, arising from her extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt,
Carmen Cañiza. Her Letters of Guardianship 32 dated December 19, 1989 clearly installed her as the "guardian over the  person
and properties of the incompetent CARMEN CANIZA with full authority to take possession of the property  of said incompetent in
any province or provinces in which it may be situated and to perform all other acts necessary for the management of her
properties . . " 33 By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and
spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. 34 It also
became her right and duty to get possession of, and exercise control over, Cañiza's property, both real and personal, it being
recognized principle that the ward has no right to possession or control of his property during her incompetency. 35 That right to
manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it, 36 and
bring and defend such actions as may be needful for this purpose. 37

Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and
suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward . — A guardian must
manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as
maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and
if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate,
upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such
maintenance.

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even
when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve "the issue of ownership . .
only to determine the issue of possession." 38

III

As already stated, Carmen Cañiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss
the petition, arguing that Cañiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as
her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit.

While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of
either the guardian or the ward, 39 the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen
Cañiza, is one of the latter's only two (2) surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. On their motion
and by Resolution of this Court 40 of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 41

Sec. 18. Death of a party. — After a party dies and the claim is not thereby extinguished, the court shall order,
upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased
within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court, and the representative shall
immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring
such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased
may be allowed to be substituted for the deceased, without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for the minor heirs.

To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish the desahucio suit instituted by
her through her guardian. 42 That action, not being a purely personal one, survived her death; her heirs have taken her place
and now represent her interests in the appeal at bar.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 — affirming the
Regional Trial Court's judgment and dismissing petitioner's petition for certiorari — is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED
and AFFIRMED. Costs against private respondents.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.:

This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores
Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino-Corona
executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate
with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate.

On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock
and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus
interests, which he claimed were personal funds. As found by the Court of Appeals, 2 the alleged advances consisted of
P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as "increment
thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038
of the Bank of America, Makati, Metro Manila.

On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings
account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground
for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of
funds belonging to the estate." 4

Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed
with his late wife and the bank on June 19, 1970. The agreement provides:

We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS
ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any
or either of us with the BANK in our joint savings current account shall be the property of all or both of us and
shall be payable to and collectible or withdrawable by either or any of us during our lifetime, and after the
death of either or any of us shall belong to and be the sole property of the survivor or survivors, and shall be
payable to and collectible or withdrawable by such survivor or survivors.

We further agree with each other and the BANK that the receipt or check of either, any or all of us during our
lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our
above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or
withdrawal. 5

The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. Vitug,
the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7

On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the
above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a
valid will as prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a
prohibited donation under the provisions of Article 133 of the Civil Code. 9

The dispositive portion of the decision of the Court of Appeals states:

WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside
insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for
reimbursement of his alleged advances to the estate, but the same order is sustained in all other respects. In
addition, respondent Judge is directed to include provisionally the deposits in Savings Account No. 35342-038
with the Bank of America, Makati, in the inventory of actual properties possessed by the spouses at the time of
the decedent's death. With costs against private respondent. 10

In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions in Rivera v.
People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and
considering them as aleatory contracts. 13

The petition is meritorious.

The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined
as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or
complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain to the testator. 15 In
this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied
on, Rivera v. People's Bank and Trust Co.,  16 we rejected claims that a survivorship agreement purports to deliver one party's
separate properties in favor of the other, but simply, their joint holdings:

xxx xxx xxx

... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the
funds-deposited in the bank, which assumption was in turn based on the facts (1) that the account was
originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the
deceased." But it not infrequently happens that a person deposits money in the bank in the name of another;
and in the instant case it also appears that Ana Rivera served her master for about nineteen years without
actually receiving her salary from him. The fact that subsequently Stephenson transferred the account to the
name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question
although there was no relation of kinship between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof
to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the
funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners
thereof; and that either of them could withdraw any part or the whole of said account during the lifetime of
both, and the balance, if any, upon the death of either, belonged to the survivor. 17

xxx xxx xxx

In Macam v. Gatmaitan, 18 it was held:

xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article 1790 of the Civil
Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that
which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at
an indeterminate time. As already stated, Leonarda was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in
case Leonarda died first, and Leonarda would become the owner of the automobile and the furniture if Juana
were to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one
another conditioned upon who might die first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This contract, as any other contract, is binding
upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as Leonarda would have acquired the ownership of the
automobile and of the furniture if Juana had died first. 19

xxx xxx xxx

There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having
been acquired during the existence of the marita. relations. 20

Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death
of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse's own
properties to the other.

It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the Court of
Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property relations. Certainly, the
spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly
denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account
No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor
of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can
not be said that one spouse could have pressured the other in placing his or her deposits in the money pool.

The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract imposed a
mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code. 24

Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do
something in consideration of what the other shall give or do upon the happening of an event which is
uncertain, or which is to occur at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is
(1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance have been held to fall under the first category, while a contract
for life annuity or pension under Article 2021, et sequentia, has been categorized under the second. 25 In either case, the
element of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other.

However, as we have warned:

 xxx xxx xxx

But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of
the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious
donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed
and annulled upon such grounds. No such vice has been imputed and established against the agreement
involved in this case. 26

xxx xxx xxx

There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as held by
the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership.

The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her
death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent
court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate
property of petitioner, it forms no more part of the estate of the deceased.

WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9, 1988,
are SET ASIDE.

No costs.

SO ORDERED.
 FIRST DIVISION

[G.R. No. L-3907. March 12, 1908. ]

ROMAN ABAYA, Petitioner-Appellant, v. DONATA ZALAMERO, Respondent-Appellee.

L. Joaquin, for Appellant.

Escueta and Lim, for Appellee.

SYLLABUS

1. EXECUTION OF WILLS. — Where it appears in a will that the testator has stated that by reason of his inability to sign his
name he requested one of the three witnesses present to do so, and that as a matter of fact, the said witness wrote the name
and surname of the testator who, stating that the instrument executed by him contained his last will, put the sign of the cross
between his said name and surname, all of which details are set forth in a note which the witnesses forthwith subscribed in the
presence of the testator and of each other, said will may be probated.

2. ID. — When the essential requisites of section 618 of the Code of Civil Procedure for the execution and validity of a will have
been complied with, the fact that the witness who was requested to sign the name of the testator, omitted to state the words
"by request of — the testator," when writing of his own hand the name and surname of the said testator, and the fact that said
witness subscribed his name together with the other witnesses and not below the name of the testator, does not constitute a
defect nor invalidate the said will.

DECISION

TORRES, J.  :

On the 6th of August, Roman Abaya filed a petition with the Court of First Instance of La Laguna, for the allowance of the will
executed by Juan Zalamero, a resident of Pagsanhan, in said province, on the 29th of October, 1905, and produced in court the
said will, which was written in Tagalog dialect. Donata Zalamero opposed the petition, alleging that the will had been executed
under pressure and unlawful and improper influence on the part of those who were to benefit thereby, and that it had not been
executed and signed in accordance with the provisions of section 618 of the Code of Civil Procedure. A day was appointed for
the hearing and in the course of the proceedings the witnesses offered by both parties were examined; on the 10th of January,
1907, the court refused to admit the will of said Juan Zalamero, as requested by Roman Abaya; Abaya appealed from the
decision and moved for a new trial which motion has not been finally acted upon by the court; for this reason the petitioner,
now before this court, still insists thereon for the effects of the appeal which he had interposed, and has submitted a certified
copy of the proceedings to which the assignment of errors presented by him refers.

Two points are presented. The first is, that Juan Zalamero, while in life, executed his will on the 29th of October, 1905, under
lawful pressure and influence exercised by those who were thereby benefited; and second, that the said will was not executed
and signed in accordance with the provisions of section 618 of the Code of Civil Procedure.

After an examination of the facts alleged and the evidence adduced by both parties, and considering the case according to the
rules of common sense and sound criticism, it must necessarily be admitted that the weight and preponderance of the evidence
prove in a conclusive manner the authenticity and genuineness of the said will as the real and true expression of the will of the
testator, Juan Zalamero, and for this reason the first point should have been decided by the court below in a negative sense.

It was not expressly pretended that the said will should be disallowed under the provisions of section 634 of the Code of Civil
Procedure, either because the testator was insane or otherwise mentally incapable to execute such instrument at the time of its
execution, or because it was procured by undue and improper pressure and influence on the part of the beneficiaries; nor even
if such request had been made, could the nullity of the said will have been judicially declared in view of the lack of satisfactory
proof of the presence of such circumstances. Therefore, the court, in order to disallow the petition, had to disregard them and
rest the decision upon the allegation that the will was not executed in accordance with the provisions of section 618 of the Code
of Civil Procedure.

Notwithstanding the reasons stated in the judgment appealed from, it appears that the will in question was executed with the
requirements established by the law in force, and that, therefore, the decision upon the second point should be against the
opponents to the petition.

It is shown by the evidence, and by the will itself, that for the reasons set forth by the testator and at his own request, one of
the witnesses to the will, Mariano Zaguirre, wrote with his own hand the name and surname of Juan Zalamero, the testator, and
his presence, and that the latter put a cross between them and a note stating that what had been written before the name and
surname of the said Juan Zalamero, with the cross placed at the foot thereof, was his testament and contained his last will as
stated by him when he directed the execution thereof in the presence of the three witnesses who subscribed it in his presence,
and in the presence of each other.

It is true that the witness Mariano Zaguirre, who was requested by the testator to write his name and surname at the end of his
will, did not affix his own signature immediately below the name and surname of Juan Zalamero and below the cross placed by
the latter with the words "by request of the testator Juan Zalamero;" but in the said will are clearly stated the reason why it was
not signed by the testator himself as also the request he made to the witness Zaguirre, and a repetition thereof was not
necessary; further, that this same witness, upon being requested, wrote with his own hand the name and surname of the
testator, who afterwards placed the cross between them, stating that it was his statement, all of which was written immediately
after the said name and surname of the testator and the cross made by him, and the same was subscribed by the three
witnesses in the manner provided by law.

The essential requisites prescribed by the above-mentioned section 618 of the law have been complied with, namely, that three
witnesses were present at the execution of the will of Juan Zalamero at the date mentioned therein; that they heard his
statement that the said instrument, written and drawn up under his direction, contained his last will; that they saw and
witnessed when, at the express request of the testator, and under his direction, the witness, Mariano Zaguirre, wrote at the foot
of the will the name and surname of Juan Zalamero, and when the latter put the cross between his written name and surname,
each of the witnesses subscribing it at the time and in the presence of each other.

For the reasons hereinbefore set forth it is our opinion that the judgment appealed from should be reversed and that it be
declared, as we now do, that the will executed by the late Juan Zalamero while in life, under date of the 29th of October, 1905,
was executed in accordance with the law, and that therefore it should be duly admitted in order that it may produce all
consequent legal effects, and it is so ordered without any special ruling as to costs.

Arellano, C.J., Mapa, Johnson, Carson, Willard and Tracey, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4067            November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,

vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will
is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this attestation clause and that of the left margin of the three pages
thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them
were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three,
(1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A
reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his
name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty.
Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses;
(2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a
cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to
certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to
write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein
petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways
by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark,
and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each
other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ.,  concur.
 EN BANC

[G.R. No. L-5826. April 29, 1953.]

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, Petitioner-Appellee, v. PELAGIO CAGRO, ET
AL., Oppositors-Appellants.

Clouduallo Lucero and Vicente C. Santos for Appellants.

Marciano Chitongco and Zosimo B. Echanova for Appellee.

SYLLABUS

1. WILLS; ATTESTATION CLAUSE; LACK OF SIGNATURES OF ATTESTING WITNESSES AT BOTTOM OF ATTESTATION CLAUSE,
IS FATAL DEFECT. — Inasmuch as 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, the will is fatally
defective. 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.

DECISION

PARAS, C.J.  :

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the
will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellants is that the will is fatally defective, because its attestation clause is not signed
by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the
law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in
compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not
signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the
petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore, should be
admitted to probate. It appears that the will was signed by the testator and was attested by three instrumental witnesses, not
only at the bottom, but also on the left-hand margin. The witnesses testified not only that the will was signed by the testator in
their presence and in the presence of each other but also that when they did so, the attestation clause was already written
thereon. Their testimony has not been contradicted. The only objection set up by the oppositors to the validity of the will is the
fact that the signatures of the instrumental witnesses do not appear immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan v. Abangan, (40 Phil., 476), this court said that when
the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses
(as the instant case), their signatures on the left margin of said sheet would be completely purposeless." In such a case, the
court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law —
which is to avoid the substitution of any of the sheets of the will, thereby changing the testator’s dispositions — has already
been accomplished. We may say the same thing in connection with the will under consideration because while the three
instrumental witnesses did not sign immediately after the attestation clause, the fear entertained by the majority that it may
have been only added on a subsequent occasion and not at the signing of the will, has been obviated by the uncontradicted
testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed.

The following observation made by this court in the Abangan case is very fitting:jgc:
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this 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 last will, must be disregarded." (supra)

We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which,
in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (articles 788 and 791, New
Civil Code).

I am therefore of the opinion that the will in question should be admitted to probate.

Feria, J., concurs.

TUASON, J., dissenting:

I concur in Mr. Justice Bautista’s dissenting opinion and may add that the majority decision erroneously sets down as a fact that
the attestation clause was not signed, when the witnesses’ signatures appear on the left margin and the real and only question
is whether such signatures are legally sufficient.

The only answer, in our humble opinion, is yes. The law on wills does not provide that the attesting witness should sign the
clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are not good. A letter
is not any the less the writer’s simply because it was signed, not at the conventional place but on the side or on top.
 FIRST DIVISION

[G.R. No. L-36033. November 5, 1982.]

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, Petitioner, v. HON. AVELINO S. ROSAL, as Judge of the Court of First Instance of Southern Leyte,
(Branch III, Maasin), Respondent.

Erasmo M. Diola for Petitioner.

Aurelio S. Rosal in his own behalf.

SYNOPSIS

Petitioner filed a petition for probate of the will of the late Dorotea Perez and presented as evidence the alleged will and the
testimony of one of the subscribing witnesses thereto. However, the trial court disallowed the will for want of formality in its
execution because the will was signed at the bottom of the page solely by the testatrix and at the left hand margin by three
instrumental witnesses. Respondent judge interpreted Article 805 of the Civil Code to require that, for a notarial will to be valid,
it is not enough that only the testatrix signs at the "end" of the will but all the three subscribing witnesses must also sign at the
same place or at the end, in the presence of the testatrix and of one another, because the attesting witnesses to the will attest
not merely the will itself but also the signature of the testator. Petitioner’s motion for reconsideration and subsequent motion for
the appointment of special administrator were likewise denied.

On certiorari, the Supreme Court held a) that the objects of attestation and subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly identified by a subscribing witness to be the same will executed by the
testatrix; and b) that the failure of the attestation clause to state the number of pages used in writing the will would have been
a fatal defect were it not for the fact that it is really and actually composed of only two pages duly signed by the testatrix and
her instrumental witnesses.

Petition granted. Assailed orders of probate court set aside. Respondent court is ordered to allow probate of the will and to
conduct further proceedings.

SYLLABUS

1. CIVIL LAW; WILLS AND TESTAMENTS; NOTARIAL WILL; FORMALITIES; ATTESTATION AND SUBSCRIPTION; DEFINED. —
Under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator’s
name written by another person in his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another. Attestation consists in witnessing the testator’s execution
of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses’ names
upon the same paper for the purpose of identification of such paper as the will which was executed by the testator (Ragsdale v.
Hill, 269 SW 2d 911).

2. ID.; ID.; ID.; ID.; ID.; FULLY COMPLIED WITH IN CASE AT BAR. — The objects of attestation and of subscription were fully
met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains
all the testamentary dispositions, especially so when the will was properly identified by subscribing witness Vicente Timkang to
be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.

3. ID.; ID.; ID.; ID.; TREND TOWARDS LIBERAL CONSTRUCTION. — While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449) The law is to be liberally construed, "the underlying and fundamental objective
permeating the provision on the law on wills in this project consists in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions
to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This
objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code
Commission, p. 103).

4. ID.; ID.; ID.; ID.; ATTESTATION CLAUSE; FAILURE TO STATE THE NUMBER OF PAGES USED IN WRITING THE WILL IS
FATAL; EXCEPTION; CASE AT BAR. — The failure of the will’s attestation clause to state the number of pages used in writing
the will 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 (See Singson v.
Florentino, Et. Al. (192 Phil. 161, 1641 and Ino v. Ino, [11 SCRA 422, 429].)

DECISION

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

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late
Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire
testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by
the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three 13) attesting witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner’s compliance with the requirement of publications, the trial court commissioned
the branch clerk of court to receive the petitioner’s evidence. Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of
Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names
of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion ex parte praying for a
thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked
that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with
the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to
his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S.
Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

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

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental
and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:jgc:

"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 with and the pages thereof in the presence of the testator
and of one another.

"If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them."

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not
enough that only the testatrix signs at the "end" but all the three subscribing witnesses must also sign at the same place or at
the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will
itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at
the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter
of absolute necessity for the extrinsic validity of the will that the signatures of the subscribing witnesses should be specifically
located at the end of the will after the signature of the testatrix. He contends that it would be absurd that the legislature
intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this
space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human
nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by
the testator’s name written by another person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator’s execution
of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses’ names
upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. (Ragsdale v.
Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a
manner which fully satisfies the purpose of identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness
of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in
this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more
freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency
in respect to the formalities in the execution of a will" (Report of the Code Commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for the defect in the place of
signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses
signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was
properly identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question
of fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire 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."vi

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

"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 v.
Navas L. Sioca, 43 Phil. 405; Gumban v. Gorecho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481; Echevarria v. 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 passes 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."

Ino v. Ino (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:

". . . Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses, did
sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the
purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attest to the full observance of the statutory requisites. Otherwise, as
stated in Vda. de Gil. v. Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration) ‘witnesses may sabotage the will by
muddling or bungling it or the attestation clause.’"

WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which denied the probate of the will,
the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside.
The respondent court is ordered to allow the probate of the will and to conduct further proceedings in accordance with this
decision. No pronouncement of costs.

SO ORDERED.

Melencio-Herrera (Acting Chairman), Plana, Vasquez and Relova, JJ., concur.

Teehankee (Chairman), J., is on leave.

 THIRD DIVISION

G.R. No. 122880             April 12, 2006

FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.

DECISION

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on
16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of
Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just
aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper
execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little
room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the
validity of notarial wills — that they be acknowledged before a notary public by the testator and the witnesses. A notarial will
executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition
filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June
1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong
pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang
katoliko at ang 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.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at 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.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO

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

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the
bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one
Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12
legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence
was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry
and usurpation of real property, all centering on petitioner’s right to occupy the properties of the decedent. 3 It also asserted that
contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of
Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by
three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out
that decedent’s 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

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.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure
of the attestation clause to state the number of pages contained in the will. 15 In ruling that the will could not be admitted to
probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the
removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a
statement of the total number of sheets such removal might be effected by taking out the sheet and changing
the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in
the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures
of the testator and witnesses in the margin, a matter attended with much greater difficulty." 16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages
used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in
the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional
security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will.
Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages
used upon which the will is written. Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161
and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the
attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus
Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages used in the will,
however, the same was found in the last part of the body of the Will:

"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the
attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to
be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to
the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66
Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations." (page 165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of
pages used in the:

"x x x

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not for the fact that,  in this case, it is discernible from the entire will
that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier
stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises
the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of
two pages including this page" (pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not
even contain any notarial acknowledgment wherein the number of pages of the will should be stated. 21

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

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the
attestation state the number of pages of the will is extant from Section 618. 23 However, the enactment of the Civil Code in 1950
did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that
may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their
execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in the execution of wills." 24 However, petitioner conveniently omits the
qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be
"but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator."25

Caneda v. Court of Appeals26  features an extensive discussion made by Justice Regalado, speaking for the Court on the
conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in
wills.27 Uy Coque  and Andrada are cited therein, along with several other cases, as examples of the application of the rule of
strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be
applied:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely 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 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.

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.

There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss
them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the
will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part
of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only
signature appearing at the so-called "logical end" 44 of the will on its first page. Also, the will itself is not numbered correlatively
in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion
that these two requirements be construed as mandatory. 45 Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not
be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by
whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 189984               November 12, 2012

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE S. LOPEZ
RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

This Petition for Review on Certiorari assails the March 30, 2009 Decision 1 and October 22, 2009 Resolution2 of the Court of
Appeals (CA) in CA-G.R. CV No. 87064 which affirmed the August 26, 2005 Decision 3 of the Regional Trial Court of Manila,
Branch 42 (RTC), in SP. Proc. No. 99-95225 disallowing the probate of the Last Will and Testament of Enrique S. Lopez.

The Factual Antecedents

On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and their four legitimate children, namely,
petitioner Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth de Leon (Marybeth) and
Victoria L. Tuazon (Victoria) as compulsory heirs. Before Enrique’s death, he executed a Last Will and Testament 4 on August 10,
1996 and constituted Richard as his executor and administrator.

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

After submitting proofs of compliance with jurisdictional requirements, Richard presented the attesting witnesses, namely:
Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary public who notarized the will, Atty.
Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses testified that after the late Enrique read and signed the will on
each and every page, they also read and signed the same in the latter's presence and of one another. Photographs of the
incident were taken and presented during trial. Manalo further testified that she was the one who prepared the drafts and
revisions from Enrique before the final copy of the will was made.

Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. Prior to August 10, 1996, the latter
consulted him in the preparation of the subject will and furnished him the list of his properties for distribution among his
children. He prepared the will in accordance with Enrique's instruction and that before the latter and the attesting witnesses
signed it in the presence of one another, he translated the will which was written in English to Filipino and added that Enrique
was in good health and of sound mind at that time.

On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon (Paraon), Officer-in-Charge of the Notarial
Section, Office of the Clerk of Court, RTC, Manila. His testimony centered mainly on their findings that Atty. Nolasco was not a
notary public for the City of Manila in 1996, which on cross examination was clarified after Paraon discovered that Atty. Nolasco
was commissioned as such for the years 1994 to 1997.

Ruling of the RTC

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

Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated October 26, 2005. 6

Ruling of the Court of Appeals

On March 30, 2009,7 the CA issued the assailed decision dismissing the appeal. It held that the RTC erroneously granted
Richard's appeal as the Rules of Court is explicit that appeals in special proceedings, as in this case, must be made through a
record on appeal. Nevertheless, even on the merits, the CA found no valid reason to deviate from the findings of the RTC that
the failure to state the number of pages of the will in the attestation clause was fatal. It noted that while Article 809 of the Civil
Code sanctions mere substantial compliance with the formal requirements set forth in Article 805 thereof, there was a total
omission of such fact in the attestation clause. Moreover, while the acknowledgment of the will made mention of "7 pages
including the page on which the ratification and acknowledgment are written," the will had actually 8 pages including the
acknowledgment portion thus, necessitating the presentation of evidence aliunde to explain the discrepancy. Richard's motion
for reconsideration from the decision was likewise denied in the second assailed Resolution 8 dated October 22, 2009.

Hence, the instant petition assailing the propriety of the CA's decision.

Ruling of the Court

The petition lacks merit.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil Code provide:

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. 1âwphi1 (underscoring
supplied)

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

The law is clear that the attestation must state the number of pages used upon which the will is written. The purpose of the law
is to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or decrease in
the pages.9

While Article 809 allows substantial compliance for defects in the form of the attestation clause, Richard likewise failed in this
respect. The statement in the Acknowledgment portion of the subject last will and testament that it "consists of 7 pages
including the page on which the ratification and acknowledgment are written" 10 cannot be deemed substantial compliance. The
will actually consists of 8 pages including its acknowledgment which discrepancy cannot be explained by mere examination of
the will itself but through the presentation of evidence aliund. 11 On this score is the comment of Justice J.B.L. Reyes regarding
the application of Article 809, to wit:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.12 (Emphasis supplied)

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

WHEREFORE, premises considered, the petition is DENIED.

SO ORDERED.
 SECOND DIVISION

G.R. No. 213994, April 18, 2018

MARGIE SANTOS MITRA, Petitioner, v. PERPETUA L. SABLAN-GUEVARRA, REMEGIO L. SABLAN, ET AL., Respondents.

DECISION

REYES, JR., J.:

This treats of a Petition for Review on Certiorari 1 of the Decision2 dated May 22, 2013 and Resolution3 dated August 15, 2014 of
the Court of Appeals (CA) in CA-G.R. CV No. 93671, which reversed the Decision 4 dated February 23, 2009 of the Regional Trial
Court (RTC), Branch 128 of Caloocan City in SP. Proc. Case No. C-3450.

ANTECEDENT FACTS

On June 26, 2006, Margie Santos Mitra (petitioner) filed a petition for the probate of the notarial will of Remedios Legaspi y
Reyes (Legaspi) with prayer for issuance of letters testamentary before the RTC. It was alleged that the petitioner is the de
facto adopted daughter of Legaspi; that Legaspi, single, died on December 22, 2004 in Caloocan City; that Legaspi left a
notarial will, instituting the petitioner, Orlando Castro, Perpetua Sablan Guevarra, and Remigio Legaspi Sablan, as her heirs,
legatees and devisees; that Legaspi left real and personal properties with the approximate total value of One Million Thirty-Two
Thousand and Two Hundred Thirty Seven Pesos (P1,032,237.00); and that Legaspi named Mary Ann Castro as the executor of
the will.5

Perpetua L. Sablan-Guevarra and Remegio L. Sablan (respondents), who claim to be Legaspi's legal heirs, opposed the petition.
They aver that the will was not executed in accordance with the formalities required by law; that since the last page of the will,
which contained the Acknowledgement, was not signed by Legaspi and her instrumental witnesses, the will should be declared
invalid; that the attestation clause failed to state the number of pages upon which the will was written; and that the will was
executed under undue and improper pressure, thus, Legaspi could not have intended the document to be her last will and
testament.6

THE RULING OF THE RTC

On February 23, 2009, the RTC rendered a Decision 7 admitting Legaspi's will to probate. The dispositive portion reads:
WHEREFORE, premises considered, this Court having been satisfied that the will was duly executed, and that the testator at
the time of its execution was of sound and disposing mind, and not acting under duress, menace and undue influence, or fraud,
the petition for the probate of the Huling Habilin at Pagpapatunay of the testator Remedios Legaspi is hereby granted.

The Huling Habilin at Pagpapatunay of the testator Remedios Legaspi dated September 27, 2004 is hereby allowed.

In the meantime, the hearing on the issuance of [the] letters testamentary to the named executor Mary Ann Castro is hereby
set on April 23, 2009.

SO ORDERED.8
The probate court explained that the last page of the will is but a mere continuation of the Acknowledgement portion, which the
testator and the witnesses are not required to sign. 9 Also, it held that inasmuch as the number of pages upon which the will was
written was stated in the Acknowledgement, the will must be admitted to probate. 10 The respondents' allegation of undue
influence or improper pressure exerted upon Legaspi was disregarded for failure on their part to adduce evidence proving the
existence thereof.11

Aggrieved, the respondents appealed to the CA.

THE RULING OF THE CA

In its assailed Decision12 dated May 22, 2013, the CA reversed the judgment of the RTC, as the CA adhered to the view of
strictly complying with the requirement of stating the number of pages of the will in the attestation clause. Moreover, the CA
detected another supposed fatal defect in the will: the photocopy of the will submitted by the respondents on appeal did not
contain the signatures of the instrumental witnesses on each and every page thereof. Thus, the CA disposed of the appeal in
this wise:
WHEREFORE, the appealed decision dated February 23, 2009 rendered by the Regional Trial Court, Branch 128 of Caloocan
City in Special Proceeding Case No. C-3450 for probate of the last will and testament of the deceased Remedios Legaspi y Reyes
is REVERSED AND SET ASIDE.

SO ORDERED.13
The respondents filed their motion for reconsideration a day late. Thus, the CA denied the same in a Resolution 14 dated August
15, 2014.

ISSUES

Whether the CA erred in finding that the instrumental witnesses to the will failed to sign on each and every page thereof on the
left margin, except the last, as required under Article 805 of the Civil Code
Whether the CA erred in ruling that the failure to state the number of pages comprising the will on the attestation clause
renders such will defective

THE RULING OF THE COURT

To begin with, the importance of complying with procedural rules can not be over emphasized these are tools designed to
facilitate the adjudication of cases.15 These are set in place to obviate arbitrariness, caprice, or whimsicality in the administration
of justice.16 Nevertheless, if a stringent application of the rules would hinder rather than serve the demands of substantial
justice, the former must yield to the latter. 17 "Litigations should, as much as possible, be decided on the merits and not on
technicalities."18

In Republic vs. Court of Appeals,19 the Court allowed the perfection of the appeal of the Republic, despite the delay of six (6)
days, since the Republic stands to lose hundreds of hectares of land already titled in its name. This was done in order to prevent
a gross miscarriage of justice. Also, in Barnes vs. Padilla,20 the Court suspended the rule that a motion for extension of time to
file a motion for reconsideration in the CA does not toll the fifteen-day period to appeal. The Court held that the procedural
infirmity was not entirely attributable to the fault of the petitioner and there was lack of any showing that the review sought is
merely frivolous and dilatory. Similarly, in Philippine Bank of Communications vs. Yeung ,21 the Court permitted the delay of
seven (7) days in the filing of the motion for reconsideration in view of the CA's erroneous application of legal principles to
prevent the resulting inequity that might arise from the outright denial of the petition.

In the present case, the petitioner's motion for reconsideration of the CA decision was indeed filed a day late. However, taking
into account the substantive merit of the case, and also, the conflicting rulings of the RTC and CA, a relaxation of the rules
becomes imperative to prevent the commission of a grave injustice. Verily, a rigid application of the rules would inevitably lead
to the automatic defeasance of Legaspi's last will and testament- an unjust result that is not commensurate with the petitioner's
failure to comply with the required procedure.

One of the issues raised by the petitioner entails an examination of the records of the case, as it pertains to the factual findings
of the CA. As a general rule, a petition for review on certiorari may only raise questions of law, as provided under Rule 45 of the
1997 Rules of Civil Procedure. Nevertheless, the Court will not hesitate to set aside the general rule when circumstances exist
warranting the same, such as in the present case, where the findings of fact of the probate court and CA are conflicting.
Additionally, it appears that the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion. 22

According to the CA, while Legaspi signed on the left margin of each and every page of her will, the instrumental witnesses
failed to do the same, in blatant violation of Article 805 of the Civil Code which states:
Article 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. (Emphasis supplied)
The petitioner, in assailing the findings of the CA, argues that in the original copy 23 of the will that was offered before the
probate court as Exhibit "L," it is clear that the instrumental witnesses signed on the left margin of every page of the will except
the last, as did Legaspi.24 The petitioner advances that the confusion arose when the respondents, in their record of appeal,
submitted an altered photocopy25 of the will to the CA, in which the signatures of the instrumental witnesses were covered when
photocopied, to make it appear that the witnesses did not sign on every page. This misled the CA to rule that the will was
defective for the lack of signatures.26

For their part, the respondents do not deny that the original copy of the will, as opposed to its photocopy, bore the signatures
of the instrumental witnesses on every page thereof, except the last. 27 However, they submit that they did not cause any
alteration to the photocopied version. They explain that since the folder holding the records of the case was bound on the left
margin and the pages may not be detached therefrom, the left portion of the will must have been unintentionally excluded or
cut-off in the process of photocopying.28

In any event, it is uncontested and can be readily gleaned that the instrumental witnesses signed on each and every page of
the will, except the last page. Such being the case, the CA erred in concluding otherwise. There is no doubt that the
requirement under the Article 805 of the Civil Code, which calls for the signature of the testator and of the instrumental
witnesses on each and every page of the will on the left margin, except the last, was complied with.

It should also be mentioned that the respondents take a skewed stance in insisting that the testator Legaspi and the
instrumental witnesses should have signed on the last page of the subject will. When Article 805 of the Civil Code requires the
testator to subscribe at the end of the will, it necessarily refers to the logical end thereof, which is where the last testamentary
disposition ends.29 As the probate court correctly appreciated, the last page of the will does not contain any testamentary
disposition; it is but a mere continuation of the Acknowledgment. 30

As to whether the failure to state the number of pages of the will in the attestation clause renders such will defective, the CA,
citing Uy Coque vs. Naves Sioca31 and In re: Will of Andrada, perceived such omission as a fatal flaw.32 In Uy Coque, one of the
defects in the will that led to its disallowance is the failure to declare the number of its pages in the attestation clause. The
Court elucidated that the purpose of requiring the number of pages to be stated in the attestation clause is to make the
falsification of a will more difficult. In In re: Will of Andrada, the Court deemed the failure to state the number of pages in the
attestation clause, fatal. Both pronouncements were, however, made prior to the effectivity of the Civil Code on August 30,
1950.

Subsequently, in Singson vs. Florentino,33 the Court adopted a more liberal approach and allowed probate, even if the number
of pages of the will was mentioned in the last part of the body of the will and not in the attestation clause. This is to prevent the
will of the testator from being defeated by purely technical considerations. 34

The substantial compliance rule is embodied in the Civil Code as Article 809 thereof, which provides that:
Article 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance with all the requirements of Article 805.
Thus, in Taboada vs. Hon. Rosal,35 the Court allowed the probate of a will notwithstanding that the number of pages was stated
not in the attestation clause, but in the Acknowledgment. In Azuela vs. CA,36 the Court ruled that there is substantial compliance
with the requirement, if it is stated elsewhere in the will how many pages it is comprised of.

What is imperative for the allowance of a will despite the existence of omissions is that such omissions must be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence. "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." 37

An examination of the will in question reveals that the attestation clause indeed failed to state the number of pages comprising
the will. However, as was the situation in Taboada, this omission was supplied in the Acknowledgment. It was specified therein
that the will is composed of four pages, the Acknowledgment included. As with the will, the Acknowledgment 38 is written in
Filipino, quoted in part below:
xxxx

Ang HULING HABILlNG ito ay binubuo ng apat (4) na dahon, kasama ang dahong kinaroroonan ng Pagpapatunay at
Pagpapatotoong ito.

x x x x39
In sum, Legaspi's last will and testament has substantially complied with all the formalities required of a notarial will. It has
been proven that Legaspi and the instrumental witnesses signed on every page of the will, except on the last, which refers to
the Acknowledgment page. With regard to the omission of the number of pages in the attestation clause, this was supplied by
the Acknowledgment portion of the will itself without the need to resort to extrinsic evidence. Contrary to the CA conclusion,
such omission does not in any way serve as hindrance to probate.

WHEREFORE, premises considered, the petition is GRANTED. The Decision dated May 22,2013 and Resolution dated August
15, 2014 of the Court of Appeals in CA-G.R. CV No. 93671 are hereby REVERSED and SET ASIDE. The Decision dated
February 23, 2009 of the Regional Trial Court, Branch 128 of Caloocan City in SP. Proc. Case No. C-3450
is REINSTATED and AFFIRMED. The case is remanded to the trial court for further proceedings.

SO ORDERED.
 FIRST DIVISION

[G.R. No. L-32213. November 26, 1973.]

AGAPITA N. CRUZ, Petitioner, v. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of
First Instance of Cebu, and MANUEL B. LUGAY, Respondents.

Paul G. Gorrez for Petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

DECISION

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court of First Instance of Cebu allowing the probate of the last will and
testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased, opposed
the allowance of the will (Exhibit "E"), alleging that the will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was executed without the testator having been fully informed of the contents 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. Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H.
Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the
presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public
to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of
them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:jgc:

"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 arrangements. Balinon v.
De Leon, 50 O. G. 583.) That function would be defeated if the notary public were one of the attesting or instrumental
witnesses. For them he would be interested in sustaining the validity of the will as it directly involves himself and the validity of
his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize
fraud (Report of the Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that a notary public may, in addition, act as a witness to the execution of the
document he has notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130) There are
others holding that his signing merely as a notary in a will nonetheless makes him a witness thereunder (Ferguson v. Ferguson,
47 S. E. 2d. 346; In Re Douglas’ Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v. Utterback, 122 So. 496;
In Re Baybee’s Estate 160 N. W. 900; 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 in the aforecited cases merely acted as instrumental, subscribing or attesting witnesses, and
not as acknowledging witnesses. Here the notary public acted not only as attesting witness but also as acknowledging witness,
a situation not envisaged by Article 805 of the Civil Code which reads:jgc:

"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 of 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 805 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 that purpose. In the circumstances, the law would not be duly observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of
Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

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

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

A.C. No. 5281             February 12, 2008

MANUEL L. LEE, petitioner,
vs.
ATTY. REGINO B. TAMBAGO, respondent.

RESOLUTION

CORONA, J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with
violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will.
Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses
to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which
he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent on June 30, 1965. 1 Complainant, however, pointed out
that the residence certificate2 of the testator noted in the acknowledgment of the will was dated January 5, 1962. 3 Furthermore,
the signature of the testator was not the same as his signature as donor in a deed of donation 4 (containing his purported
genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of donation were
"in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s]." 5

Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo.
He alleged that their signatures had likewise been forged and merely copied from their respective voters’ affidavits.

Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management
and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the certification of the chief
of the archives division dated September 19, 1999 stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June
30, 1965 and is available in this Office[’s] files .6

Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that
complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that
complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and actually
notarized by respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint
affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx." 9

Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant
against him in the Office of the Ombudsman "did not prosper."

Respondent did not dispute complainant’s contention that no copy of the will was on file in the archives division of the NCCA. He
claimed that no copy of the contested will could be found there because none was filed.

Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first file an
action for the declaration of nullity of the will and demand his share in the inheritance.

In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.10

In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law
as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly Canon 1 11 and
Rule 1.0112 of the Code of Professional Responsibility (CPR). 13 Thus, the investigating commissioner of the IBP Commission on
Bar Discipline recommended the suspension of respondent for a period of three months.

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as
 Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and
rules, and considering Respondent’s failure to comply with the laws in the discharge of his function as a notary public,
Atty. Regino B. Tambago is hereby suspended from the practice of law for one year and Respondent’s notarial
commission is Revoked and Disqualified from reappointment as Notary Public for two (2) years. 14

We affirm with modification.

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death. 15 A will may either be notarial or holographic.

The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding
the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee
their truth and authenticity.16

A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself.
In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one
another.17

The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be
considered void.18 This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws
shall be void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the
witnesses.19 The importance of this requirement is highlighted by the fact that it was segregated from the other requirements
under Article 805 and embodied in a distinct and separate provision. 20

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. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the
same is his or her own free act and deed.21 The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the
testator’s wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be
done.

A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly
nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the
notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in
the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.

As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and
those of notarization. As we held in Santiago v. Rafanan:22

The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party
to every document acknowledged before him had presented the proper residence certificate (or exemption from the
residence tax); and to enter its number, place of issue and date as part of such certification.

These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight
attached to notarized documents. 23 A notary public, especially a lawyer,24 is bound to strictly observe these elementary
requirements.

The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or
instrument:

Section 251. Requirement as to notation of payment of [ cedula] residence tax. – Every contract, deed, or other
document acknowledged before a notary public shall have certified thereon that the parties thereto have presented
their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by
the notary public as a part of such certificate the number, place of issue, and date of each [ cedula] residence certificate
as aforesaid.25

The importance of such act was further reiterated by Section 6 of the Residence Tax Act 26 which stated:

When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall
be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the
residence certificate showing payment of the residence taxes by such person xxx.

In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is
issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired
residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax Act.
As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo.

On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives
division, Article 806 provides:
 Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. 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)

Respondent’s failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause for
disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial
register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological order:

1. nature of each instrument executed, sworn to, or acknowledged before him;

2. person executing, swearing to, or acknowledging the instrument;

3. witnesses, if any, to the signature;

4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and

7. if the instrument is a contract, a brief description of the substance of the instrument. 27

In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a prior
entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To reinforce his
claim, he presented a photocopy of a certification 28 stating that the archives division had no copy of the affidavit of Bartolome
Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The proponent
must first prove the existence and cause of the unavailability of the original, 29 otherwise, the evidence presented will not be
admitted. Thus, the photocopy of respondent’s notarial register was not admissible as evidence of the entry of the execution of
the will because it failed to comply with the requirements for the admissibility of secondary evidence.

In the same vein, respondent’s attempt to controvert the certification dated September 21, 1999 30 must fail. Not only did he
present a mere photocopy of the certification dated March 15, 2000; 31 its contents did not squarely prove the fact of entry of
the contested will in his notarial register.

Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the performance of their duties,
otherwise, the confidence of the public in the integrity of notarized deeds will be undermined. 33

Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken
lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this case,
are no longer alive to identify the instrument and to confirm its contents. 34 Accordingly, respondent must be held accountable
for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty. 35

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. — The following derelictions of duty on the part of a notary public shall, in the
discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission:

xxx       xxx       xxx

(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the
manner required by law.

xxx       xxx       xxx

(f) The failure of the notary to make the proper notation regarding cedula certificates. 36

These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted transgressions
of Section 20 (a), Rule 138 of the Rules of Court 37 and Canon 138 and Rule 1.0139 of the CPR.

The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and
obey the laws of the land.40 For a lawyer is the servant of the law and belongs to a profession to which society has entrusted
the administration of law and the dispensation of justice. 41

While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes
responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover make
himself an example for others to emulate.42 Being a lawyer, he is supposed to be a model in the community in so far as respect
for the law is concerned.43

The practice of law is a privilege burdened with conditions. 44 A breach of these conditions justifies disciplinary action against the
erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has engaged in
professional misconduct.45 These sanctions meted out to errant lawyers include disbarment, suspension and reprimand.

Disbarment is the most severe form of disciplinary sanction. 46 We have held in a number of cases that the power to disbar must
be exercised with great caution47 and should not be decreed if any punishment less severe – such as reprimand, suspension, or
fine – will accomplish the end desired.48 The rule then is that disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an officer of the court. 49

Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his claims
that he "exercised his duties as Notary Public with due care and with due regard to the provision of existing law and had
complied with the elementary formalities in the performance of his duties xxx," we find that he acted very irresponsibly in
notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of law. It
is, as well, a sufficient basis for the revocation of his commission 50 and his perpetual disqualification to be commissioned as a
notary public.51

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the
Lawyer’s Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art.
806 of the Civil Code and (5) the provisions of the old Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial
commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer
of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public.

Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of the
Bar Confidant, as well as made part of the personal records of respondent.

SO ORDERED.
 FIRST DIVISION

[G.R. No. 74695. September 14, 1993.]

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR
ALVARADO, Petitioner, v. HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA
and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases),
and BAYANI MA. RINO, Respondents.

Vicente R. Redor for Petitioner.

Bayani Ma. Rino for and in his own behalf.

SYLLABUS

1. CIVIL LAW; PROBATE OF WILL; ART. 808, NEW CIVIL CODE; SCOPE OF THE TERM "BLINDNESS." — The following
pronouncement in Garcia v. Vasquez provides an insight into the scope of the term "blindness" as used in Art. 808, to wit: "The
rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . ." Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those
who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the
final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is
used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted
the will and codicil did so conformably with his instructions.

2. ID.; ID.; ID.; WILL MUST BE READ TWICE; PURPOSE. — 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.

3. ID.; ID.; ID.; SUBSTANTIAL COMPLIANCE THEREWITH, ACCEPTABLE; REASON. — 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. 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.

4. ID.; ID.; ID.; ID.; CASE AT BAR. — 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.

DECISION

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate
Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz,
Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited
an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before
Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the
execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the
eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies previously furnished them.

Meanwhile, Brigido’s holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same
month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre
5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator’s eye
operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the
case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who
read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the
notary public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator’s death on 3 January 1979 by private
respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed
an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law;
that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and
old age; that the will was executed under duress, or influence of fear or 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 were executed; that since
the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased’s last will and
codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado
was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art.
808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental
witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then
concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making
known to the testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purposes 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:jgc:

"Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing, witnesses, and again, by
the notary public before whom the will is acknowledged."

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so
considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court
a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were interpreted in layman’s terms by Dr. Ruperto Roasa, whose expertise was admitted by
private Respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer
read either printed or handwritten matters as of 14 December 1977, the day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the
will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the testator was still capable of
reading at that time, the court a quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent’s staunch contention that the testator was still capable of reading at the time his will and codicil were
prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10
"defective," 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading for him.

The following pronouncement in Garcia v. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art.
808, to wit:jgc:

"The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . ."

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on
the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us
but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents
were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably
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 is a strict 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 documents were of his own free will. Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured
that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known
to him since childhood.

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

As a final word to convince petitioner of the propriety of the trial court’s Probate Order and its affirmance by the Court of
Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:jgc:
"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 for the mere reason that a legal requirement intended for his protection was not
followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make
known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is
AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs
against petitioner.

SO ORDERED.

Cruz, Griño-Aquino, Davide, Jr. and Quiason, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R.
ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of First Instance
of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter
of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother
of the deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted
to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana
Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July
21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased
Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my
win which I want to be respected although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus
who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both
recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased
mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date
when said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force, intimidation
and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not
intend, nor could have intended the said Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he
found to have been duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the
deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that
the Will should contain the day, month and year of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the holographic
Will on the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive portion of
the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby
disallowed for not having been executed as required by the law. The order of August 24, 1973 is hereby set
aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus
is a valid compliance with the Article 810 of the Civil Code which reads:

ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator
to state in his holographic Win the "year, month, and day of its execution," the present Civil Code omitted the phrase Año mes y
dia and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article
810 of the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends
that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana
Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of
these is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal
construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding
the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the
purpose of which, in case of doubt is to prevent intestacy —

The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project
consists in the liberalization of the manner of their execution with the end in view of giving the testator more
freedom in expressing his last wishes, but with sufficien safeguards and restrictions to prevent the commission
of fraud and the exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the formalities in the execution of wills.
(Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos  (27 SCRA 327) he emphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last will and testament on the
ground that any disposition made by the testator is better than that which the law can make. For this reason,
intestate succession is nothing more than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been
executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise
thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be considered in the application of
any given rule. If the surrounding circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the requirements of the law, the inclination
should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate,
although the document may suffer from some imperfection of language, or other non-essential defect. ...
(Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient
if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abanga 40
Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the
same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no
such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there
any substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus
was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to
its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their
mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the
oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the
holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as
in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing
the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of

Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED
and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente
Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged
that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and
was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero.
He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said
property could not be conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of the will, its
due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the will actually
executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to the question of its due execution, and not to the
question of identity of will. No other will was alleged to have been executed by the testatrix other than the will
herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate
must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the
testatrix.

xxx xxx xxx

While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was
indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have
convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in question was written to be the
genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the
law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been
complied with.
 xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself
has testified in Court that the testatrix was completely in her sound mind when he visited her during her
birthday celebration in 1981, at or around which time the holographic will in question was executed by the
testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew
the value  of the estate to be disposed of, the proper object  of her bounty, and the character of the
testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her
estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects
of her bounty were likewise identified explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there is more than sufficient showing that
she knows the character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix
has to be resolved in favor of the allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will.
While it was alleged that the said will was procured by undue and improper pressure and influence on the part
of the beneficiary or of some other person, the evidence adduced have not shown any instance where
improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified
that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of
her own. Her independence of character and to some extent, her sense of superiority, which has been testified
to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to
the making of a will and not as to the specific testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the
disallowance of the will herein.

Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate
succession should be preferred over intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will
submitted herein must be admitted to probate. 3 (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals
found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with
Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and
the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the
time of prior dispositions.

Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must
authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that
the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of
some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;
 (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of
its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

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

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to
probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its
signing were the voluntary acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the
formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919),  that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the
laws on this 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 last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic
or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably
handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these
dispositions  cannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814.
In the case of Kalaw vs. Relova 132 SCRA 237 242  (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic
Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary
when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida
en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in
disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites
required in Article 688.
 Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution,
written in its entirety by the testator and signed by him, and must contain a statement of the year, month and
day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them over his
signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code
— and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass
upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated
March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171,
dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.